Exhibit 10.1
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT, dated as of September 13, 2004 (this
"Agreement"), between Clixtix, Inc., a New York corporation ("Clixtix"), the
undersigned shareholders ("Shareholders") of Medeorex, Inc., a Delaware
corporation ("Medeorex"), and Medeorex.
WITNESSETH:
WHEREAS, Clixtix desires to acquire the properties and other assets, and
to assume all of the liabilities and obligations, of Medeorex by means of a
share exchange with the Shareholders;
WHEREAS, the Shareholders own all of the issued and outstanding shares of
common stock of Medeorex (collectively, the "Medeorex Shares);
WHEREAS, Clixtix and the Shareholders desire to exchange shares in the
capital of Clixtix for shares in capital of Medeorex held by the Shareholders
(the "Exchange"), following which Clixtix shall own all of the outstanding
capital stock of Medeorex;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE EXCHANGE
SECTION 1.01. The Medeorex Shares. Each of the Shareholders hereby sells,
transfers and assigns to Clixtix and Clixtix hereby purchases from each
Shareholder all of Medeorex Shares held by Shareholder as set forth on Exhibit A
attached hereto and made a part hereof.
SECTION 1.02. The Clixtix Shares. In consideration for the purchase of the
Medeorex Shares Clixtix hereby issues to each Shareholder and such Shareholder
hereby accepts the number of shares of Common Stock of Clixtix set forth
opposite such Shareholder's name on Exhibit A (the "Clixtix Shares").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each of the Shareholders and Medeorex severally, and not jointly
represents and warrants to Clixtix that:
SECTION 2.01. Corporate Existence and Power. Medeorex is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
SECTION 2.02. Corporate Authorization. The execution, delivery and
performance by such Shareholder of this Agreement and the consummation by such
Shareholder of the transactions contemplated hereby have been duly authorized by
all necessary action (including
corporate action) and that this Agreement constitutes a valid, binding and
enforceable agreement of such Shareholder.
SECTION 2.03. Governmental Authorization. Except for the filings described
hereunder, the execution, delivery and performance by such Shareholder of this
Agreement and the consummation of the Exchange by such Shareholder require no
action by or in respect of, or filing with, any governmental body, agency,
official or authority.
SECTION 2.04. No Violation. The execution, delivery and performance by
such Shareholder of this Agreement and the consummation by such Shareholder of
the transactions contemplated hereby do not and will not (i) violate the
Articles of Incorporation or By-laws of Medeorex, (ii) violate any provision of
any law, rule or regulation applicable to Medeorex, (iii) breach, or result in a
default under, any existing obligation of Medeorex under any provision of any
agreement, contract or other instrument to which Medeorex is a party or by which
it or its property is bound or (iv) breach or otherwise violate any existing
obligation of Medeorex under any court or administrative order, with, judgment
or decree that names Medeorex and is specifically directed to it or its
property.
SECTION 2.05 Seller's Title to Shares; No Liens or Preemptive Rights;
Valid Issuance. (a) The Medeorex Shares constitute all of the issued and
outstanding equity securities of Medeorex. Except as provided in this Agreement,
Medeorex (i) does not have any authorized or outstanding subscription, warrant,
option, convertible security or other right (contingent or otherwise) to
purchase or acquire any shares of its capital stock, (ii) is not committed to
issue any subscription, warrant, option, convertible security or other such
right or to issue or distribute to holders of any shares of its capital stock
any evidences of indebtedness or assets, and (iii) does not have any obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire any shares of
its capital stock or any interest therein or to pay any dividend or make any
other distribution in respect thereof.
(b) Each Shareholder has and at the Closing will have good and valid title
and control of the Medeorex Shares free and clear of all encumbrances of any
kind, except those created in favor of the Purchaser pursuant hereto and those
created by applicable federal and state securities laws; and on delivery to the
Purchaser of the Medeorex Shares, good and valid title to all the Medeorex
Shares will pass to Purchaser. The Medeorex Shares have been legally and validly
issued in compliance with all applicable U.S. federal and state securities laws,
and are fully paid and non-assessable shares of Medeorex's Common Stock; and the
Medeorex Shares have all been issued under duly authorized resolutions of the
Board of Directors of Medeorex.
SECTION 2.06 Investment Intent. Each Shareholder is acquiring the Clixtix
Shares for its own account for investment and not with a view to, or for sale or
other disposition in connection with, any distribution of all or any part
thereof, except in an offering covered by a registration statement filed with
the Commission under the Securities Act covering the Clixtix Shares, or pursuant
to an applicable exemption under the Securities Act.
SECTION 2.07 Restricted Securities. Each Shareholder understands that the
Clixtix Shares have not been registered pursuant to the Securities Act of 1933
(the "Securities Act") or any applicable state securities laws, that the Clixtix
Shares will be characterized as "restricted
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securities" under federal securities laws, and that under such laws and
applicable regulations the Clixtix Shares cannot be sold or otherwise disposed
of without registration under the Securities Act or an exemption therefrom. In
this connection, each Shareholder represents that it is familiar with Rule 144
promulgated under the Securities Act, as currently in effect, and understands
the resale limitations imposed thereby and by the Securities Act. Stop transfer
instructions may be issued to the transfer agent for securities of Clixtix (or a
notation may be made in the appropriate records of the Clixtix) in connection
with the Clixtix Shares.
SECTION 2.08 Legend. It is agreed and understood by each Shareholder that
the Certificates representing the Clixtix Shares shall each conspicuously set
forth on the face or back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
SECTION 2.09 Disclosure of Information. Each Shareholder acknowledges that
he or it has been furnished with information regarding Clixtix, and the
Agreement of even date herewith, between Clixtix and Aisle Seats Inc., pursuant
to which Aisle Seats, Inc. will be acquiring certain of the assets and assuming
certain of the liabilities of Clixtix relating to its theatre ticket business.
Each Shareholder represents that such Shareholder has had an opportunity to ask
questions of and receive answers from Clixtix, its business and the intended
divesture of certain of its assets.
SECTION 2.10 Medeorex Net Worth. As at the date hereof Medeorex has a net
worth of approximately $220,000; and, none of the Shareholders and Medeorex know
of any matter that will reduce such net worth following the date hereof. For
purposes hereof the term "net worth" shall mean the amount by which net assets
exceed net liabilities,
SECTION 2.11 Intended Business. Following the consummation of the
transactions contemplated hereby, it is intended that Clixtix, through Medeorex,
will engage in the health services industry.
SECTION 2.12 True Representations. The information heretofore furnished by
the Shareholders or Medeorex to Clixtix for purposes of or in connection with
this Agreement or any transaction contemplated hereby does not, and all such
information hereafter furnished by the Shareholders or Medeorex to Clixtix will
not (in each case taken together and on the date as of which such information is
furnished), contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they are made, not misleading.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CLIXTIX
Clixtix represents and warrants to Medeorex that:
SECTION 3.01. Corporate Existence and Power. Clixtix is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by Clixtix of this Agreement and the consummation by Clixtix of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action, subject to the approval thereof of the stockholders of
Clixtix. This Agreement constitutes a valid, binding and enforceable agreement
of Clixtix.
SECTION 3.03. Governmental Authorization. The execution, delivery and
performance by Clixtix of this Agreement and the consummation of the Exchange by
Clixtix require no action by or in respect of, or filing with, any governmental
body, agency, official or authority.
SECTION 3.04. No Violation. The execution, delivery and performance by
Clixtix of this Agreement and the consummation by Clixtix of the transactions
contemplated hereby do not and will not (i) violate the Certificate of
Incorporation or By-laws of Clixtix, (ii) violate any provision of any law, rule
or regulation applicable to Clixtix, (iii) breach, or result in a default under,
any existing obligation of Clixtix under any provision of any agreement,
contract or other instrument to which Clixtix is a party or by which it or its
property is bound or (iv) breach or otherwise violate any existing obligation of
Clixtix under any court or administrative order, writ, judgment or decree that
names Clixtix and is specifically directed to it or its property. Anything
herein to the contrary notwithstanding, Clixtix makes no representation or
warranty as to compliance with state securities laws in any jurisdiction in
which a Shareholder may reside.
SECTION 3.05 True Representations. The information furnished by Clixtix to
Shareholders and Medeorex for purposes of or in connection with this Agreement
or any transaction contemplated hereby does not, and all such information
hereafter furnished by Clixtix to Shareholders and Medeorex will not (in each
case taken together and on the date as of which such information is furnished),
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they are made, not misleading.
SECTION 3.06 Clixtix Shares. The Clixtix Shares have been legally and
validly issued in compliance with all applicable U.S. federal and state
securities laws, and are duly authorized, fully paid and non-assessable shares
of Clixtix's Common Stock.
ARTICLE IV
TERMINATION
SECTION 4.01. Termination. This Agreement may be terminated and the
Exchange may be abandoned:
(i) by mutual written consent of Medeorex and Clixtix; or
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(ii) by either any Shareholder or Clixtix, if there shall be any law
or regulation that makes consummation of the Exchange illegal or otherwise
prohibited, or if any judgment, injunction, order or decree enjoining Clixtix or
any Shareholder from consummating the Exchange is entered and such judgment,
injunction, order or decree shall be come final and nonappealable.
SECTION 4.02. Effect of Termination. If this Agreement is terminated
pursuant to Section 4.01, this Agreement shall become void and of no effect with
no liability on the part of either party hereto.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Survival of Representations and Warranties. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time or the termination of this Agreement.
SECTION 5.02. Amendments; No Waivers. (a) Any provision of this Agreement
may, subject to applicable law, be amended or waived prior to the Effective Time
if, and only if such amendment or waiver is in writing and signed by Clixtix and
the Shareholders intended to be bound thereby.
(b) No failure or delay by any party hereto in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 5.03. Integration. All prior or contemporaneous agreements,
contracts, promises, representations, and statements, if any, between Clixtix
and any Shareholder, or their representatives, are merged into this Agreement,
and this Agreement shall constitute the entire understanding between Clixtix and
the Shareholders with respect to the subject matter hereof.
SECTION 5.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto.
SECTION 5.05. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
giving effect to principles of conflicts of law.
SECTION 5.06. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
the counterpart hereof signed by the other party hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the day and
year first-above written.
CLIXTIX, INC.,
a New York corporation
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
President
THE SHAREHOLDERS
/s/ Viktoria Benkovitch
Viktoria Benkovitch
Xxxxxx Capital Holding, Ltd.
By: /s/ Xxx X. Xxxxx
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/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxx and Xxxxxx Xxxxxxxx, husband and wife
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Xxxxxx and Xxxxxx Xxxxxxxx, husband and wife
Weston Capital Quest Corporation
By: /s/ Xxx Xxxxxx
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Xxx Xxxxxx
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EXHIBIT A
The Exchange
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Shareholder Number of Medeorex Shares Number of Clixtix Shares
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Viktoria Benkovitch 100 1,076,802
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Xxxxxx Capital Holding, Ltd. 217 2,336,659
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Xxxx X. Xxxxxxx 42 452,258
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Xxxxxx and Xxxxxx Xxxxxxxx, 42 452,258
husband and wife
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Weston Capital Quest Corporation 16 172,289
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