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Exhibit 3.3
AGREEMENT
THIS AGREEMENT DATED AS OF MAY 26 , 1999 BY AND AMONG:
OMNINET INTERNATIONAL LIMITED, a
corporation incorporated
pursuant to the laws of Bermuda
and having its Registered Office
at Richmond House, 5th Floor, 12
Par-la-Ville Road, Hamilton, HM
11, Bermuda.
(hereinafter referred to as
"Omninet")
OF THE FIRST PART
-and-
COLLOQUIUM LIMITED, incorporated
under the Companies Act 1985 in
Scotland (Company Number 142248)
and having its registered office
at 101 Abercorn Street, Paisley
PA3 4AT, Scotland.
(hereinafter referred to as
"Colloquium")
OF THE SECOND PART
-and-
MR. BRIAN MCMILLAN, an
individual who is resident at 7
Steeple Square, Kilbarchan, PA10
2JD, Scotland.
(hereinafter referred to as
"McMillan")
OF THE THIRD PART
-and-
MR. ERIC KOHN, an individual who
is resident at Carabot CH-1213,
Onex/Geneva, Switzerland
(hereinafter referred to as
"Kohn")
OF THE FOURTH PART
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WHEREAS McMillan is a shareholder of Omninet and a Director of Colloquium a
wholly owned subsidiary of Omninet;
AND WHEREAS Omninet and Colloquium, and Omninet and McMillan wish to severe
their relationship through a share exchange as set out in more detail herein;
AND WHEREAS Kohn is a shareholder of Omninet and a director of Omninet ;
AND WHEREAS the parties hereto wish to provide for the mutual release of
each other on the terms set out herein;
NOW THEREFORE in consideration of the mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I - DEFINITIONS
1.1 As used in this agreement capitalized words shall have the meaning given
thereto herein.
1.2 Words importing the masculine gender herein include the feminine and vice
versa.
1.3 Words importing a person include an individual, partnership, company or
association or body of such persons whether corporate or unincorporate, trustee,
executor, administrator and legal representative.
ARTICLE II - SHARE EXCHANGE
2.1 Each of McMillan and Omninet hereby agree to the following share exchange:
(a) Each shareholder of Omninet will be offered a choice by the board of
directors of Omninet, they will either retain their shares in Omninet
(without Colloquium) or they will be able to exchange their shares in
Omninet for shares in Colloquium.
(b) Those shareholders who choose to exchange their Omninet shares will
receive a pro rata number of the total ordinary shares in Colloquium
held by Omninet equal to their pro rata share of the total number of
Omninet shares to be exchanged.
(c) For each Omninet share that is exchanged the sum of U.S.$0.05 will be
transferred by Omninet to Colloquium.
(d) Each shareholder of Omninet must either retain all of their shares in
Omninet or they must exchange all of their shares for shares in
Colloquium. Shareholders of Omninet will not be given the option of
exchanging only a portion of their shares.
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(e) After the share exchange Omninet will retain no shares in Colloquium
and those shareholders of Omninet who agreed to exchange shares will
retain no shares in Omninet
(f) McMillan irrevocably agrees to exchange all of his shares in Omninet
for his pro rata share of shares in Colloquium.
(g) Kohn irrevocably agrees not to exchange all of his shares in Omninet
for his pro rata share of shares in Colloquium.
2.2 Each of Omninet, its officers and directors, and Colloquium, its officers
and directors agree to use their reasonable efforts to obtain the consent
of the shareholders of Omninet to this agreement.
2.3 The share exchange will be presented to the Shareholders of Omninet by the
Board of Directors of Omninet within 7 days of completion of this
agreement.
2.4 The Board of Directors of Omninet will submit to the shareholdersa written
resolution in lieu of meeting to resolve the share exchange within 14 days
of completion of this agreement.
ARTICLE III - AUDIT OF COLLOQUIUM
3.1 Colloquium will be pay the audit costs of Colloquium for the year ended
February 28, 1999. The parties hereto agree that the audit will be
performed by Moore Stephens, Chartered Accountants of London, England. Each
of Colloquium, its officers and directors and Omninet its officers and
directors agree to cooperate with the auditors to ensure that the audit is
completed in a timely manner and at the best cost available to Colloquium.
3.2 Omninet hereby agrees to pay the outstanding invoice to Omninet for Pound
Sterling 18,000 from by Moore Stephens, Chartered Accountants of London,
England relating to the work carried out prior to the Omninet regulation D
offering.
ARTICLE IV - MUTUAL RELEASE
4.1 McMillan hereby releases each of Omninet, its officers, directors and
shareholders (in their personal capacity as well) from any claim, action,
liability or proceeding now or in the future in respect of anything done, said
or not done or said prior to the date hereof. In addition Mr. McMillan agrees
that he will take no actions in respect of any objection he has made to any
meeting of the members of Omninet or any proceedings of the board of Omninet.
4.2 Kohn hereby releases each of Colloquium, its officers, directors and
shareholders (in their personal capacity as well) from any claim, action,
liability or proceeding now or in the future in respect of anything done, said
or not done or said prior to the date hereof.
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4.3 Omninet, its officers and directors hereby releases McMillan and Colloquium
its officers, directors and shareholders (in their personal capacities as well)
from any claim, action, liability or proceeding now or in the future in respect
of anything done, said or not done or said prior to the date hereof.
4.3 Colloquium, its officers and directors hereby release Omninet, its
officers, directors and shareholders (in their personal capacities as well) from
any claim, action, liability or proceeding now or in the future in respect of
anything done, said or not done or said prior to the date hereof.
4.4 Each of Kohn, McMillan, Colloquium and Omninet and their respective
officers and directors agrees to refrain from making any allegations in the
future regarding the conduct of any other prior to the date hereof.
4.5 Each of McMillan, Kohn, Colloquium and Omninet and their respective
officers and directors hereby withdraws any previous statements made in regard
to the improporiety of any actions taken by the others in the past.
ARTICLE V - LIABILITIES
5.1 Omninet and its officers and directors hereby confirm that it has not
committed Colloquium to any liabilities which are not known to McMillan or the
directors of Colloquium.
5.2 McMillan hereby confirms that he has not committed Omninet to any
liabilities which are not known to Omninet's officers and directors.
5.3 Kohn hereby confirms that he has not committed Colloquium to any
liabilities which are not known to Colloquium's officers and directors.
5.3 Colloquium and its directors and officers hereby confirm that they have not
committed Omninet to any liabilities which are not known to Omninet's officers
and directors.
ARTICLE VI - MISCELLANEOUS
6.1 This Agreement is subject to approval by the shareholders of Omninet. This
Agreement shall be binding upon the parties from the date hereof. If this
Agreement is approved by the shareholders of Omninet this Agreement shall remain
binding upon the parties hereto. If this agreement is not approved by the
shareholders of Omninet this agreement shall become null and void.
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6.2 This agreement shall be governed by and construed in accordance with the
laws of the Islands of Bermuda. The Courts of Bermuda shall have exclusive
jurisdiction over any dispute pursuant to this agreement.
6.3 To the extent any provision of this agreement shall be determined to be
invalid or unenforceable such provision shall be deleted from this agreement and
the validity or enforceability of the remainder of this agreement shall be
unaffected.
6.4 This agreement evidences the entire agreement between the parties hereto.
This agreement may only be amended by a written document executed by all parties
hereto.
6.5 This agreement shall be binding upon and shall enure to the benefit of the
parties hereto and their respective successors and permitted assigns.
6.6 Each party hereto shall be responsible for their own legal costs in respect
of this agreement and the completion of the transactions contemplated hereby.
6.7 This agreement may be signed in any number of counterparts and all such
counterparts taken together shall be one and the same instrument.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the day
and year first written above.
OMNINET INTERNATIONAL LIMITED
PER: /s/ (illegible signature)
---------------------------
COLLOQUIUM LIMITED
PER: /s/ (illegible signature)
---------------------------
/s/ (illegible signature) /s/ Brian McMillan
- - ------------------------- --------------------------------
WITNESS MR. BRIAN MCMILLAN
/s/ (illegible signature) /s/ Eric Kohn
- - ------------------------- --------------------------------
WITNESS MR. ERIC KOHN
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