EXHIBIT 2.3
SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement (this "Agreement") is entered into as of
the 9th day of May 2002, by and among XXXxxxxxx.xxx, Inc., a Colorado
corporation ("IDMD"), ToolTrust Corporation ("ToolTrust"), and the undersigned
former shareholders of ClearDialog Communications, Inc. ( the "Shareholders").
RECITALS
WHEREAS, pursuant to the Agreement and Plan of Reorganization, dated
October 19, 2001, ToolTrust acquired from the Shareholders 100% of the issued
and outstanding stock of ClearDialog Communications, Inc. ("ClearDialog") in
exchange for an aggregate of 2,000,000 shares of ToolTrust common stock.
WHEREAS, pursuant to an Agreement and Plan of Reorganization, dated
October 19, 2001, IDMD acquired 100% of the issued and outstanding stock of
ToolTrust from the shareholders of ToolTrust and each ToolTrust shareholder
received one share of IDMD common stock for each share of ToolTrust common stock
owned by such shareholder, such that IDMD issued to the Shareholders an
aggregate of 2,000,000 shares of IDMD common stock (the "IDMD Shares").
WHEREAS, IDMD is offering the undersigned Shareholders an opportunity
to exchange the IDMD Shares for the number of shares of ClearDialog formerly
owned by each Shareholder (the "ClearDialog Shares").
NOW, THEREFORE, for and in consideration of the mutual covenants and
representations and warranties of the parties contained herein and other good
and valuable consideration, the receipt of which is hereby acknowledged, IDMD,
ToolTrust and the Shareholders agree as follows:
1. Share Exchange. Based on the representations and warranties and
subject to the terms and conditions of this Agreement, and in the amounts set
forth on the signature pages hereof, the Shareholders agree to, and hereby do,
transfer and assign to IDMD the IDMD Shares and IDMD agrees to, and hereby does,
transfer and assign to the Shareholders the ClearDialog Shares.
All additional stock in ClearDialog held by IDMD or by
ToolTrust will be cancelled effective as of the date of closing. No ClearDialog
stock held by IDMD or ToolTrust will be transferred, liened, encumbered or
otherwise disposed of prior to the closing.
2. Closing. A "Closing" shall take place on the first business day
following the satisfaction or waiver of all conditions to the obligations of the
parties to consummate the transactions contemplated hereby (other than
conditions with respect to actions the respective parties will take at the
Closing itself) or such other date and/or time as the parties may mutually
determine. Such Closing shall occur on, or before, May 13, 2002, and shall be
closed in accordance with that certain Escrow Agreement executed
contemporaneously herewith.
2.1 Condition Precedent to Closing. The following are conditions
precedent to the Closing:
(a) Former LocalToolbox Corporation ("LocalToolbox")
shareholders and former ClearDialog, shareholders owning an aggregate
of 9,300,000 shares of IDMD common stock will participate in this
exchange and a contemporaneous exchange for LocalToolbox.
2.2 Mutual Acknowledgments in Lieu of Delivery of Certificates.
(a) IDMD acknowledges that certificates representing the IDMD
Shares were not issued to the Shareholders and that ToolTrust did not
receive certificates representing the ClearDialog Shares from the
Shareholders. IDMD represents and warrants that, by operation of this
Agreement, neither ToolTrust nor IDMD has any claim, interest or right
to the ClearDialog Shares.
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(b) The Shareholders acknowledge that they did not receive
certificates representing the IDMD Shares, and that ToolTrust did not
receive certificates representing the ClearDialog Shares. The
Shareholders represent and warrant that, by operation of this
Agreement, they have no claim, interest or right to the IDMD Shares.
3. Representations of the Shareholders. Each Shareholder hereby
represents and warrants that effective this date and as of the date of Closing,
the representations and warranties listed below are true and correct:
3.1 Authority. The Shareholder has the requisite authority to enter
into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby in accordance with the terms hereof.
Shareholder's performance of, and the consummation of, the transactions
contemplated hereby will not violate or conflict with any law, rule, regulation,
court or administrative order binding on such Shareholder, or result in the
breach of or constitute a default in the performance of any material obligation,
agreement, covenant or condition contained in any material contract, lease,
judgment, decree, order, award, note, loan or credit agreement or any other
material agreement or instrument to which such Shareholder is a party or by
which it is bound. Upon due execution and delivery of this Agreement, this
Agreement will constitute a valid, legal and binding obligation of such
Shareholder enforceable against it in accordance with its terms.
3.2 IDMD Shares. The Shareholder is the owner of the issued and
outstanding common stock of IDMD, which is being exchanged under this Agreement.
The IDMD Shares being exchanged by Shareholder under this Agreement are free and
clear from any security interests, claims, liens, or other encumbrances and
Shareholder has the unqualified right to transfer and dispose of Shareholder's
IDMD Shares.
3.3 Due Diligence. The Shareholder has been furnished with IDMD's
public reports as filed with the United States Securities and Exchange
Commission and has had the opportunity to investigate the parties' respective
businesses and to ask questions of and receive answers from the parties.
4. Representations of IDMD and ToolTrust. IDMD and ToolTrust hereby
represent and warrant that effective this date and as of the date of closing,
the representations and warranties listed below are true and correct:
4.1 Organization. IDMD is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado with full
power and authority to own and use its properties and conduct its business as
presently conducted by it. IDMD is duly qualified and in good standing to do
business as a foreign corporation in any other jurisdiction where failure to so
qualify would have a material adverse effect on its business or assets.
4.2 Authority. IDMD has the requisite corporate authority to enter into
and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby in accordance with the terms hereof. The
execution and delivery of this Agreement by IDMD and the consummation of the
transactions contemplated hereby will not violate or conflict with any
provisions of the Articles of Incorporation, as amended, or the Bylaws of IDMD,
or contravene any law, rule, regulation, court or administrative order binding
on it, or result in the breach of or constitute a default in the performance of
any material obligation, agreement, covenant or condition contained in any
material contract, lease, judgment, decree, order, award, note, loan or credit
agreement or any other material agreement or instrument to which IDMD is a party
or by which it is bound, the default or breach of which would have a material
adverse effect on the property and assets of IDMD, considered as a whole. IDMD
has taken all requisite corporate action to authorize and approve the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby. Upon due execution and delivery of this
Agreement, this Agreement will constitute a valid, legal and binding obligation
of IDMD enforceable against it in accordance with its terms.
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4.3 ClearDialog Shares. IDMD, through its wholly-owned subsidiary,
ToolTrust Corporation, is the owner of 100% of the issued and outstanding common
stock of ClearDialog. Such ClearDialog Shares are free and clear from any
security interests, claims, liens, or other encumbrances; and IDMD has the
unqualified right to transfer and dispose of its ClearDialog Shares.
4.4 Approvals and Consent. No approval, authorization or other action
by, or filing with, any third-party, including a governmental authority is
required in connection with the execution, delivery and performance by IDMD of
its obligations under this Agreement and its performance of the transactions
contemplated hereby.
4.5 Technology. None of the technology, other intellectual property, or
intellectual property rights held by ClearDialog has been assigned, transferred,
liened, encumbered, licensed, or otherwise disposed of in any way.
5. Indemnification. IDMD hereby agrees that for a period of four (4)
years commencing the date hereof, IDMD shall indemnify and hold harmless the
Shareholders at all times after the date of this Agreement against and in
respect of any third-party liability, damage or deficiency, all actions, suits,
proceedings, demands, claims, assessments, judgments, costs and expenses,
including attorney's fees, incident to any of the foregoing, resulting from any
misrepresentation, breach of covenant or warranty or nonfulfillment of any
agreement on the part of IDMD under this Agreement or from any misrepresentation
in or intentional omission from any document or certificate furnished or to be
furnished to the Shareholders hereunder. Subject to the terms of this Agreement,
IDMD shall reimburse the Shareholders with respect to such third-party's actions
on demand, for any reasonable payment made by said parties at any time after the
Closing, in respect of any liability or claim to which the foregoing indemnity
relates, if such payment is made after reasonable notice to IDMD to defend or
satisfy the same and IDMD failed to defend or satisfy the same. In the event a
third-party action is threatened or commenced but not resolved within said four
(4) year period, IDMD hereby agrees to extend this indemnification through
resolution of the third-party action.
6. Mutual Covenants of the Parties. The parties hereto covenant and
agree to execute any further documents or agreements and to take any further
acts that may be reasonably necessary to effect the transactions contemplated
hereunder, including, but not limited to, obtaining any consents or approvals of
any third-party required to be obtained to consummate the transactions
contemplated by this Agreement.
7. Restrictions on Transfer of Shares. The parties hereto acknowledge
that they are acquiring the IDMD Shares and the ClearDialog Shares, as the case
may be, under Section 4(2) of the Securities Act of 1933, (the "Act"), commonly
known as the private offering exemption. The parties hereby represent that the
shares are restricted and may not be resold, except in reliance upon
registration or an exemption under the Act.
8. Nature and Survival of Representations. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing hereunder and the consummation of the transactions contemplated hereby
for four (4) years from the date hereof. Each party hereto is executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement or at the Closing of the transactions herein provided for and not upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
9. Miscellaneous.
9.1 Undertakings and Further Assurances. At any time, and from time to
time, hereafter, each party will execute such additional instruments and take
such action as may be reasonably requested by any other party to carry out the
intent and purposes of this Agreement.
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9.2 Waiver. Any failure on the part of any 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.
9.3 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 registered or certified mail, return receipt requested, or
by Federal Express or other means of overnight delivery to the addresses set
forth on the signature page hereof.
9.4 Headings. The paragraph and subparagraph headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.5 Governing Law. This Agreement shall be governed by the laws of the
State of Colorado.
9.6 Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties and the parties' respective
heirs, administrators, executors, successors and assigns. This Agreement shall
not be assigned by any party hereto, except upon the consent, in writing, of the
other parties hereto.
9.7 Entire Agreement. This Agreement, including any documents delivered
pursuant to the terms hereof, is the entire agreement of the parties covering
everything agreed upon or understood with respect to the transactions
contemplated hereby and supersedes all prior agreements, covenants,
representations or warranties, whether written or oral, by any party hereto.
There are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the
execution hereof. It is understood that there will be an Exchange Agreement for
CDC, a Settlement Agreement, a Software License Agreement, an Escrow Agreement,
and certain lien documents being delivered contemporaneously herewith.
9.8 Time. Time is of the essence. The parties each agree to proceed
promptly and in good faith to consummate the transactions contemplated herein.
9.9 Expenses. Each of the parties hereto shall pay its own expenses and
legal fees in connection with the authorization, preparation, execution and
performance of this Agreement and obtaining any necessary regulatory approvals,
including, without limitation, all fees and expenses of his respective counsel.
9.10 Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
9.11 Counterparts and Facsimile Signatures. This Agreement and any
exhibits, attachments, or documents ancillary hereto, may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
9.12 Attorneys' Fees. In the event that there is any litigation or
arbitration arising out of, or relating to, this Agreement, the prevailing party
in any such dispute shall be entitled to recover such party's reasonable
attorneys' fees in connection therewith.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement the
day and year first above written.
XXXXXXXXX.XXX, INC.
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Xxxxxx X. Xxxxxx, Chairman and CEO
TOOLTRUST CORPORATION
Xxxxxx X. Xxxxxx,
SHAREHOLDERS:
NAME NO. OF IDMD SHARES NO. OF CLEARDIALOG SHARES
TO BE EXCHANGED TO BE RECEIVED
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printed name:
address:
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printed name:
address:
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printed name:
address:
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