AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of this 24th day of September, 1997 by and between VictorMaxx
Technologies, Inc., an Illinois corporation, (hereinafter referred to as
"VMTI"), and Sonoma Holding Corp., an Illinois corporation, (hereinafter
referred to as "SONOMA") and the holders of all of the SONOMA outstanding shares
(the "Shareholders"), as listed on Exhibit A and on the signatory pages
hereafter.
RECITALS:
A. VMTI desires to acquire all of the issued and outstanding capital stock
of SONOMA and SONOMA desires to exchange all of its shares of SONOMA capital
stock for shares of VMTI authorized but unissued shares of stock as hereinafter
provided.
B. It is the intention of the parties hereto that: (i) VMTI shall acquire
all of the issued and outstanding capital stock of SONOMA in exchange solely for
the number of shares of VMTI authorized but unissued shares of Common Stock, par
value $.001 ("Common Stock"), and Convertible Preferred Stock, par value $.001
("Preferred Stock"), set forth below (the "Exchange"); (ii) the Exchange shall
qualify as a tax free reorganization under Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended, and related sections thereunder; and (iii) the
Exchange shall qualify as a transaction in securities exempt from registration
or qualification under the Securities Act of 1933, as amended, and under the
applicable securities laws of each state or jurisdiction where the Shareholders
reside.
C. The board of directors of VMTI deem it to be in the best interest of
VMTI and its shareholders to acquire all of the issued and outstanding capital
stock of SONOMA.
D. The board of directors of SONOMA deem it to be in the best interest of
its shareholders to exchange all of the capital stock of SONOMA for shares of
VMTI authorized but unissued shares of common stock, as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES AND CREDITOR SETTLEMENTS
1.1 Exchange of Shares. VMTI and the Shareholders hereby agree that the
Shareholders shall, on the Closing Date (as hereinafter defined), exchange all
of the issued and outstanding shares of the SONOMA capital stock in the ratio of
approximately 1,210.8558 shares of VMTI Common stock and 10 shares of VMTI
Preferred Stock (collectively sometimes referred to as the "VMTI Shares") for
each SONOMA share for a total of 12,108,558 shares of VMTI Common Stock and
100,000 shares of VMTI Preferred Stock (provided that each share of VMTI
Preferred Stock is convertible into 300 shares of VMTI Common Stock). The number
of shares of SONOMA capital stock owned by each Shareholder and the number of
shares of Common Stock and Preferred Stock which each will receive in Exchange
is set forth in Exhibit A hereto. Additionally, on the Closing, certain
creditors of VMTI (will receive shares of the Common Stock of VMTI as
settlements of their claims against VMTI and certain individuals of the so
called "restructuring group" will receive shares of the Common Stock as
compensation for work performed on this transaction and as settlements of
various employment agreements. The creditors of VMTI will receive up to
1,550,000 shares of VMTI Common Stock and the "restructuring group" up to
615,000 shares of VMTI Common Stock, both groups being listed on
Exhibit B, along with the allocation to each. VMTI will deliver
certificates representing the VMTI Shares and Options to the individuals
included in these two groups on the date of the Closing. In addition, SONOMA has
agreed to pay certain creditors of VMTI prior to Closing as are set forth on
Schedule 1.1 attached hereto and made a part hereof.
1.2 Delivery of Shares. On the Closing Date, the Shareholders will deliver
to VMTI the certificates representing the shares, duly endorsed (or with
executed stock powers) so as to make VMTI the sole owner thereof.
Simultaneously, VMTI will deliver certificates representing the VMTI Shares to
the Shareholders. The Exchange shall not be effected unless a minimum of
one-hundred (100%) percent of SONOMA's outstanding shares of capital stock are
delivered to VMTI on the Closing Date.
1.3 Investment Intent. The VMTI Shares have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be resold unless the
VMTI Shares are registered under the Act or an exemption from such registration
is available. The Shareholders represent and warrant that each of them is
acquiring the VMTI Shares for his own account, for investment, and not with a
view to the sale or distribution of the VMTI shares. Each certificate
representing the VMTI Shares will have a legend thereon incorporating language
or substantial similar language, as follows:
"The Shares represented by the certificate have not been registered under
the Securities Act of 1933, as amended (the "Act"). The shares have been
acquired for investment and may not be sold or transferred in the absence
of an effective Registration Statement for the shares under the Act unless
in the opinion of counsel satisfactory to the Company, registration is not
required under the Act."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SONOMA
SONOMA hereby represents and warrants as follows:
2.1 Organization and Good Standing: Ownership of Shares.
SONOMA is a corporation duly organized, validly existing and in good standing
under the laws of the State of Illinois. It has the corporate power to own its
own property and to carry on its business as now being conducted and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material impact. There are no outstanding
subscriptions, rights, options, warrants or other agreements obligating SONOMA
to issue, sell or transfer any stock or other securities of SONOMA except the
warrants and options listed on Schedule 2.1 attached hereto and made a part
hereof.
2.2 Corporate Authority. SONOMA has the corporate power to enter into this
Agreement and to perform their respective obligations hereunder. The execution
and delivery of this Agreement and the consummation of the transaction
contemplated hereby have been duly authorized by the Board of Directors of
SONOMA. The execution and performance of this Agreement will not constitute a
material breach of any agreement, indenture, mortgage, license or other
instrument or document to which SONOMA is a party and will not violate any
judgment, decree, order, writ, rule, statute, or regulation applicable to SONOMA
or its properties. The execution and performance of this Agreement will not
violate or conflict with any provision of the respective Articles of
Incorporation or by-laws of SONOMA.
2.3 Ownership of Shares. The Shareholders are the owner of record and
beneficially of 10,000 shares of common stock of SONOMA, which shares are free
and clear of all rights, claims, liens and encumbrances, and have not been sold,
pledged, assigned or otherwise transferred except pursuant to this Agreement.
The shares represent all of the outstanding capital
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stock of SONOMA.
2.4 Financial Statements, Books and Records. Schedule 2.4 consists of the
unaudited financial statements of SONOMA as of June 30, 1997 (the "Financial
Statements"). The Financial Statements fairly represent the financial position
of SONOMA as at such date and the results of their operations for the periods
then ended. The Financial Statements were prepared in accordance with generally
accepted accounting principles applied on a consistent basis with prior periods
except as otherwise stated therein. The books of account and other financial
records of SONOMA are in all respects complete and correct in all material
respects and are maintained in accordance with good business and accounting
practices.
2.5 Access to Records. The corporate financial records, minute books and
other documents and records of SONOMA have been made available to VMTI prior to
the Closing hereof. In the event SONOMA may acquire or purchase another entity
prior to Closing, SONOMA will share with VMTI whatever information SONOMA is
permitted to show and whatever SONOMA may deem appropriate under the
circumstances. In the event SONOMA contemplates any conversion of its debt to
equity before the Closing, SONOMA will so advise VMTI prior to Closing.
2.6 No Material Adverse Changes. Since the date of the Financial
Statements there has not been:
(i) any material adverse changes in the financial position of
SONOMA except changes arising in the ordinary course of business,
which changes will in no event materially and adversely affect the
financial position of SONOMA;
(ii) any damage, destruction or loss materially affecting the
assets prospective business, operations or condition (financial or
otherwise) of SONOMA whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or
repurchase of SONOMA's capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by SONOMA of any properties
or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
2.7 Taxes. SONOMA by the Closing Date, will have filed all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed and has (or will have) paid or made adequate provisions for
all taxes or assessments which have become due as of the Closing Date.
2.8 Compliance with Laws. SONOMA has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of SONOMA.
2.9 No Breach. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not:
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(i) violate any provision of the Articles of Incorporation or
By-Laws of SONOMA;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give
any other contracting party the right to terminate, or constitute
(or with notice or lapse of time or both constitute) a default
under, any contract or other agreement to which SONOMA is a party or
by or to which it or any of its assets or properties may be bound or
subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against,
or binding upon, SONOMA or upon the properties or business of
SONOMA; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein
which could have a materially adverse effect on the business or
operations of SONOMA.
2.10 Actions and Proceedings. SONOMA is not a party to any material
pending litigation or, to its knowledge, and governmental investigation or
proceeding not reflected in the SONOMA Financial Statements, and to its best
knowledge, no material litigation, claims, assessments or any governmental
proceedings are threatened against SONOMA except as set forth on Schedule 2.10
attached hereto and made a part hereof.
2.11 Agreements. Schedule 2.11 sets forth any material contract or
arrangement to which SONOMA is a party or by or to which it or its assets,
properties or business are bound or subject, whether written or oral.
2.12 Brokers or Finders. No broker's or finder's fee will be payable by
SONOMA in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by SONOMA or any of its
Shareholders except appearing on Schedule 2.12 and 3.14 as one Schedule attached
hereto and made apart hereof.
2.13 Real Estate. Except as set forth on Schedule 2.13, SONOMA owns no
real property or is a party to any leasehold agreement.
2.14 Tangible Assets. SONOMA has full title and interest in all machinery,
equipment, furniture, leasehold improvements, fixtures, projects, owned or
leased by SONOMA, any related capitalized items or other tangible property
material to the business of SONOMA (the "Tangible Assets"). SONOMA holds all
rights, title and interest in all the Tangible Assets owned by it on the Balance
Sheet or acquired by it after the date on the Balance Sheet free and clear of
all liens, pledges, mortgages, security interests, conditional sales contracts
or any other encumbrances. All of the Tangible Assets are in good operating
condition and repair and are usable in the ordinary course of business of SONOMA
and conform to all applicable laws, ordinances and government orders, rules and
regulations relating to their construction and operation.
2.15 Liabilities. SONOMA did not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including, without limitation, any
liability on account of taxes, any governmental charge or lawsuit (all of the
foregoing collectively defined to as "Liabilities"), which are not fully, fairly
and adequately reflected on the Financial Statement except for a specific
Liabilities set forth on Schedule 2.15 attached hereto and made a part hereof.
As of the Closing Date,
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SONOMA will not have any Liabilities, other than Liabilities fully and
adequately reflected on the Financial Statements except for Liabilities incurred
in the ordinary course of business. To the best knowledge of the Shareholders,
there is no circumstance, condition, event or arrangement which may hereafter
give rise to any Liabilities not in the ordinary course of business.
2.16 Operations of SONOMA. From the date of the Financial Statements
through the Closing Date hereof SONOMA has not and will not have:
(i) incurred any indebtedness or borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or
indirect redemption, retirement, purchase or other acquisition of
any shares in its capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or
made any other loan or advance otherwise than in the ordinary course
of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due
and payable);
(v) disposed of any assets of SONOMA except in the ordinary
course of business;
(vi) materially increased the annual level of compensation of
any executive employee of SONOMA;
(vii) increased, terminated, amended or otherwise modified any
plan for the benefit of employees of SONOMA.
(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
2.17 Capitalization. The authorized capital stock of SONOMA consists of
10,000 shares of common stock, no par value, of which 10,000 shares are
presently issued and outstanding. SONOMA has not granted, issued or agreed to
grant, issue or make any warrants, options, subscription rights or any other
commitments of any character relating to the issued or unissued shares of
capital stock of SONOMA except for the warrants and options set forth on
Schedule 2.1 attached hereto and made a part hereof.
2.18 Material Statements and Facts. No representation or warranty by
SONOMA in this Agreement or in any document or schedule to be delivered by them
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished VMTI pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to complete and correct presentation of all material aspects of the business of
SONOMA.
2.19 Disclosure. SONOMA has (and at the Closing it will have) disclosed in
writing all events, conditions and facts materially affecting the business,
financial conditions or results of
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operation of SONOMA, all of which have been set forth herein. SONOMA has not now
and will not have, at the Closing, withhold disclosure of any such events,
conditions and facts which they have knowledge of or have reasonable grounds to
know may exist.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF VMTI
VMTI hereby represents and warrants as follows:
3.1 Organization and Good Standing. VMTI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois.
It has the corporate power to own its own property and to carry on its business
as now being conducted and is duly qualified to do business in any jurisdiction
where so required except where the failure to so qualify would have no material
negative impact, except as set forth on Schedule 3.1.
3.2 Corporate Authority. VMTI has the corporate power to enter into this
Agreement and to perform their respective obligations hereunder. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of VMTI.
The execution and performance of this Agreement will not constitute a material
breach of any agreement, indenture, mortgage, license or other instrument or
document to which VMTI is a party and will not violate any judgment, decree,
order, writ, rule, statute, or regulation applicable to VMTI or its properties.
The execution and performance of this Agreement will not violate or conflict
with any provision of the respective Articles of Incorporation or by-laws of
VMTI.
3.3 The VMTI Shares. As of the Closing Date, the VMTI shareholders are the
owners of 5,726,442 shares of VMTI Common Stock, none of whom owns in excess of
5% of the issued and outstanding shares, except as may be set forth on Schedule
3.3 attached hereto and made a part hereof, and no shares of Preferred Stock has
been issued except as may be set forth on Schedule 3.3 attached hereto and made
a part hereof. There are outstanding warrants, issued stock options, stock
rights or other commitments of any character relating to the issued or unissued
shares of capital stock of VMTI all of which are set forth on Schedule 3.3
attached hereto. The VMTI shares set forth herein represent all of the
outstanding capital stock of VMTI.
At the Closing, the VMTI Shares to be issued and delivered to the SONOMA
Shareholders hereunder will when so issued and delivered, constitute valid and
legally issued shares of VMTI capital stock, fully-paid and nonassessable.
3.4 Financial Statement: Books and Records. Schedule 3.4 consists of the
audited financial statements of VMTI for the fiscal year ended December 31, 1996
and interim unaudited financial statements (collectively the "Financial
Statements"). The Financial Statements fairly represent the financial position
of VMTI as at such date and the results of their operations for the periods then
ended. The Financial Statements were prepared in accordance with generally
accepted accounting principles applied on a consistent basis with prior periods
except as otherwise stated therein. The books of account and other financial
records of VMTI are in all respects complete and correct in all material
respects and are maintained in accordance with good business and accounting
practices.
3.5 No Material Adverse Changes.
Since the date of the interim unaudited financial statements on Schedule
3.4;
(i) there has not been any material adverse changes in the
financial
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position of VMTI except changes arising in the ordinary course of
business, which changes will in no event materially and adversely
affect the financial position of VMTI and the proposed audit will be
consistent with the representations made by VMTI to SONOMA.
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or
otherwise) of VMTI whether or not covered by insurance;
(iii) any declaration setting aside or payment of any dividend
or distribution with respect to any redemption or repurchase of VMTI
capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage pledge by VMTI of any properties or
assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
3.6 Taxes. VMTI has (or by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
3.7 Compliance with Laws. VMTI has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business, which, if not
complied with, would materially and adversely affect the business of VMTI or the
trading market for the VMTI Shares and specifically, and to the best of its
knowledge VMTI complied with provisions for registration under the Securities
Act of 1933 and all applicable blue sky laws in connection with its public stock
offering and there are no outstanding, pending or threatened stop orders or
other actions or investigations relating thereto.
3.8 Actions and Proceedings. VMTI is not a party to any material pending
litigation or, to its knowledge, any governmental proceedings are threatened
against VMTI, except as set forth on Schedule 3.8 attached hereto and made a
part hereof.
3.9 Periodic Reports. VMTI has delivered to SONOMA true and complete
copies of Forms 10-K and 10-Q report pursuant to SEC Rules and Regulations for
reporting companies under the Securities Exchange Act of 1934, as amended as
well as the prospectus filed in 1995 with the SEC under the Act. As of their
respective dates, such reports and statements did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstance under which they were made, not misleading. VMTI presently has no
subsidiaries. Schedule 3.9 sets forth all of the documentation of such reports
VMTI has delivered to SONOMA.
3.10 Disclosure. VMTI has (and at the Closing it will have) disclosed in
writing all events, conditions and facts materially affecting the business,
financial conditions or results of operation of VMTI all of which have been set
forth herein. VMTI has not now and will not have, at the Closing, withhold
disclosure of any such events, conditions, and facts which they have knowledge
of or have reasonable grounds to know may exist.
3.11 Capitalization. The authorized Capital Stock of VMTI consists of
20,000,000 shares of Common Stock of which 5,726,442 shares of VMTI Common Stock
are issued and
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outstanding and has authorized 1,000,000 shares of Preferred Stock of which none
is issued and outstanding.
3.12 Access to Records. The corporate financial records, minute books, and
other documents and records of VMTI have been made available to SONOMA prior to
the closing hereof.
3.13 No Breach. The execution, delivery and performance of this of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of VMTI;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give
any other contracting party the right to terminate, or constitute
(or with notice or lapse of time or both constitute) a default
under, any contract or other agreement to which VMTI is a party or
by or to which it or any of its assets or properties may be bound or
subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against,
or binding upon, VMTI or upon the securities, properties or business
to VMTI; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein.
3.14 Brokers or Finders. No broker's or finder's fee will be payable by
VMTI in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions of VMTI except
appearing of Schedule 2.12 and 3.14 as one Schedule attached hereto and made a
part hereof.
3.15 OTC Bulletin Board. VMTI shares are listed on the OTC Bulletin Board
under the symbol "VMAX". No representation is being made by VMTI of any trading
of the shares of VMTI. At the Closing Date, VMTI's Rule 15c2-11 documentation,
reports required to be filed with the SEC (but as of the date of this Agreement,
VMTI states that it is not current with such reports), as discussed above shall
have been updated and shall be current in all material respects, except as may
appear on Schedule 3.15, attached hereto which exceptions shall be permitted
only by the written consent of SONOMA.
3.16 Authority to Execute and Perform Agreements. VMTI has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully its obligations hereunder. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of VMTI enforceable in accordance with its terms, except as may be
limited by bankruptcy, moratorium, insolvency or other similar laws generally
affecting the enforcement of creditors' rights. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
the performance by VMTI of this Agreement, in accordance with its respective
terms and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body or the approval or consent of any other person;
(ii) conflict with or result in any breach or violation of any
of the
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terms and conditions of, or constitute (or with any notice or lapse
of time or both would constitute) a default under, any order,
judgment or decree applicable to VMTI, or any instrument, contract
or other agreement to which VMTI is a party or by or to which VMTI
is bound or subject; or
(iii) result in the creation of any lien or other encumbrance
on the assets or properties of VMTI
3.17 Material Statements and Facts. No representation or warranty by VMTI
in this Agreement or in any document or schedule to be delivered by them
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished by VMTI pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement contains or will contain
any untrue statement of a material fact or omits or will omit to state any fact
necessary to make any statement herein or therein not materially misleading or
necessary to complete and correct presentation of all material aspects of the
business of VMTI.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions Precedent to the Obligation of SONOMA. All obligations of
SONOMA under this Agreement are subject to the fulfillment, prior to or as of
the Closing Date, as indicated below, of each of the following conditions:
(a) The representations and warranties by or on behalf of VMTI
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of
Closing Date as though such representations and warranties were made at and as
of such time.
(b) VMTI shall have performed and complied in all material respects,
with all covenants, agreements, and conditions set forth in, and shall have
executed and delivered all documents required by this Agreement to be performed
or complied with or executed and delivered by them prior to or at the Closing.
(c) On or before the Closing, the Board of Directors of VMTI shall
have approved in accordance with Illinois law the execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated herein and authorizing all of the necessary and proper action to
enable VMTI to comply with the terms of the Agreement including the election of
SONOMA's nominees to the Board of Directors of VMTI.
(d) The Exchange shall be permitted by Illinois law and VMTI shall
have sufficient shares of VMTI's capital stock authorized to complete the
Exchange.
(e) On the Closing Date, the Board of Directors shall include
persons designated by SONOMA. Richard Currie, Max Minkoff and Glenn Peterson,
shall resign as an officer, director (and any other persons) shall resign as
officers and directors of VMTI.
(f) At the Closing, all instruments and documents delivered to
SONOMA Shareholders pursuant to provisions hereof shall be reasonably
satisfactory to legal counsel for SONOMA.
(h) At the Closing, VMTI shall have delivered to SONOMA an opinion
of counsel dated as of the Closing to the effect that:
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(i) VMTI is a corporation duly organized, validly existing and
in good standing under the laws of the State of Illinois;
(ii) This Agreement has been duly authorized executed and
delivered by VMTI and is a valid and binding obligation of VMTI
enforceable in accordance with its terms;
(iii) VMTI through its Board of Directors have taken all
corporate action necessary for performance under this Agreement;
(iv) The documents executed and delivered to SONOMA and the
SONOMA Shareholders hereunder are valid and binding in accordance
with their terms and vest in SONOMA, any notices of notes, warrants
and options, if any, as the case may be, all right, title and
interest in and to the shares of VMTI shares to be issued pursuant
to section 1.1 hereof, and such shares of capital stock issued will
be duly and validly issued, fully-paid and nonassessable; and
(v) VMTI has the corporate power to execute, deliver and
perform under this Agreement.
(i) The shares of restricted VMTI capital stock to be issued to
SONOMA Shareholders at Closing will be validly issued, nonassessable and
full-paid under Illinois corporation law and will be issued in a non-public
offering and isolated transaction in compliance with all federal and state
securities laws, bearing a restrictive legend, as is more fully set forth above.
4.2 Conditions Precedent to the Obligations of VMTI. All obligations of
VMTI under this Agreement are subject to the fulfillment, prior to or at
Closing, of each of the following conditions:
(a) The representations and warranties by SONOMA and its
shareholders, contained in this Agreement or in any certificate or
document delivered pursuant to the provisions hereof shall be true in all
material respects at and as of the Closing as though such representations
and warranties were made at and as of such time;
(b) SONOMA shall have performed and complied with, in all material
respects, with all covenants, agreements, and conditions set forth in, and
shall have executed and delivered all documents required by this Agreement
to be performed or complied or executed and delivered by them prior to or
at the Closing;
(c) SONOMA shall deliver on behalf of its shareholders to VMTI a
letter commonly known as an "Investment Letter," or investment
representations acknowledging that the shares of VMTI Common Stock are
being acquired for investment purposes.
(d) SONOMA shall deliver an opinion of its legal counsel to the
effect that:
(i) SONOMA is a corporation duly organized validly existing
and in good standing under the laws of the State of
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Illinois and is duly qualified to do business in any jurisdiction
where so required except where the failure to so qualify would have
no material adverse impact on the company;
(ii) SONOMA has the corporate power to carry on its business
as now being conducted; and
(iii) This Agreement has been duly authorized, executed and
delivered by SONOMA.
SECTION 5. COVENANTS
5.1 Corporate Examinations and Investigations. Prior to the Closing Date,
the parties acknowledge that they have been entitled, through their employees
and representatives, to make such investigation of the assets, properties,
business and operations, books, records and financial condition of the other as
they each may reasonably require. No investigations, by a party hereto shall,
however, diminish or waive any of the representations, warranties, covenants or
agreements of the party under this Agreement.
5.2 Expenses. Each party hereto agrees to pay its own costs and expenses
incurred in negotiating this Agreement and consummating the transactions
described herein.
5.3 Further Assurances. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to the Closing, including, without limitation, the execution
and delivery of any documents or other papers, the execution and delivery of
which are necessary or appropriate to the Closing.
5.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, VMTI, SONOMA and the Shareholders agree to keep
confidential any information disclosed to each other in connection therewith for
a period of two (2) years from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of the disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge (except
due to the action of the receiving party); or
(iii) the receiving party had within its possession at the time of
disclosure.
5.5 Stock Certificates. At the Closing, the Shareholders shall have
delivered the certificates representing the Shares duly endorsed (or with
executed stock powers) so as to make VMTI the sole owner thereof. At such
Closing, VMTI shall issue to the Shareholders, the creditors, and the
restructuring group the VMTI Shares.
5.6 Investment Letters. The Shareholders, the creditors and the
restructuring group shall have delivered to VMTI an "Investment Letter" agreeing
that the shares are being acquired for investment purposes only and not with the
view to public resale or distribution.
5.7 Release of certain VMTI people. SONOMA, the Shareholders and their
respective
11
beneficiaries (collectively the "Releasors") hereby release and discharge
Richard Currie, Max Minkoff and Glenn Peterson and their heirs, executors,
successors and assigns (the "Releasees") from all Claims which against
Releasees, the Releasors and the Releasors' successors and assigns ever had, now
have or hereafter can, shall or may have for, upon or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the day of the date
of this Agreement and for which the Releases would otherwise be liable; except
that the Releasors do not release the Releasees from any claims arising out of
this Agreement.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF VMTI
(a) Notwithstanding any right of SONOMA and the Shareholders fully
to investigate the affairs of VMTI, the Shareholders have the right to rely
fully upon the representations VMTI and its officers made to its auditors who
have audited VMTI's most current fiscal year financial statements prior to
Closing. All such representations shall survive the execution and delivery
hereof and the Closing hereunder for twelve (12) months following the Closing.
(b) Notwithstanding any right of VMTI to investigate the affairs of
SONOMA and its Shareholders, VMTI has the right to rely fully upon
representations, warranties, covenants and agreements of SONOMA and its
Shareholders contained in this Agreement or in any document delivered to VMTI by
SONOMA and its Shareholders or any of their representatives, in connection with
the transactions contemplated by this Agreement. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the closing hereunder for twelve (12) months following the Closing.
SECTION 7. VMTI'S REPRESENTATIONS TO AUDITORS
SONOMA and its Shareholders will rely on VMTI's auditor's report for the
fiscal year ended on December 31, 1996, which report will be, in part, based on
representations made by Richard Currie and Glenn Peterson to said auditors.
SECTION 8. DOCUMENTS AT CLOSING AND THE CLOSING
8.1 Documents at Closing. At the Closing, the following transactions shall
occur, all of such transactions being deemed to occur simultaneously:
(a) SONOMA will deliver, or will cause to be delivered, to VMTI the
following:
(i) a certificate executed by the President and Secretary of
SONOMA to the effect that all representations and warranties made by
SONOMA under this Agreement are true and correct as of the Closing,
the same as though originally given to VMTI on said date;
(ii) a certificate from the State of Illinois dated at or
about the Closing to the effect that SONOMA is in good standing
under the laws of said State;
(iii) Investment Letters or investment representations in the
form executed by each SONOMA Shareholder;
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(iv) Stock certificates representing those shares of SONOMA
Shares to be exchanged for VMTI;
(v) an undertaking to certain members of the restructuring
group of a "put" option for a total of 100,000 shares of Common
Stock of VMTI, at price of .50 cents per share (subject to
anti-dilution) to the post-merger entity one year after the Closing.
(vi) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of
this Agreement, including but not limited to certified copies of
resolutions of SONOMA's Board of Directors authorizing this
transaction and an opinion of counsel of SONOMA as described herein;
(b) VMTI will deliver or cause to be delivered to SONOMA and the
SONOMA Shareholders:
(i) stock certificates representing those shares of VMTI
Shares to be issued as a part of the Exchange as described in
Section 1 hereof;
(ii) a certificate from VMTI executed by the President or
Secretary of VMTI, to the effect that all representations and
warranties of VMTI made under this Agreement are true and correct as
of the Closing, the same as though originally given to SONOMA on
said date;
(iii) certified copies of resolutions by VMTI's Board of
Directors authorizing this transaction;
(iv) certificates from the Illinois Secretary of State dated
at or about the Closing Date that VMTI is in good standing under the
laws of said State;
(v) opinion of VMTI's counsel as described in Section 4.1 (h)
above;
(vi) such other instruments and documents as are required to
be delivered pursuant to the provisions of this Agreement;
(vii) resignations of existing officers and directors of VMTI,
as set forth in the Agreement;
(viii) all other items, the delivery of which is a condition
precedent to the obligations of VMTI, as set forth in Section 4
hereof.
8.2 The Closing. The Closing shall take place simultaneously with the
execution of this Agreement or at such other later time or place as may be
agreed upon by the parties hereto. At the Closing, the parties shall provide
each other with such documents as may be necessary or appropriate in order to
consummate the transactions contemplated hereby including evidence of due
authorization of the Agreement and the transactions contemplated hereby.
SECTION 9. MISCELLANEOUS
9.1 Waivers. The waiver of a breach of this Agreement or the failure of
any party hereto to exercise any right under this Agreement shall in no way
constitute waiver as to future breach
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whether similar or dissimilar in nature or as to the exercise of any further
right under this Agreement.
9.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
9.3 Assignment. This Agreement is not assignable except by operation of
law.
9.4 Notice Until otherwise specified in writing, the mailing addresses and
fax numbers of the parties of this Agreement shall be as follows:
SONOMA: c/o Frank Contaldo
The Sonoma Holding Corp.
33 W. Higgins Road, Suite 2010
South Barrington, IL 60010
Shareholders:
VMTI: Glenn Peterson
715 Walnut Drive, #201
Darien, IL 60561
Fax: (630) 654-4398
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address which shall have been furnished in
writing to the addressor.
9.5 Governing Law. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Illinois, thereby precluding any choice of law rules which may direct the
application of the laws of any other jurisdiction.
9.6 Arbitration.
(a) All disputes and differences arising in connection with or
relating to the provisions of this Agreement, including what constitutes a
dispute or difference, shall be settled and finally determined by arbitration
unless agreement in writing has been reached between the parties within ninety
(90) days after either party shall have given written notice to the other party
of the existence of a dispute or difference which it desires to have arbitrated.
Such notice shall state the point or points in dispute.
(b) Arbitration shall be conducted in Chicago, Illinois in
accordance with the rules of the American Arbitration Association by three (3)
arbitrators, one of whom shall be selected by the Seller, one by VMTI and a
Chairman of the Arbitration Court selected by the two arbitrators so selected.
The applicable law shall be as provided above. Each party shall notify the other
party of the arbitrator selected by it within sixty (60) days of the giving of
written notice referred to above. In the event that the two arbitrators selected
by the parties are unable to reach agreement as to the third arbitrator, the
third arbitrator shall be selected by the American Arbitration Association.
Arbitration shall be held in the jurisdiction of the party against which or whom
the arbitration is instituted. Each party shall be given the opportunity to
present to the arbitrators its evidence, witnesses and arguments, and the right
to be represented by counsel of its
14
selection when the other party be represented by counsel, of its selection when
the other party presents its evidence, witnesses and arguments. In the event one
of the parties shall fail, after reasonable notice, to appear and participate in
the arbitration proceedings as normally interpreted by the above-mentioned
rules, the arbitrators shall be entitled to make their decision and award on the
basis of evidence, witnesses and arguments presented by the party appearing.
(c) The decision and the award of the arbitrators shall be in
writing and shall be final and binding upon the parties hereto. Judgment upon
the award rendered my be entered in any court having jurisdiction thereof, or
application may be made to such court for a judicial acceptance of the award and
an order of enforcement, as the case may be. The expenses of arbitration shall
be borne in accordance with the determination of the arbitrators with respect
thereto. Pending decision by the arbitrators with respect to the dispute or
difference undergoing arbitration, all other obligations of the parties hereto
shall continue as stipulated herein, and all monies not directly involved in
such dispute or difference shall be paid when due.
9.7 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance by the other party.
9.8 Entire Agreement. This Agreement (including the Exhibits and Schedules
hereto) and the collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the purchase and issuance of the
Shares and the VMTI Shares and related transactions, and supersede all prior
agreements, written or oral, with respect thereto.
9.9 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way effect the meaning or interpretation of this
Agreement.
9.10 Severability of Provisions. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or the
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
9.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
9.12 Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
SONOMA HOLDING CORP.
By:______________________________
______________________________
(Print Name and Title)
ATTEST:
____________________
VICTORMAXX TECHNOLOGIES, INC.
By:______________________________
______________________________
(Print Name and Title)
ATTEST:
____________________
SONOMA SHAREHOLDERS:
Declaration of Trust by
Frank Anthony Contaldo
By:______________________________
Declaration of Trust by
Terrence L. Donati
By:______________________________
Chicago Mortgage & Financial Services, Inc.
Profit Sharing Plan & Trust
By:______________________________
Its Trustee
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EXHIBIT A
===============================================================================
NAME No. of SONOMA Shares No. of VMTI Shares to
of Common Stock be received at Closing
Common Preferred
(convertible into
300 Common)
- -------------------------------------------------------------------------------
Trust For:
Frank Anthony Contaldo 3,500 4,237,995 35,000
- -------------------------------------------------------------------------------
Trust For:
Terrence L. Donati 3,500 4,237,995 35,000
- -------------------------------------------------------------------------------
Chicago Mortgage and
Financial Services, Inc.
Profit Sharing Plan 3,000 3,632,568 30,000
& Trust
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
===============================================================================
17
SCHEDULE 1.1
Creditor Settlements. SONOMA has agreed to provide cash funds to settle
the following obligations of VMTI:
a) $5,000 to American Express. To the extent that the outstanding
balance payable to American Express is less than $5,000 on the
Closing Date, the difference between $5,000 and the balance payable
to American Express shall be payable to Capstone Associates.
b) SONOMA will pay the remaining liability of approximately $9,153
payable to First Financial Leasing Corp. In exchange, SONOMA will
receive the equipment (copier and telephone system) detailed on
Schedule 1.4.
c) SONOMA has agreed to pay Coopers & Lybrand ("Coopers") $10,700 for
services performed on the audits of VMTI for the periods ending
December 31, 1995 and 1996. Coopers will receive $5,000 of the
balance prior to the Closing Date of this transaction and the
remainder 90 days subsequent to the Closing Date of this
transaction.
d) SONOMA has agreed to pay Hansen, Barnett & Maxwell $3,000 for
services performed on the audit of VMTI for the period ending
December 31, 1996.
Unsettled liabilities will remain the responsibility of the post-merger entity.
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SCHEDULES 2.12 AND 3.14
All of the parties to this Agreement agree and represent to one another
that there has been no broker or finder with respect to any part of this
transaction, except CorCapital Financial Partners, Inc., including but not
limited to its respective officers, directors, principals, employees, agents and
shareholders, (collectively, referred to hereafter as "CorCapital"), all of whom
are waiving and are not claiming any fee or compensation by reason thereof.
CorCapital further agrees to execute and be bound by the terms of this
Agreement, as if it were an original signator to said Agreement, and to be bound
to the release set forth below.
RELEASE OF FEES, COMPENSATION OR OTHER
RENUMERATION AS SET FORTH HEREON
CorCapital hereby releases and discharges VMTI, Richard Currie, Max
Minkoff, Glenn Peterson, SONOMA, its Shareholders, all of their respective
heirs, executors, successors and assigns (the "Releasees") from all claims which
against Releasees, CorCapital and its successor and assigns ever had, now have
or hereafter can, shall, or may, have for upon, or by reason of any matter cause
or thing whatsoever from the beginning of the world to the day of the date of
this Agreement and for which the Releasees would otherwise be liable. The
undersigned further represents that he is duly authorized to execute this
document and to cause the undersigned to be bound by reason thereof.
CorCapital Financial Partners, Inc.
By:______________________________
Its duly authorized agent
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