EXHIBIT 2.01
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 12th day of November, 1998, by and among Apple Tree
Capital Corp., a Florida corporation, (the "ISSUER"), and Xxxx X. Xxxxxxx,
("EPL"), Schimatic Technologies, Inc. ("ST") and R&D Technologies, Inc. ("R&D")
(and collectively referred to as the "PURCHASERS")
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to Xxxx Xxxx as thc 100% owner of ST,
4,675,00 shares and Xxxxx Xxxxx as the 100% owner of R&D, 3,825,000 shares of
the common stock of ISSUER, $0.01 par value (the "Shares"), in exchange for 100%
of the issued and outstanding shares of ST and R&D, such that ST and R&D shall
become a wholly owned subsidiary of the ISSUER. In addition, as a material
inducement to the transaction, EPL will cancel 4,675,000 shares of his common
stock of the Issuer.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to ST
and R&D the following:
i. Organization. ISSUER is a corporation duly organized,
validly existing, and in good standing under the laws of Florida, and 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 in Florida. All actions
taken by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of Florida.
ii. Capital. The authorized capital stock of ISSUER consists
of 50,000,000 shares of common stock, $0.001 par value, of which 5,025,000
shares are issued and outstanding. Of these 5,025,000 shares, the EPL owns
5,000,000 shares. 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. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating ISSUER to issue or to transfer from
treasury any additional shares of its capital stock. None of the outstanding
shares of ISSUER are subject to any stock restriction agreements. All of the
shareholders of ISSUER have valid title to such shares and acquired their shares
in a lawful transaction and in accordance with the laws of Florida.
Apple Tree Capital Corp. Stock Exchange Agreement, Page 1
iii. Financial Statements. Annexed hereto as Exhibit B to this
Agreement are the audited Financial Statements of the ISSUER as of October 5,
1998, and the related statements of income and retained earnings for the period
then ended. The financial statements have been prepared in accordance with
generally accepted accounting principles consistently followed by ISSUER
throughout the periods indicated, and fairly present the financial position of
ISSUER as of the date of the financial statements.
iv. Absence of Changes. Since the date of the financial
statements, there has not been any change in the financial condition or
operations of ISSUER, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due that is not reflected on the ISSUERS' financial
statement. ISSUER is not aware of any pending, threatened, or asserted claims,
lawsuits or contingencies involving ISSUER or its common stock. There is no
dispute of any kind between ISSUER and any third party, and no such dispute will
exist at the closing of this Agreement. At closing, ISSUER will be free from any
and all liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by ISSUER and the
performance by ISSUER 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 ISSUER, or its shareholders are a party, or by which they
may be bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would cause ISSUER to be liable to
any party, or (c) an event that would result in the creation or imposition or
any lien, charge or encumbrance on any asset of ISSUER or upon the securities of
ISSUER to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of representations and warranties
made by the ISSUER, or in any certificate or memorandum furnished or to be
furnished by the ISSUER, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not currently carrying on
any business and is not a party to any contract, agreement or lease. No person
holds a power of attorney from ISSUER.
ix. Compliance with Laws. To the best of its knowledge, ISSUER
has complied with, and is not in violation of any federal, state, or local
statute, law, and/or regulation.
x. Litigation. ISSUER is not (and has not been) a party to any
suit, action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best knowledge of the ISSUER, there
is no basis for any such action or proceeding and no such action or proceeding
is threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
Apple Tree Capital Corp. Stock Exchange Agreement, Page 2
xi. Conduct of Business. Prior to the closing, ISSUER shall
conduct its business in the normal course) and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any liabilities,
(5) acquire or dispose of any assets, enter into any contract, guarantee
obligations of any third party, or (6) enter into any other transaction.
xii. Corporate Documents. Copies of each of the following
documents, which are true complete and correct in all material respects, will be
attached to and made a part of this Agreement:
(1) Articles of Incorporation;
(2) Bylaws;
(3) Minutes of Shareholders Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Audited Financial Statements of the Company
dated March 13, 1998, statements described
in Section 2(iii);
(7) Stock register and stock records of ISSUER
and a current, accurate list of ISSUER's
shareholders.
xiii. Documents. All minutes, consents or other documents
pertaining to ISSUER to be delivered at closing shall be valid and in accordance
with the laws of Florida.
xiv. The Shares to be issued pursuant to this Agreement will
be, at closing, free and clear of all liens, security interests, pledges,
charges, claims, encumbrances and restrictions of any kind. None of such Shares
are or will be subject to any voting trust or agreement. No person holds or has
the right to receive any proxy or similar instrument with respect to such
shares, except as provided in this Agreement, the ISSUER is not a party to any
agreement which offers or grants to any person the right to purchase or acquire
any of the securities to be issued pursuant to this Agreement. There is no
applicable local, state or federal law, rule, regulation or decree which would,
as a result of the issuance of the Shares, impair, restrict or delay any voting
rights with respect to the Shares.
3. PURCHASERS represent and warrant to ISSUER the following:
i. Organization. PURCHASERS are corporations duly organized,
validly existing, and in good standing under their respective state laws of
incorporation and have all necessary corporate powers to own properties and
carry on a business, and is duly qualified to do business and is in good
standing in Canada. All actions taken by the Incorporators, directors and
shareholders of PURCHASERS have been valid and in accordance with their
respective state laws of incorporation.
ii. Counsel. PURCHASERS represent and warrant that prior to
Closing, it has been represented by independent counsel.
4. INVESTMENT INTENT. PURCHASERS are acquiring the Shares for its own
account for purposes of investment and without expectation, desire, or need for
resale and not with the view toward distribution, resale, subdivision, or
fractionalization of the Shares.
Apple Tree Capital Corp. Stock Exchange Agreement, Page 3
5. CLOSING. The closing of this transaction shall take place at the law
offices of Xxxx X. Xxxxxxx, 0000 X.X. 000xx Xxxxxx, Xxxxx 000, Xxxxx. Xxxxxxx,
00000. Unless the closing of this transaction takes place on or before November
13, 1998, then either party may terminate this Agreement.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the
issuance of a certificate or certificates for the 8,500,000 Shares to be issued
pursuant to this Agreement.
(2) Instructions to the ISSUER's transfer agent to
cancel 4,475,000 shares currently owned by EPL.
(3) The resignation of the current officers and
directors of ISSUER.
(4) A Board of Directors resolution appointing such
person as MEC designate as a director(s) of ISSUER.
(5) Audited financial statements of ISSUER for the
period ending October 5.1998.
(6) All of the business and corporate records of
ISSUER, including but not limited to correspondence files, bank statements,
checkbooks, savings account books, minutes of shareholder and directors
meetings, financial statements, shareholder listings, stock transfer records,
agreements and contracts.
ii. PURCHASERS.
(1) Delivery to the ISSUER, or to its Transfer Agent,
the certificates representing 100% of the issued and outstanding stock of
PURCHASERS.
(2) wire transfer payable to the Xxxx X. Xxxxxxx,
P.A. as follows:
(a) $50,000 on or before January 5, 1999.
(b) $50,000 on or before February 5, 1999.
(c) $50,000 on or before March 5, 1999.
All funds shall be wired to:
CITY NATIONAL BANK
000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
ABA: 000000000
CREDIT THE ACCOUNT OF XXXX X. XXXXXXX, P.A.,
TRUST ACCOUNT
ACCOUNT NUMBER: 10002924139
Apple Tree Capital Corp. Stock Exchange Agreement, Page 4
7. MISCELLANEOUS.
i. 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.
ii. 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.
iii. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the State of Florida. If any action is
brought among the parties with respect to this Agreement or otherwise, by way of
a claim or counterclaim, the parties agree that in any such action, and on all
issues, the parties irrevocably waive their right to a trial by jury. Exclusive
jurisdiction and venue for any such action shall be the State Courts of
Miami-Dade County, Florida. In the event suit or action is brought by any party
under this Agreement to enforce any of its terms, or in any appeal therefrom, it
is agreed that the prevailing party shall be entitled to reasonable attorneys
fees to be fixed by the arbitrator, trial court, and/or appellate court.
iv. 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.
v. Time of Essence. Time is of the essence of this Agreement
and of each and every provision hereof.
vi. Entire Agreement. This Agreement contains the entire
Agreement and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vii. 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.
viii. 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, and properly addressed, and by fax, as follows:
Apple Tree Capital Corp. Stock Exchange Agreement, Page 5
ISSUER: Xxxx X. Xxxxxxx, Esquire
and EPL 0000 X.X. 000xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
PURCHASERS: Xxxx Xxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement on
November 12, 1998.
APPLE TREE CAPITAL CORP. SCHIMATIC TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxx By:
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Xxxx X. Xxxxxxx, President Xxxx Xxxx, President
R&D TECHNOLOGY, INC.
/s/ Xxxx X. Xxxxxxx By:
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Xxxxx Xxxxx, President
Apple Tree Capital Corp. Stock Exchange Agreement, Page 6
