Exhibit 10.17
SHARE EXCHANGE AGREEMENT
THIS AGREEMENT made as of the __________________ day of __________________,
1997 by and among THE XXXXXXX GROUP, INC., a South Carolina corporation (the
"Company"), and XXXX X. XXXXXXXX, and ___________________, (collectively, the
"Purchasers").
R E C I T A L S:
A. As of the date hereof, the Purchasers colletively own 30,925 shares of
common stock of the Company ("Common Stock").
B. The Purchasers desire to exchange shares of Common Stock for an equal
number of shares of the Company's Series B Convertible Preferred Stock (the
"Series B Preferred Stock") and the Company desires to make the exchange
of such shares in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. EXCHANGE OF STOCK. Subject to the terms and conditions contained
herein, and as of the date hereof, the Company hereby agrees to issue Thirty
Thousand Nine Hundred Twenty-five (30,925) shares of Series B Preferred Stock,
par value $.01 per share, of the Company (the "Shares"), to the Purchasers
upon receipt of Thirty Thousand Nine Hundred Twenty-five (30,925) shares of
Common Stock of the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In order to induce the
Purchasers to enter into this Agreement, the Company hereby represents and
warrants that:
(a) The Company has the legal right to execute and deliver this Agreement
and to carry out the transactions and perform its obligations hereunder. This
Agreement constitutes a valid, legal and binding obligation of the Company,
enforceable in accordance with its terms.
(b) The Company is a corporation, duly organized, validly existing and
in good standing under the laws of the State of South Carolina.
(c) The Shares represent Series B Preferred Stock.
3. REPRESENTATIONS DISCLAIMER. The Company shall not be deemed to have
made to the Purchasers any representation or warranty other than as expressly
made by the Company in paragraph 2 hereof.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. In order to induce the
Company to enter into this Agreement the Purchasers hereby represent and
warrant to the Company that:
(a) The Purchasers have the legal right to execute and deliver this
Agreement and to carry out the transactions and perform their obligations
contemplated hereunder. This Agreement has been duly authorized by the
Purchasers and constitutes the legal, valid and binding obligations of the
Purchasers enforceable in accordance with its terms.
(b) The Purchasers are acquiring the Shares for investment and not with
a view to or for the resale in connection with the distribution thereof.
(c) The Purchasers are the true and lawful beneficial and record owner
of the shares of Common Stock listed opposite each of their names on Exhibit A
and have good and marketable title thereto, free and clear of mortgages,
pledges, liens, security interests or any other encumbrances.
5. INDEMNIFICATION. The parties hereto agree to indemnify and hold each
other harmless as follows:
(a) The Company agrees to indemnify and hold the Purchasers harmless at
all times after the date of this Agreement from and against any and all loss,
liability, damage or deficiency resulting from any misrepresentation, breach of
warranty or nonfulfillment of any covenants or agreements on the part of the
Company contained herein or in any other document or certificate furnished by
the Company pursuant hereto and any loss or damage resulting from any claims,
litigation, actions, suits, proceedings, judgments, reasonable attorneys' fees,
costs and expenses relating to or arising out of such misrepresentation, breach
or nonfulfillment.
(b) The Purchasers agree to indemnify and hold the Company harmless at
all times after the date of this Agreement from and against any and all loss,
liability, damage or deficiency resulting from any misrepresentation, breach
of warranty or nonfulfillment of any covenants or agreements on the part of the
Purchasers contained herein or any certificate or document furnished by the
Purchasers pursuant hereto and any loss or damage resulting from any such
claims, litigation, actions, suits, proceedings, judgments, reasonable
attorneys' fees, costs and expenses related to or arising out of such
misrepresentation, breach or nonfulfillment.
(c) Should any claim be made by a person not a party to this Agreement
with respect to any matter to which the foregoing indemnity relates, the
party against whom such claim is asserted (the "Indemnified Party"), within
a reasonable period of time, shall given written notice to the other party
(the "Indemnifying Party") of any such claim, and the Indemnifying Party
shall thereafter defend or settle any such claim, at its sole expense,
on its own behalf and with counsel of its selection. In such defense or
settlement of any claims, the Indemnified Party shall cooperate with and
assist the
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Indemnifying Party to the maximum extent reasonably possible. Any payment
resulting from such defense or settlement, together with the total expense
thereof, shall be binding on the Company and the Purchasers for the purposes
of this paragraph 5.
(d) Notwithstanding the foregoing, should any claim be made by a person
not a party to this Agreement with respect to any matter to which the
foregoing indemnity relates, the Indemnified Party, on not less than thirty
(30) days' notice to the Indemnifying Party, may make settlement of such
claims, and such settlement shall be binding on the Indemnifying Party and
the Indemnified Party for the purposes of this paragraph 5; PROVIDED, HOWEVER,
that if within said thirty (30) day period the Indemnifying Party shall have
requested the Indemnified Party not to settle such claim and to deny such
claim at the expense of the Indemnifying Party, the Indemnified Party will
promptly comply and the Indemnifying Party shall have the right to defend on
its own behalf with counsel of its selection. Any payment of settlement
resulting from such contest, together with the total expense thereof, shall be
binding on the Company and the Purchasers for the purposes of this paragraph 5.
6. DUE DILIGENCE ACKNOWLEDGMENT.
(a) The Purchasers acknowledge that they have had an opportunity to
review, for information purposes only, the business and financial information
contained in the Company's Registration Statement on Form SB-2 (Reg. No.
333-28713) (the "Form SB-2") and Registration Statement on Form S-4 (Reg. No.
333-28719) (the "Form S-4"), as filed with the Securities and Exchange
Commission (the "Commission").
(b) The Purchasers acknowledge that they have made their own independent
examination, investigation, analysis and evaluation of the Company, including
Purchasers' own estimate of the value of the Company's business.
(c) The Purchasers acknowledge that they have undertaken such due
diligence (including a review of the assets, liabilities, books, records
and contracts of the Company) as the Purchasers deem adequate, including
that described above in this paragraph 6.
7. CONDITION TO CLOSING. The obligations of the Company and the Purchasers
to consummate the transactions contemplated by this Agreement are subject to
the Form SB-2 and Form S-4 having been declared effective by the Commission.
8. CLOSING. The closing of the transactions contemplated by this Agreement
shall occur on a date and at a time mutually agreed upon by the parties within
60 days of the date on which the condition specified by paragraph 7 has been
satisfied.
9. FURTHER ASSURANCES. The Company and the Purchasers hereby covenant and
agree that at any time and from time to time that they will promptly execute
and deliver such further instruments and documents and take such further
action as is reasonably necessary in order to further carry out the intent
and purpose of this Agreement.
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10. NOTICES. All notices, requests and demands and other communications to
any party hereto shall be in writing and shall be deemed to have been duly given
as if delivered by hand or mailed, certified or registered, with postage
prepaid to the following address of each party or such other addresses as may
be hereafter designated in writing by such party to the other parties:
To the Company: The Xxxxxxx Group, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Chief Financial Officer
To the Purchasers: [______________________________
______________________________
______________________________]
11. EXPENSES. It is hereby agreed and understood that the parties hereto
shall bear and pay their own expenses relative to the consummation of the
transaction referred to in this Agreement.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hreto and their respective successors and
assigns.
13. APPLICABLE LAW. The Agreement shall be governed by, and construed in
accordance with, the laws of the State of South Carolina.
14. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction, shall as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. COUNTERPARTS. This Agreement may be executed in one or more counter-
parts, all of which together shall represent the same single agreement.
16. SURVIVAL OF REPRESENTATIONS AND INDEMNITY. The representations and
warranties and the indemnification provisions contained herein shall
survive the closing and the delivery of all the required documents hereunder.
17. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties hereto with respect to the transactions contemplated herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
THE XXXXXXX GROUP, INC.
By: ______________________
Xxxxx X. Xxxxxxx
President
ATTEST:
_______________________
Xxxxxxx X. Xxxxx
Secretary
[CORPORATE SEAL]
________________________
XXXX X. XXXXXXXX
_________________________
[___________________]
_________________________
[___________________]
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