Exhibit 10.42
PURCHASE AGREEMENT AND PLAN OF EXCHANGE
PURCHASE AGREEMENT AND PLAN OF EXCHANGE ("Agreement") dated as of August 8,
2004, by and between Xynergy, Inc., a Nevada corporation ("XYNY"), and Indigo
Technology Services, Inc. ("Indigo"), a Georgia corporation, (together the
"Constituent Corporations").
WHEREAS, the governing body of Indigo and its Board of Directors desire that
Indigo become a wholly owned subsidiary of XYNY and that equity interests of
Indigo will be exchanged for 36,000,000 restricted shares of the common shares
of XYNY and in accordance with the terms and conditions of this Agreement and in
accordance with the Nevada Revised Statutes ("NRS"); and
WHEREAS, the Constituent Corporations have agreed to the Exchange (as defined
below) pursuant to and in accordance with the terms of this Agreement and each
has adopted and approved this Agreement in accordance with, where applicable,
the NRS Laws; and
WHEREAS, the stockholders of the Constituent Corporations, by a majority vote,
have adopted and approved this Agreement in accordance with applicable laws;
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
ARTICLE I
THE EXCHANGE
Article 1.1 The Exchange. Indigo shall become a wholly owned subsidiary of XYNY
and all issued and equity interests of Indigo will be exchanged for 36,000,000
restricted shares of the common stock of XYNY (the "Exchange"). On the Effective
Date (as defined below), XYNY shall be the parent corporation and Indigo will
become a wholly owned subsidiary of XYNY. The corporate existence of XYNY with
its purposes, powers and objects, shall continue unaffected and unimpaired by
the Exchange, and as the Parent Corporation it shall have all the rights and
obligations as and to the extent provided in the NRS. In addition, XYNY will
allow Indigo to receive the amount of $300,000.00 in cash from the 504D raise on
or before October 31, 2004.
Indigo shall have the sole right to negotiate its sale, away from XYNY, to a
third party individual/entity(private or public) at any point, so long as XYNY
receives a 20% ownership interest in the total number of common shares that
Indigo receives in any acquisition from resultant third party company. The 20%
shall be based at the date of acquisition. The date of acquisition shall be the
date that Indigo is acquired but not the date of any contingent conditions to be
fulfilled such as funding or cash payments. The 20% share interest shall be
issued to the shareholders of XYNY prorata to the interest held in XYNY.
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Article 1.2 The Effective Date. The Exchange sha1l become effective as between
the parties (the "Effective Date") upon execution of this Agreement.
Article 1.3 Required Approvals. This Agreement has been adopted and approved by
XYNY and Indigo in accordance with the applicable provisions of the NRS Laws.
Article 1.4 Boards of Directors. The terms of the officers and/or directors
shall be determined by the Board of Directors of the parent Corporation in
accordance with the Bylaws except, Indigo Shall govern itself as it was governed
before the exchange and shall retain all revenue and income generated for a
period of 5 years from the date of the closing of this transaction for the
purpose of developing and growing its business. There is no corporate action
that will allow XYNY to control any of the activities of Indigo. If there arises
such a situation, then this exchange shall be unwound as if it never happened.
ARTICLE II
EXCHANGE OF SHARES
Article 2.1 Effect of Exchange on Capital Stock. On the Effective Date, by
virtue of the Exchange and without any action on the part of the Constituent
Corporations or the holders of any capital stock thereof:
Exchange of Indigo Common Shares. All equity interests in and to Indigo shall be
exchanged for 36,000,000 restricted shares of the common stock (the "Exchanged
Shares"), of the Parent Corporation, which Exchanged Shares shall be issued to
Indigo in accordance with this plan.
Article 2.2 Closing of Transfer Books. From and after the Effective Date, there
will be no transfer of any equity interest in Indigo except as contemplated by
this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Article 3.1 Representations and Warranties. Each of the Constituent Corporations
hereby represents and warrants to the other that such party: (i) is a
corporation duly organized and in good standing in its jurisdiction of
incorporation; (ii) has obtained the requisite approval of its Board of
Directors and stockholders and/or equity holders, as the case may be, to effect
the Exchange; and (iii) has full power and authority to execute, deliver and
perform this Agreement.
ARTICLE IV
CONDITIONS TO CLOSING THE EXCHANGE
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Article 4.1 Closing Date. The closing date under this Agreement is the same as
the Effective Date (as defined above).
Article 4.2 Post Closing Obligations. As a condition subsequent to the closing
of the Exchange contemplated by this Agreement, (i) an Article of Exchange shall
be filed with the Secretary of State of the State of Nevada and/or any other
governing body, where applicable, in the form of which is attached to this
Agreement; and (ii) the equity holders of XYNY shall cause to be transferred to
any persons processing or obligated to process prescriptive rights to any equity
interest in XYNY. The amount of shares of common stock to be issued by XYNY
pursuant to this Agreement shall be duly issued and transferred to Indigo
immediately following the execution of this Agreement.
ARTICLE V
ACCOMPLISHMENT OF THE EXCHANGE
Article 5.1 Further Assurances. The parties hereto each agree to execute such
documents and instruments and to take whatever action may be necessary or
desirable to consummate the Exchange.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Article 6.1. Governing Law. This Agreement shall be construed under and in in
accordance with the laws of the State of Nevada applicable to contracts to be
fully performed in such state without giving effect to any choice of law
principles.
Article 6.2. Headings. The headings set forth herein are for convenience only
and shall not be used in interpreting the text of the section in which they
appear.
Article 6.3 Binding Effect: Successors and Assigns. This Agreement may not be
assigned by either party without the written consent of the other party. This
Agreement shall be binding upon and shall inure to the benefit of the respective
successors and permitted assigns of the parties.
Article 6.4 Counterparts. This Agreement may be executed in separate
counterparts, all of which, when so executed and delivered, shall be deemed to
be an original, and such counterparts when taken together shall constitute but
one and the same agreement.
Article 6.5 Prior Agreements. All prior negotiations, representations,
understandings and agreements among the Constituent Corporations are merged and
superseded by this Agreement, which expresses the complete agreement of the
Constituent Corporations with respect to the subject matter hereof.
Article 6.6 Facsimile Signatures. Facsimile transmissions of signatures of this
Agreement shall have the same binding force and effect as originals thereof.
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IN WITNESS WHEREOF, the undersigned corporations have caused this Agreement and
Plan of Exchange to be executed by its duly authorized officers on this 8th day
of August, 2004.
/s/
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Xxxxxx Xxxxxx / President, Xynergy Corporation
/s/
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Xxxxx Xxxxxxxxx/ C.E.O. Indigo Technology Services, Inc.
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