FORM OF SHARE EXCHANGE AGREEMENT
FORM
OF SHARE EXCHANGE AGREEMENT
SHARE
EXCHANGE AGREEMENT (this “Agreement”) dated as of November 10th, 2005, by and
among Identica Holdings Corporation, a Nevada corporation (the “Holding
Company”), Identica Corp., a Canadian corporation (“Identica”), and the
stockholders of Identica set forth in
Exhibit A
hereto
(collectively, the “Stockholders”).
R
E C I
TA X X
X. Holding
Company was formed by Identica on November 10th, 2005 as a Nevada corporation
for the purpose of entering into this Agreement, and its Board of Directors
of
Identica is comprised of the same individuals serving on Identica’s Board of
Directors. As of the date of this Agreement, Holding Company has not issued
any
shares of its capital stock, owns no assets, and has not conducted any
business.
B.
The
parties hereto desire to enter into this Agreement so that the stockholders
of
Identica shall become the stockholders of Holding Company and Identica shall
become a wholly owned subsidiary of Holding Company.
C.
Pursuant
to the terms and conditions of this Agreement, the Stockholders, who in the
aggregate own all of the outstanding and issued shares of Identica’s capital
stock (the “Identica Shares”), shall exchange the Identica Shares for newly
issued shares of common stock of Holding Company in accordance with an exchange
ratio of 1:1, so that each issued and outstanding Identica Share shall be
converted into one (1) share of common stock of Holding Company.
NOW,
THEREFORE, in consideration of the covenants, promises and representations
set
forth herein, and for other good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged, and intending to be legally
bound
hereby, the parties agree as follows:
ARTICLE
I
DEFINITIONS
1.1
Certain
Definitions.
As used
in this Agreement and the schedules hereto, the following terms have the
respective meanings set forth below:
(a)
“Claims”
means any and all claims, demands or causes of action, relating to or resulting
from such Person being a stockholder of Identica.
(b) “Closing”
has the meaning given to such term in Section 3.1.
(c)
“Contract”
means any contract, agreement, indenture, deed of trust, license, note, bond,
mortgage, lease, guarantee and any similar understanding or arrangement,
whether
written or oral.
1
(d)
“Encumbrances”
means security interests, liens, Claims, charges, title defects, deficiencies
or
exceptions (including, with respect to real property, defects, deficiencies
or
exceptions in, or relating to, marketability of title, or leases, subleases
or
the like affecting title), mortgages, pledges, easements, encroachments,
restrictions on use, rights of-way, rights of first refusal, conditional
sales
or other title retention agreements, covenants, conditions or other similar
restrictions (including restrictions on transfer) or other encumbrances of
any
nature whatsoever.
(e) “Exchange
Shares” has the meaning given to such term in Section 2.1.
(f)
“Identica
Shares” has the meaning given to such terms in the Recitals.
(g)
“Person”
means an individual, partnership, corporation, limited liability company,
joint
stock company, unincorporated organization or association, trust, joint venture
or governmental authority.
(h)
“Securities
Act” means the Securities Act of 1933, as amended.
1.2
References
and Title.
All
references in this Agreement to articles, sections, subsections and other
subdivisions refer to the articles, sections, subsections and other subdivisions
of this Agreement unless expressly provided otherwise. Titles appearing at
the
beginning of any section or subdivision are for convenience only and do not
constitute any part of such subdivisions and shall be disregarded in construing
the language contained in such subdivisions. The words “this Agreement,” “this
instrument,” “herein,” “hereof,” “hereby,” “hereunder” and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The phrases “this Section” and “this subsection”
and similar phrases refer only to the sections or subsections hereof in which
such phrases occur. Pronouns in masculine, feminine and neuter genders shall
be
construed to include any other gender, and words in the singular form shall
be
construed to include the plural and vice versa, unless the context otherwise
requires.
ARTICLE
II
SHARE
EXCHANGE
2.1
Share
Exchange.
Subject
to the terms and conditions stated herein, at the Closing:
(a)
each
Stockholder shall assign, transfer, convey, and deliver to Holding Company
all
Identica Shares held by such Stockholder and any and all rights in such shares
to which such Stockholder is entitled, and by doing so will be deemed to
have
assigned all of such Stockholder’s respective right, title and interest in and
to all such Identica Shares to Holding Company; and
2
(b)
in
exchange for each Identica Share assigned by such Stockholder to Holding
Company, Holding Company shall issue to such Stockholder, and such Stockholder
shall accept and acquire from Holding Company, one (1) newly issued share
of the
common stock of Holding Company (the “Exchange Shares”).
ARTICLE
III
CLOSING
3.1
Date
and Location of the Closing.
The
closing (the "Closing") of the transactions contemplated hereunder shall
take
place at the offices of Identica simultaneously with the execution of this
Agreement by all the parties hereto, or at such other time and place as is
mutually agreed upon in writing.
3.2 Deliveries.
At the
Closing,
(a)
Identica and the Stockholders shall deliver to Holding Company the following:
(i)
stock
certificates evidencing all the Identica Shares, duly endorsed in blank or
accompanied by stock powers duly executed in blank, signature medallion
guaranteed, in proper form for transfer to Holding Company;
(ii)
any
documentary evidence of the due recordation in Identica’s share register of
Holding Company’s full and unrestricted title to all of the Identica Shares;
and
(iii)
such other documents as may be required under applicable law or reasonably
requested by Holding Company.
(b)
Holding Company shall deliver to each of the Stockholders:
(i)
certificates evidencing the Exchange Shares to which each respective Stockholder
is entitled to receive hereunder; and
(ii)
such
other documents as may be required under applicable law or reasonably requested
by a Stockholder.
(c)
The
Exchange Shares issued upon the surrender for exchange of the Identica Shares
in
accordance with the terms hereof shall be deemed to have been issued in full
satisfaction of all rights of the Stockholders pertaining to such Shares.
Accordingly, at the Closing the Stockholders shall have no rights in
Identica.
3
3.3 Wholly-Owned
Subsidiary.
At and
after the Closing, the share exchange contemplated hereby will have the effects
set forth in this Agreement, and Identica shall become a wholly-owned subsidiary
of Holding Company.
3.4
Restrictive Legends.
Certificates evidencing the Exchange Shares pursuant to this Agreement may
bear
the following legend, including without limitation, any legend required by
the
laws of the jurisdiction in which the Stockholders reside, and any legend
required by any applicable law, including without limitation, any legend
that
will be useful to aid compliance with Regulation D or other regulations adopted
by the Securities and Exchange Commission under the Securities Act:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED
IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS TRANSFERRED PURSUANT TO ANY VALID
EXEMPTION FROM REGISTRATION AVAILABLE UNDER SUCH ACT.”
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDERS
As
an
inducement to Holding Company to enter into this Agreement and to consummate
the
transactions contemplated herein, each Stockholder represents and warrants
to
Holding Company as follows:
4.1
Authority.
The
Stockholder has the right, power, authority and capacity to execute and deliver
this Agreement to which it is or will become a party, to consummate the Exchange
and the other transactions contemplated hereby and thereby and to perform
its
respective obligations under this Agreement to which it is or will become
a
party. Any of the Stockholders that is an entity has all requisite corporate
power and authority to enter into and deliver this Agreement and to consummate
the transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by each Stockholder and is enforceable against such
Stockholder in accordance with the terms hereof. Each Stockholder has all
authorizations and consents necessary for the execution and delivery of this
Agreement, and for the performance of its obligations hereunder. This Agreement
constitutes the legal, valid and binding obligations of the Stockholders,
enforceable against it in accordance with the terms hereof.
4.2 Ownership.
Each
Stockholder has, and at the Closing will have, (i) good and marketable title
to
such Stockholder’s respective Identica Shares, free and clear of all
Encumbrances, other than any restrictions under the Securities Act and
applicable state securities laws and (ii) full legal right and power to sell,
transfer and deliver such Identica Shares to Holding Company in accordance
with
this Agreement. The Identica Shares are the only equity securities of Identica
held by each Stockholder. Upon delivery of the Identica Shares to be exchanged
to Holding Company in accordance with this Agreement, Holding Company will
receive good and marketable title to all the Identica Shares, free and clear
of
all Encumbrances, other than any restrictions under the Securities Act and
applicable state securities laws.
4
4.3
No
Conflict.
None
of
the execution, delivery or performance of this Agreement to which any of
the
Stockholders is or will become a party, and the consummation of the transactions
contemplated hereunder by such Stockholder conflicts or will conflict with
or
results or will result in any breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any Encumbrance upon, any of its properties or assets pursuant
to
(i) the terms of any Contract to which he is a party or by which he is bound
or
to which any of its properties is subject, which conflict, breach, violation
or
default would adversely affect the Stockholder's ability to perform its
obligations hereunder, other than the Shareholders’ Agreement dated August 15,
2005 (the “Shareholders’ Agreement”); (ii) any statute, rule or regulation of
any governmental authority having jurisdiction over him or any of his activities
or properties; or (iii) the terms of any order of any arbitrator or any
governmental authority having such jurisdiction.
4.4
No
Consent.
No
consent, approval, authorization or order of, or any filing or declaration
with
any governmental authority or any other Person is required for the consummation
by any of the Stockholders of any of the transactions on its part contemplated
under this Agreement, other than the Shareholders’ Agreement which will be
modified and amended in accordance with this Agreement and the transactions
contemplated hereby.
4.5
Investment.
The
Stockholders are acquiring the Exchange Shares for investment, for such
Stockholder’s own account and not with a view to distribution. The Stockholders
acknowledge that the Exchange Shares delivered pursuant to the Exchange will
not
be registered under the Securities Act and may only be transferred if the
shares
are eventually registered or if an applicable exemption exists for the transfer
under securities laws. The Stockholders understand and acknowledge that the
offering of the Exchange Shares pursuant to this Agreement is made on the
basis
of an exemption from registration pursuant to Section 4(2) and/or Section
3(b)
of the Securities Act and Regulations S and D thereunder and that Holding
Company's reliance upon such exemption is predicated upon such Stockholder's
representations as set forth in this Agreement. The Stockholders acknowledge
that due to this lack of registration, there may not be a market for the
Exchange Shares.
4.6
Experience.
Each
of
the Stockholders represent that: (a) such Stockholder has such knowledge
and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of his prospective investment in the Exchange Shares; and
(b)
such Stockholder has received all the information he has requested from Holding
Company and considers necessary or appropriate for deciding whether to obtain
the Exchange Shares.
5
4.7
Agreements
Regarding Company Shares.
There
are no voting trusts or other Contracts or understandings to which any of
the
Stockholders is a party with respect to the transfer, Encumbrance, voting
or
registration of any the Identica Shares and there are no Contracts relating
to
the issuance, sale or transfer of any equity securities or other securities
of
Identica, other than as provided for in the Shareholders’
Agreement.
4.8
Full
Disclosure.
No
representation or warranty of the Stockholders in this Agreement omits to
state
a material fact necessary to make the statements herein, in light of the
circumstances in which they were made, not misleading.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF HOLDING COMPANY
As
an
inducement to the Stockholders to enter into this Agreement and to consummate
the transactions contemplated herein, Holding Company represents and warrants
to
the Stockholders as follows:
5.1 Organization.
Holding
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Nevada. As of the date of this Agreement,
Holding
Company has not issued any shares of its capital stock, owns no assets, and
has
not conducted any business operations.
5.2
Corporate
Power and Authority.
Holding
Company has all requisite corporate power and authority to enter into and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution, delivery, and performance of this Agreement by Holding Company
and the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary action and no other corporate action or corporate
proceeding on the part of Holding Company is necessary to authorize the
execution, delivery, and performance by Holding Company of this Agreement
and
the consummation by Holding Company of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Holding Company and
constitutes the legal, valid and binding obligation of Holding Company,
enforceable against Holding Company in accordance with its terms.
5.3
Exchange
Shares.
The
Exchange Shares shall constitute all of the issued and outstanding shares
of the
common stock of Holding Company on a fully diluted basis. As of the Closing,
all
of the Exchange Shares shall be duly authorized, validly issued, fully paid
and
nonassessable, and not issued in violation of any preemptive or similar rights.
Upon delivery to the Stockholders of the certificates representing the Exchange
Shares at the Closing, the Stockholders will acquire good and valid title
to
such shares, free and clear of any Encumbrances, other than restrictions
under
the Securities Act and applicable state securities laws.
6
5.4 Full
Disclosure.
No
representation or warranty of Holding Company in this Agreement omits to
state a
material fact necessary to make the statements herein, in light of the
circumstances in which they were made, not misleading.
ARTICLE
VI
ADDITIONAL
COVENANTS
6.1
Further
Assurances.
From
time to time whether before, at or following the Closing, each party shall
make
reasonable commercial efforts to take, or cause to be taken, all actions,
and to
do, or cause to be done, all things reasonably necessary, proper or advisable,
including as required by applicable laws, to consummate and make effective
as
promptly as practicable the transactions contemplated by this
Agreement.
6.2 Release
of Claims By the Stockholders.
In
consideration of the Exchange Shares, from and after the Closing each
Stockholder and its respective shareholders, directors, officers,
representatives, heirs, executors, successors and assigns (the "Waiving
Parties"), hereby releases, waives and forever discharges, any and all Claims,
known or unknown, that the Waiving Party ever had, now has or may have against
Identica and its officers, directors, employees or agents in connection with
or
arising out of any act or omission of Identica or its officers, directors,
employees, advisers or agents, in such capacity, at or prior to the Closing;
provided,
however,
that
nothing in this Section shall be deemed a waiver by the Waiving Parties of
any
other rights it may have against Identica (i.e., as a debt holder, option
or
warrant holder or otherwise) or under this Agreement.
ARTICLE
VII
INDEMNIFICATION;
SURVIVAL
7.1 Indemnification
by the Stockholders.
Each
Stockholder shall indemnify and hold harmless Holding Company and its
affiliates, officers, directors, stockholders, employees and agents and the
successors and assigns of all of them (the "Holding Company Indemnified
Parties"), and shall reimburse the Holding Company Indemnified Parties for,
any
loss, liability, claim, damage, expense (including, but not limited to, costs
of
investigation and defense and attorneys' fees) (collectively, "Damages"),
arising from or in connection with (a) any inaccuracy or breach of any of
the
representations and warranties of such Stockholder in this Agreement or in
any
certificate or document delivered by such Stockholder pursuant to this
Agreement, or any actions, omissions or statements of fact inconsistent with
in
any respect any such representation or warranty, or (b) any failure by such
Stockholder to perform or comply with any agreement, covenant or obligation
in
this Agreement or in any certificate or document delivered by such Stockholder
pursuant to this Agreement to be performed by or complied with by such
Stockholder.
7.2 Indemnification
by Holding Company.
Holding
Company shall indemnify and hold harmless Identica, the Stockholders, and
their
affiliates, officers, directors, stockholders, employees and agents and the
successors and assigns of all of them (the "Identica Indemnified Parties"),
and
shall reimburse the Identica Indemnified Parties for, any Damages arising
from
or in connection with (a) any inaccuracy or breach of any of the representations
and warranties of Holding Company in this Agreement or in any certificate
or
document delivered by Holding Company pursuant to this Agreement, or any
actions, omissions or statements of fact inconsistent with in any respect
any
such representation or warranty, or (b) any failure by Holding Company to
perform or comply with any agreement, covenant or obligation in this Agreement
or in any certificate or document delivered by Holding Company pursuant to
this
Agreement to be performed by or complied with by Holding Company.
7
7.3 Survival.
All
representations, warranties, covenants and agreements of the parties contained
herein or in any other certificate or document delivered pursuant hereto
shall
survive for three years from the Closing.
ARTICLE
XIII
MISCELLANEOUS
8.1
Notices.
All
notices or other communications required or permitted hereunder shall be
in
writing. Any notice, request, demand, claim or other communication hereunder
shall be deemed duly given (a) if by personal delivery, when so delivered,
(b)
if mailed, three (3) business days after having been sent by registered or
certified mail, return receipt requested, postage prepaid and addressed to
the
intended recipient as set forth below, or (c) if sent through an overnight
delivery service in circumstances to which such service guarantees next day
delivery, the day following being so sent:
|
(1)
|
If
to Holding Company or Identica:
|
||
|
_______________________
|
|||
|
_______________________
|
|||
|
_______________________
|
|||
|
Attn:
___________________
|
|||
|
With
a copy to:
|
|||
|
Xxxxx
Xxxxx, Esq.
|
|||
|
Xxxxx
Xxxxx & Associates
|
|||
|
00
Xxxxxxxxxx Xxxxxx
|
|||
|
Xxxxxxxxxx,
XX 00000
|
|||
(2) If
to a
Stockholder, to the address of such Stockholder as set forth on Exhibit
A.
Any
party
may change the address to which notices and other communications hereunder
are
to be delivered by giving the other parties notice in the manner herein set
forth.
8
8.2
Choice
of Law.
This
Agreement shall be governed, construed and enforced in accordance with the
laws
of the State of Nevada and the federal laws of United States applicable therein,
without giving effect to principles of conflicts of law.
8.3
Jurisdiction. The parties hereby irrevocably consent to the in
personam jurisdiction of the state or federal courts located in ___________,
in
connection with any action or proceeding arising out of or relating to this
Agreement or the transactions and the relationships established thereunder.
The
parties hereby agree that such courts shall be the venue and exclusive and
proper forum in which to adjudicate such matters and that they will not contest
or challenge the jurisdiction or venue of these courts.
8.4 Waiver
of any and all Rights to a Trial by Jury.
All
parties to this Agreement unconditionally, irrevocably and expressly waive
all
rights to trial by jury in any action, proceeding, suit, counterclaim or
cross-claim in any matter (whether sounding in tort, contract or otherwise)
in
any way arising out of or otherwise relating to this Agreement or the
transaction or the relationships established hereunder. All parties confirm
that
the foregoing waiver of a trial by jury is informed and freely
made.
8.5 Entire
Agreement.
This
Agreement and such other agreements related to this transaction executed
simultaneously herewith set forth the entire agreement and understanding
of the
parties in respect of the transactions contemplated hereby and supersedes
all
prior agreements, arrangements and understandings of the parties relating
to the
subject matter hereof. No representation, promise, inducement, waiver of
rights,
agreement or statement of intention has been made by any of the parties which
is
not expressly embodied in this Agreement, such other agreements, notes or
instruments related to this transaction executed simultaneously herewith,
or the
written statements, certificates, schedules or other documents delivered
pursuant to this Agreement or in connection with the transactions contemplated
hereby.
8.6 Assignment.
Each
party's rights and obligations under this Agreement shall not be assigned
or
delegated, by operation of law or otherwise, without the other party's prior
consent, and any such assignment or attempted assignment shall be void, of
no
force or effect, and shall constitute a material default by such
party.
8.7
Amendments.
This
Agreement may be amended, modified, superseded or cancelled, and any of the
terms, covenants, representations, warranties or conditions hereof may be
waived, only by a written instrument executed by Holding Company, Identica
and
the Stockholders, in the case of a waiver, by the party waiving
compliance.
8.8 Waivers.
The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or the breach of any term,
covenant, representation or warranty contained in this Agreement, whether
by
conduct or otherwise, in any one or more instances shall be deemed to be
or
construed as a further or continuing waiver of any such condition or breach
or a
waiver of any other term, covenant, representation or warranty of this
Agreement.
9
8.9 Execution.
This
Agreement may be executed simultaneously in two or more counterparts and
by
facsimile, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
8.10 Severability.
If any
term, provisions, covenant or restriction of this Agreement is held by a
court
of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and
shall
in no way be affected, impaired or invalidated so long as the economic or
legal
substance of the transactions contemplated hereby is not affected in any
manner
materially adverse to any party. Upon such determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
8.11
Independent
Representation.
Each of
the parties hereto further acknowledges and agrees that he or it, as the
case
may be, has been advised by counsel during the course of negotiations leading
up
to the execution and delivery of this Agreement and had significant input
in the
development of this Agreement. This Agreement shall not, therefore, be construed
more strictly against any party responsible for its drafting regardless of
any
presumption or rule requiring construction against the party whose attorney
drafted this Agreement.
[remainder
of page intentionally left blank; signature page to
follow]
10
IN
WITNESS WHEREOF, the parties have duly executed this Share Exchange Agreement
as
of the date first above written.
|
IDENTICA
HOLDINGS CORPORATION
|
|
|
By:
___________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
IDENTICA
CORP.
|
|
|
By:
___________________________
|
|
|
Name:
|
|
|
Title:
|
[Remainder
of Page Intentionally Omitted; Signatures of Stockholders to
Follow]
11
STOCKHOLDERS’
SIGNATURE PAGE
IN
WITNESS WHEREOF, the undersigned has executed this Share Exchange Agreement,
dated as of November ___, 2005, by and among Identica Holdings Corporation,
Identica Corp., and the stockholders of Identica Corp., to which this signature
page is attached, on the date set forth immediately above the undersigned’s
signature below, and by doing so agrees to be bound by the terms of such
Agreement as a Stockholder (defined therein).
Date:
November
___, 2005
|
INDIVIDUAL:
|
|
|
___________________________________________________
|
|
|
(Signature)
|
|
|
___________________________________________________
|
|
|
(Print
Name)
|
|
|
PARTNERSHIP,
CORPORATION, LIMITED LIABILITY COMPANY, TRUST, CUSTODIAL ACCOUNT,
OTHER:
|
|
|
___________________________________________________
|
|
|
(Name
of Entity)
|
|
|
By:
________________________________________________
|
|
|
(Signature)
|
|
|
________________________________________________
|
|
|
(Print
Name and Title)
|
12
EXHIBIT
A
|
Name
of Identica Stockholder
|
Address
|
Number
of Identica Shares
to
be Exchanged
for
Exchange Shares
|
13
