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AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") between
INTERNATIONAL INTERNET, INC., a Delaware corporation ("International Internet")
and the persons listed in Exhibit A hereof (collectively the "Shareholders"),
being the owners of record of all of the issued and outstanding stock of Caprock
Corporation, a Delaware corporation ("Caprock").
Whereas, International Internet wishes to acquire and the Shareholders
wish to transfer all of the issued and outstanding securities of Caprock in a
transaction intended to qualify as a reorganization within the meaning of
ss.368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
Now, therefore, International Internet and the Shareholders adopt this
plan of reorganization and agree as follows:
1. Exchange of Stock
1.1. Number of Shares. The Shareholders agree to transfer to
Internatioal Internet at the Closing (defined below) the number of shares of
common stock of Caprock, $.0001 par value per share, shown opposite their names
in Exhibit A, in exchange pro rata for an aggregate of 500,000 shares of voting
common stock of International Internet, $.00001 par value per share.
1.2. Exchange of Certificates. Each holder of an outstanding
certificate or certificates theretofore representing shares of Caprock common
stock shall surrender such certificate(s) for cancellation to International
Internet, and shall receive in exchange a certificate or certificates
representing the number of full shares of International Internet common stock
into which the shares of Caprock common stock represented by the certificate or
certificates so surrendered shall have been converted. The transfer of Caprock
shares by the Shareholders shall be effected by the delivery to International
Internet at the Closing of certificates representing the transferred shares
endorsed in blank or accompanied by stock powers executed in blank.
1.3. Fractional Shares. Fractional shares of International Internet
common stock shall not be issued, but in lieu thereof International Internet
shall round up fractional shares to the next highest whole number.
1.4. Further Assurances. At the Closing and from time to time
thereafter, the Shareholders shall execute such additional instruments and take
such other action as International Internet may request in order more
effectively to sell, transfer, and assign the transferred stock to International
Internet and to confirm International Internet's title thereto.
2. Ratio of Exchange. The securities of Caprock owned by the
Shareholders, and the relative securities of International Internet for which
they will be exchanged, are set out opposite their names in Exhibit A.
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3. Closing.
3.1. Time and Place. The Closing contemplated herein shall be held
as soon as possible at the offices of ▇▇▇▇▇▇▇ & Associates at ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. unless another place or time is agreed upon in writing by the
parties without requiring the meeting of the parties hereof. All proceedings to
be taken and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding shall be
deemed taken nor documents deemed executed or delivered until all have been
taken, delivered and executed. The date of Closing may be accelerated or
extended by agreement of the parties.
3.2. Form of Documents. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission required by this
Agreement or any signature required thereon may be used in lieu of an original
writing or transmission or signature for any and all purposes for which the
original could be used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original
writing or transmission or original signature.
4. Unexchanged Certificates. Until surrendered, each outstanding
certificate that prior to the Closing represented Caprock common stock shall be
deemed for all purposes, other than the payment of dividends or other
distributions, to evidence ownership of the number of shares of International
Internet common stock into which it was converted. No dividend or other
distribution shall be paid to the holders of certificates of Caprock common
stock until presented for exchange at which time any outstanding dividends or
other distributions shall be paid.
5. Representations and Warranties of the Shareholders
The Shareholders, individually and separately, represent and warrant as
follows:
5.1. Title to Shares. The Shareholders, and each of them, are the
owners, free and clear of any liens and encumbrances, of the number of Caprock
shares which are listed in the attached schedule and which they have contracted
to exchange.
5.2. Litigation. There is no litigation or proceeding pending, or
to any Shareholder's knowledge threatened, against or relating to shares of
Caprock held by the Shareholders.
6. Representations and Warranties of International Internet
International Internet represents and warrants as follows:
6.1. Corporate Status. International Internet is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and is licensed or qualified as a foreign corporation in all states in
which the nature of its business or the character or ownership of its properties
makes such licensing or qualification necessary.
6.2. Capitalization. The authorized capital stock of International
Internet consists of 1,000,000,000 shares of common stock, $.00001 par value per
share, of which 767,796,186 shares
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are issued and outstanding, all fully paid and nonassessable and no shares of
non-designated preferred stock.
6.3. Subsidiaries. International Internet has four subsidiaries.
6.4. Financial Statements. The financial statements of
International Internet for the fiscal year ended December 31, 1998 and the
period September 30, 1999 or such other period as acceptable to Shareholders
("International Internet's Financial Statements") and furnished to the
Shareholders are correct and fairly present the financial condition of
International Internet as of the dates and for the periods involved, and such
statements were prepared in accordance with generally accepted accounting
principles consistently applied.
6.5. Undisclosed Liabilities. International Internet had no
material liabilities of any nature except to the extent reflected or reserved
against in International Internet's Financial Statements, whether accrued,
absolute, contingent, or otherwise, including, without limitation, tax
liabilities and interest due or to become due, and International Internet's
accounts receivable, if any, are collectible in accordance with the terms of
such accounts, except to the extent of the reserve therefor in International
Internet's Financial Statements.
6.6. Absence of Material Changes. Between the date of International
Internet's Financial Statements and the date of this Agreement, there have not
been, except as set forth in a list certified by the president of International
Internet and delivered to the Shareholders (1) any changes in International
Internet's financial condition, assets, liabilities, or business which, in the
aggregate, have been materially adverse; (2) any damage, destruction, or loss of
or to International Internet's property, whether or not covered by insurance;
(3) any declaration or payment of any dividend or other distribution in respect
of International Internet's capital stock, or any direct or indirect redemption,
purchase, or other International Internet of any such stock; or (4) any increase
paid or agreed to in the compensation, retirement benefits, or other commitments
to employees.
6.7. Litigation. There is no litigation or proceeding pending, or
to the Company's knowledge threatened, against or relating to International
Internet, its properties or business, except as set forth in a list certified by
the president of International Internet and delivered to the Shareholders.
6.8. Contracts. International Internet is not a party to any
material contract other than those listed as an attachment hereto.
6.9. No Violation. Execution of this Agreement and performance by
International Internet hereunder has been duly authorized by all requisite
corporate action on the part of International Internet, and this Agreement
constitutes a valid and binding obligation of International Internet, and
performance hereunder will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of International Internet is subject or by
which International Internet is bound.
6.10. Taxes. International Internet has filed in correct form all
federal, state, and other tax returns of every nature required to be filed by it
and has paid all taxes as shown on such returns and all assessments, fees and
charges received by it to the extent that such taxes, assessments, fees and
charges have become due. International Internet has also paid all taxes which do
not require the filing of returns and which are required to be paid by it. To
the extent that tax liabilities have accrued, but have not become payable, they
have been adequately reflected as liabilities on the
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books of International Internet and are reflected in the financial statements
furnished hereto.
6.11. Title to Property. International Internet has good and
marketable title to all properties and assets, real and personal, reflected in
International Internet's Financial Statements, except as since sold or otherwise
disposed of in the ordinary course of business, and International Internet's
properties and assets are subject to no mortgage, pledge, lien, or encumbrance,
except for liens shown therein, with respect to which no default exists.
6.12. Corporate Authority. International Internet has full corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder, and will deliver at the Closing a certified copy of
resolutions of its board of directors authorizing execution of this Agreement by
its officers and performance thereunder.
6.13. Investment Intent. International Internet is acquiring the
Caprock shares to be transferred to it under this Agreement for investment and
not with a view to the sale or distribution thereof.
7. Conduct Pending the Closing
International Internet and the Shareholders covenant that between the
date of this Agreement and the Closing as to each of them:
7.1. No change will be made in the charter documents, by-laws, or
other corporate documents of International Internet.
7.2. International Internet will use its best efforts to maintain
and preserve its business organization, employee relationships, and goodwill
intact, and will not enter into any material commitment except in the ordinary
course of business.
7.3. None of the Shareholders will sell, transfer, assign,
hypothecate, lien, or otherwise dispose or encumber the Caprock shares of common
stock owned by them.
8. Conditions Precedent to Obligation of the Shareholders
The Shareholder's obligation to consummate this exchange shall be
subject to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by the Shareholders as appropriate:
8.1. International Internet's Representations and Warranties. The
representations and warranties of International Internet set forth herein shall
be true and correct at the Closing as though made at and as of that date, except
as affected by transactions contemplated hereby.
8.2. International Internet's Covenants. International Internet
shall have performed all covenants required by this Agreement to be performed by
it on or before the Closing.
8.3. Board of Director Approval. This Agreement shall have been
approved by the Board of Directors of International Internet.
8.4. Supporting Documents of International Internet. International
Internet shall have delivered to the Shareholders supporting documents in form
and substance reasonably satisfactory to the Shareholders, to the effect that:
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(a) International Internet is a corporation duly organized, validly
existing, and in good standing;
(b) International Internet's authorized capital stock is as set forth
herein;
(c) Certified copies of the resolutions of the board of directors of
International Internet authorizing the execution of this Agreement and the
consummation hereof;
(d) Secretary's certificate of incumbency of the officers and directors
of International Internet;
(e) International Internet's Financial Statements; and
(f) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
9. Conditions Precedent to Obligation of International Internet
International Internet's obligation to consummate this merger shall be
subject to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by International Internet:
9.1. Shareholder's Representations and Warranties. The
representations and warranties of the Shareholders set forth herein shall be
true and correct at the Closing as though made at and as of that date, except as
affected by transactions contemplated hereby.
9.2. Shareholders' Covenants. The Shareholders shall have performed
all covenants required by this Agreement to be performed by them on or before
the Closing.
10. Termination. This Agreement may be terminated (1) by mutual
consent in writing; (2) by either the Shareholders or International Internet if
there has been a material misrepresentation or material breach of any warranty
or covenant by any other party; or (3) by either the Shareholders or
International Internet if the Closing shall not have taken place within 15 days
following execution of this Agreement, unless adjourned to a later date by
mutual consent in writing.
11. Survival of Representations and Warranties. The
representations and warranties of the Shareholders and International Internet
set out herein shall survive the Closing.
12. Arbitration
12.1. Scope. The parties hereby agree that any and all claims
(except only for requests for injunctive or other equitable relief) whether
existing now, in the past or in the future as to which the parties or any
affiliates may be adverse parties, and whether arising out of this agreement or
from any other cause, will be resolved by arbitration before the American
Arbitration Association within the District of Columbia.
12.2. Consent to Jurisdiction, Situs and Judgement. The parties
hereby irrevocably consent to the jurisdiction of the American Arbitration
Association and the situs of the arbitration (and any requests for injunctive or
other equitable relief) within the District of Columbia. Any award in
arbitration may be entered in any domestic or foreign court having jurisdiction
over the enforcement of such awards.
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12.3. Applicable Law. The law applicable to the arbitration and this
agreement shall be that of the State of Delaware, determined without regard to
its provisions which would otherwise apply to a question of conflict of laws.
12.4. Disclosure and Discovery. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and discovery in
regard to any matters which are the subject of the arbitration and to compel
compliance with such disclosure and discovery order. The arbitrator may order
the parties to comply with all or any of the disclosure and discovery provisions
of the Federal Rules of Civil Procedure, as they then exist, as may be modified
by the arbitrator consistent with the desire to simplify the conduct and
minimize the expense of the arbitration.
12.5. Rules of Law. Regardless of any practices of arbitration to
the contrary, the arbitrator will apply the rules of contract and other law of
the jurisdiction whose law applies to the arbitration so that the decision of
the arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
12.6. Finality and Fees. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable except as to
errors of law or the failure of the arbitrator to adhere to the arbitration
provisions contained in this agreement. Each party to the arbitration shall pay
its own costs and counsel fees except as specifically provided otherwise in this
agreement.
12.7. Measure of Damages. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
12.8. Covenant Not to ▇▇▇. The parties covenant that under no
conditions will any party or any affiliate file any action against the other
(except only requests for injunctive or other equitable relief) in any forum
other than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and shall be
referred for arbitration hereunder with costs and attorney's fees to the
prevailing party.
12.9. Intention. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever arising,
whether in regard to this agreement or any other matter, from whatever cause,
based on whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and that no
party or affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable relief. This
agreement shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
12.10. Survival. The provisions for arbitration contained herein
shall survive the termination of this agreement for any reason.
13. General Provisions.
13.1. Further Assurances. From time to time, each party will execute
such additional instruments and take such actions as may be reasonably required
to carry out the intent and purposes of this agreement.
13.2. Waiver. Any failure on the part of either party hereto to
comply with any of its obligations, agreements, or conditions hereunder may be
waived in writing by the party to whom such compliance is owed.
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13.3. Brokers. Each party agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by brokers
or finders employed or alleged to have been employed by the indemnifying party.
13.4. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if delivered in person or
sent by prepaid first-class certified mail, return receipt requested, or
recognized commercial courier service, as follows:
If to International Internet, to:
International Internet, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Shareholders, to:
TPG Capital Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13.5. Governing Law. This agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
13.6. Assignment. This agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this agreement
without the written consent of the other party shall be void.
13.7. Counterparts. This agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
13.8. Exchange Agent and Closing Date. The Exchange Agent shall be
the law firm of ▇▇▇▇▇▇▇ & Associates, Washington, D.C. The Closing shall take
place upon the fulfillment by each party of all the conditions of Closing
required herein, but not later than 15 days following execution of this
agreement unless extended by mutual consent of the parties.
13.9. Review of Agreement. Each party acknowledges that it has had
time to review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
13.10. Schedules. All schedules attached hereto, if any, shall be
acknowledged by each party by signature or initials thereon and shall be dated.
13.11. Effective Date. This effective date of this agreement shall be
November 26, 1999.
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Signature Page to Agreement and Plan of Reorganization
between International Internet and the Shareholders of Caprock
IN WITNESS WHEREOF, the parties have executed this agreement.
INTERNATIONAL INTERNET, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
THE SHAREHOLDERS OF CAPROCK
CORPORATION:
TPG CAPITAL CORPORATION:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, President
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Exhibit A
Number of Number of Name of Address
Caprock Shares International Internet Shareholder -------
To Be Shares To Be -----------
Exchanged Received
--------- --------
5,000,000 500,000 TPG Capital Corporation ▇▇▇▇ ▇ ▇▇. ▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇