Exhibt 2.2
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT, (the "Agreement") is made this 7th day of
November 2008, between Budget Waste, Inc., a Nevada corporation ("Seller"), and
Xxxx Creek Mining, Inc., a Nevada corporation (the "Purchaser").
Background
The purpose of this Agreement is to set forth the terms and conditions upon
which the Purchaser shall acquire 100% of the outstanding stock of Budget Waste,
Inc, an Alberta corporation (the "Company") from Seller.
In consideration of the mutual promises, covenants and representations
contained herein, the parties herewith agree as follows:
ARTICLE I
STOCK EXCHANGE
1.01 Subject to the terms and conditions of this Agreement, the Company
agrees to transfer an aggregate of 100 Class A common shares of the Company,
which represent 100% of the issued and outstanding shares of Company common
stock, to the Purchaser, and the Purchaser agrees to issue to Seller an
aggregate of 5,496,054 newly issued, restricted shares of Purchaser's common
stock, representing approximately 52% of the outstanding shares of common stock
of Purchaser.
1.02 At the completion of the exchange, the Company will be a wholly owned
subsidiary of Purchaser.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Of Seller. Seller represents and warrants to Purchaser as follows:
(a) Organization. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of Alberta, Canada, has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing. All actions taken by the
incorporators, directors and/or shareholders of The Company have been valid and
in accordance with all applicable laws.
(b) Capital. The authorized capital stock of The Company consists of an
unlimited number of each of the following classes of Shares, no par value:
Class A common voting
Class B common voting
Class C common non-voting
Class D common non-voting
Class E, Class F, Class G, Class H, Class I, Class J, Class K, Class L,
Class M, and Class N redeemable, retractable preferred shares
Of these, 100 Class A Shares are issued and outstanding. All outstanding
Shares are fully paid and non-assessable, free of liens, encumbrances, options,
restrictions and legal or equitable rights of others not a party to this
Agreement, other than restrictions on resale imposed by any applicable
1
securities laws. At the Closing, there will be no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating The Company to issue or to transfer from treasury any
additional shares of its capital stock. None of the outstanding Shares of The
Company are subject to any stock restriction agreements. Seller has valid title
to the Shares and acquired the Shares in a lawful transaction in accordance with
applicable federal and state law.
(c) Liabilities. The Company does not as of the date hereof, and will not
as of the Closing, have any debt, liability, or obligation of any nature,
whether accrued, absolute, contingent, or otherwise, and whether due or to
become due not reflected in the Company's financial statements. The Company is
not aware of any pending, threatened or asserted claims, lawsuits or
contingencies involving The Company not disclosed in its financial statements or
otherwise disclosed to Purchaser.
(d) Ability to Carry Out Obligations. The Seller has the right, power, and
authority to enter into and perform its obligations under this Agreement. The
execution and delivery of this Agreement by the Seller and the performance by
the Seller of its obligations hereunder will not cause, constitute, or conflict
with or result in (a) any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which Seller or the Company is a party or by which they may be bound, nor
will any consents or authorizations of any party other than those hereto be
required, or (b) an event that would result in the creation or imposition of any
lien, charge, or encumbrance on any asset of the Company or upon the Shares.
(e) Full Disclosure. None of the representations and warranties made in
this Agreement by Seller contains or will contain any untrue statement of a
material fact or omit any material fact the omission of which would be
misleading.
(f) Compliance with Laws. The Company has complied with all, and is not in
violation of any, federal, state, or local statute, law, and regulation. The
Company has complied with all federal and state securities laws in connection
with the offer, sale and distribution of its securities. The Shares are being
sold in a private transaction between the Seller and the Purchaser, and it is
understood that certain of the Shares are subject to trading restrictions under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder.
(g) Truth of Representations. All of these representations shall be true as
of the Closing and shall survive the Closing for a period of one year.
2
2.2 Of Purchaser. Purchaser represents and warrants to Seller as follows:
(a) Organization. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada, has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing. All actions taken by the
incorporators, directors and/or shareholders of Purchaser have been valid and in
accordance with all applicable laws.
(b) Capital. The authorized capital stock of Purchaser consists of
75,000,000 Shares of Common Stock, par value $.001 per share, of which 5,250,000
Shares are issued and outstanding prior to the issuance of shares to Seller
pursuant to this Agreement.
(c) Financial Statements; Information. Purchaser is a "reporting company"
as defined under the Securites Exchange Act of 1934, and is current in all of
its reporting obligations. All of the Company's financial statements as filed
with and available from the United States Securities and Exchange Commission are
true and accurate. The Company is not aware of any pending, threatened or
asserted claims, lawsuits or contingencies involving The Company not disclosed
in its financial statements.
(d) Ability to Carry Out Obligations. Purchaser has the right, power, and
authority to enter into and perform its obligations under this Agreement. The
execution and delivery of this Agreement by the Purchaser and the performance by
the Purchaser of its obligations hereunder will not cause, constitute, or
conflict with or result in (a) any breach or violation or any of the provisions
of or constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which Purchaser is a party or by which it may be bound, nor will any consents
or authorizations of any party other than those hereto be required, or (b) an
event that would result in the creation or imposition of any lien, charge, or
encumbrance on any asset of the Purchaser.
(e) Full Disclosure. None of the representations and warranties made in
this Agreement by Seller contains or will contain any untrue statement of a
material fact or omit any material fact the omission of which would be
misleading.
(f) Compliance with Laws. The Company has complied with all, and is not in
violation of any, federal, state, or local statute, law, and regulation. The
Company has complied with all federal and state securities laws in connection
with the offer, sale and distribution of its securities. The Shares are being
sold in a private transaction between the Seller and the Purchaser, and it is
understood that certain of the Shares are subject to trading restrictions under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder.
(g) Truth of Representations. All of these representations shall be true as
of the Closing and shall survive the Closing for a period of one year.
3
ARTICLE IV
MISCELLANEOUS
3.01 Arbitration. Any controversy or claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in Calgary, Alberta Canada, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
3.02 Captions and Headings. The article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
3.03 No Oral Change. This Agreement and any provision hereof may not be
waived, changed, modified, or discharged orally but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
3.04 Non Waiver. Except as otherwise expressly provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (i) the failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, covenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other or
subsequent breach.
3.05 Entire Agreement. This Agreement, including any and all attachments
hereto, if any, contains the entire Agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings, whether
written or oral.
3.06 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures will
be acceptable to all parties as originals.
3.07 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, or on the second day if faxed, and properly addressed or faxed as
follows:
If to Seller:
Budget Waste, Inc., a Nevada corporation
----------------------------------------
----------------------------------------
----------------------------------------
If to Purchaser:
Xxxx Creek Mining, Inc.
----------------------------------------
----------------------------------------
----------------------------------------
4
3.08 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
3.09 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall be true and
correct as of the closing and shall survive the Closing of this Agreement for a
period of one year.
3.10 Mutual Cooperation. The parties hereto shall cooperate with each other
to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
3.11 Counterpart Signatures. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
4.12 Severability. In case any one or more of the provisions of this
Agreement shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Agreement shall not
in any way be affected or impaired thereby and the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute
therefor, and upon so agreeing, shall incorporate such substitute provision in
this Agreement.
In witness whereof, this Agreement has been duly executed by the parties
hereto as of the date first above written.
SELLER
BUDGET WASTE, INC., a Nevada corporation
By: /s/ Xxx Can
-------------------------------------------------
Xxx Can, President
PURCHASER
XXXX CREEK MINING, INC.
By: /s/ Xxx Can
-------------------------------------------------
Xxx Can, CEO
5
