SHARE EXCHANGE AGREEMENT BY AND AMONG NEWLOOK INDUSTRIES CORP. AND BRADLEY POULOS BRAD POULOS HOLDINGS GLENN POULOS GLENN POULOS HOLDINGS AND SYLVAIN LAFRENIERE
BY
AND AMONG
AND
XXXXXXX
XXXXXX
XXXX
XXXXXX HOLDINGS
XXXXX
XXXXXX
XXXXX
XXXXXX HOLDINGS
AND
XXXXXXX
XXXXXXXXXX
This
Share Exchange Agreement (this “Agreement”), dated June __, 2007, is
entered into by and among Newlook Industries Corp. (“Newlook”) and each
of Xxxxxxx Xxxxxx, Xxxx Xxxxxx Holdings, Xxxxx Xxxxxx, Xxxxx Xxxxxx Holdings,
and Xxxxxxx Xxxxxxxxxx (the “Sellers,” and each a “Seller,” and
together with Newlook, each a “Party” and collectively the
“Parties”):
W
I T N E
S S E T H :
WHEREAS,
each of the Sellers is the sole owner of at least such number of the shares
(the
“Shares”) of the common stock of Wireless Age Communications, Inc.
(“Wireless Age”) as set forth on Schedule A hereto;
WHEREAS,
Newlook desires to acquire the Shares from the Sellers, and the Sellers wish
to
sell the Shares;
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:
1. Share
Purchase and Exchange. Subject to the terms and conditions stated
herein, at the Closing (as defined below), (a) the Sellers shall assign,
transfer, convey, and deliver to Newlook, and Newlook shall accept and acquire,
the Shares and any and all rights in the Shares to which such Seller is
entitled, and by so doing, each Seller will be deemed to have assigned all
of
his or her right, title and interest in and to all such Shares to Newlook;
and
(b) in exchange for the Shares, Newlook shall transfer to the Sellers, and
the
Sellers shall accept from Newlook, such number of shares of Newlook’s common
stock (the “Exchange Shares”) as set forth on Schedule A
hereto.
2. Closing
and Deliveries.
The
Closing. The closing
(the "Closing") of the transactions contemplated hereunder shall take
place simultaneously with the execution of this Agreement at such place as
the
Parties hereto may agree, provided, however, time is of the essence and the
Closing shall not be later than ten (10) days from the date of this
Agreement.
3. Representations
and Warranties; Indemnification.
3.1 Representations
and Warranties of the Sellers. As an inducement to Newlook to enter
into this Agreement and to consummate the transactions contemplated herein,
the
Sellers represent and warrant to Newlook as follows, all of which are true
and
complete as of the date of this Agreement and as of the Closing:
(a) Authority. Each
of the Sellers has the right, power, authority and capacity to execute and
deliver this Agreement, to consummate the transactions contemplated hereby
and
to perform his obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligations of the Sellers, enforceable
against each Seller in accordance with the terms hereof, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general
application.
(b) Ownership. The
Sellers are the sole record and beneficial owners of all of the Shares, have
good and marketable title to the Shares, free and clear of all Encumbrances
(as
hereinafter defined), and have full legal right and power to sell, transfer
and
deliver the Shares to Newlook in accordance with this
Agreement. "Encumbrances" shall mean any liens, pledges,
hypothecations, charges, adverse claims, options, preferential arrangements
or
restrictions of any kind, including, without limitation, any restriction of
the
use, voting, transfer, receipt of income or other exercise of any attributes
of
ownership, other than as provided under applicable securities
laws. Upon the execution and delivery of this Agreement, Newlook will
receive good and marketable title to the Shares, free and clear of all
Encumbrances.
(c) No
Conflict. None of the execution, delivery, or performance of this
Agreement, or the consummation of the transactions contemplated hereby,
conflicts or will conflict with, or (with or without notice or lapse of time,
or
both) will result in a termination, breach or violation of (i) any instrument,
contract or agreement to which any of the Sellers are a party or by which he
or
she is bound, or to which the Shares are subject; or (ii) any law, ordinance,
judgment, decree, order, statute, or regulation, or that of any other
governmental body or authority, applicable to the Sellers or the
Shares.
(d) 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 the Sellers of any of the transactions
contemplated by the Sellers under this Agreement.
(e) Full
Disclosure. No representation or warranty made by any Seller to
Newlook 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. There is no fact known to any Seller that has specific
application to the Shares and that materially adversely affects or, as far
as
can be reasonably foreseen, materially threatens the Shares that has not been
set forth in this Agreement.
3.2 Representations
and Warranties of Newlook. As an inducement to the Sellers to enter
into this Agreement and to consummate the transactions contemplated herein,
Newlook represents and warrants to the Sellers as follows, all of which are
true
and complete as of the date of this Agreement and as of the
Closing:
(a) Organization
of Newlook. Newlook is a corporation duly organized and validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being
conducted. Newlook is duly qualified as a foreign corporation to do
business and is in good standing in every jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, other than those in which the failure so to qualify would not have
a
material adverse effect on the business, operations, properties, prospects
or
condition (financial or otherwise) of Newlook.
(b) Authority. (1)
Newlook has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Exchange Shares;
(2) the execution and delivery of this Agreement by Newlook and the consummation
by it of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action and no further consent or
authorization of Newlook or its Board of Directors or stockholders is required;
and (3) this Agreement has been duly executed and delivered by Newlook and
constitutes a valid and binding obligation of Newlook enforceable against
Newlook in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws relating to,
or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(c) No
Conflict. None of the execution, delivery, or performance of this
Agreement, or the consummation of the transactions contemplated hereby,
conflicts or will conflict with, or (with or without notice or lapse of time,
or
both) will result in a termination, breach or violation of (i) any instrument,
contract or agreement to which any of the Sellers are a party or by which he
or
she is bound, or to which the Shares are subject; or (ii) any law, ordinance,
judgment, decree, order, statute, or regulation, or that of any other
governmental body or authority, applicable to the Sellers or the Shares; or
(iii) the Certificate of Incorporation or By-Laws of Newlook.
(d) 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 the Sellers of any of the transactions
contemplated by the Sellers under this Agreement.
(e) Full
Disclosure. No representation or warranty made by any Seller to
Newlook 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. There is no fact known to any Seller that has specific
application to the Shares and that materially adversely affects or, as far
as
can be reasonably foreseen, materially threatens the Shares that has not been
set forth in this Agreement.
3.3 Indemnification.
(a) The
Sellers shall jointly and severally indemnify and hold harmless Newlook and
the
officers, directors, agents, affiliates, representatives and the respective
successors and assigns of Newlook from and against any and all damages, losses,
liabilities, taxes and costs and expenses (including, without limitation,
attorneys' fees and costs) resulting directly or indirectly from (i) any
inaccuracy, misrepresentation, breach of warranty or non-fulfillment of any
of
the representations and warranties of the Sellers in this Agreement, or any
actions, omissions or statements of fact inconsistent with in any material
respect any such representation or warranty, (ii) any failure by the Sellers
to
perform or comply with any agreement, covenant or obligation in this
Agreement.
(b) Newlook
shall indemnify and hold harmless Wireless Age and the Sellers and their
respective agents, officers, directors, affiliates, representatives and
respective successors and assigns from and against any and all damages, losses,
liabilities, taxes and costs and expenses (including, without limitation,
attorneys' fees and costs) resulting directly or indirectly from (i) any
inaccuracy, misrepresentation, breach of warranty or non-fulfillment of any
of
the representations and warranties of Newlook in this Agreement, or any
actions, omissions or statements of fact inconsistent with in any material
respect any such representation or warranty, or (ii) any failure by
Newlook to perform or comply with any agreement, covenant or obligation in
this Agreement.
(c) Rules
Regarding Indemnification. The obligations and liabilities of each
party which may be subject to indemnification liability hereunder (the
“indemnifying party”) to the other party (the “indemnified party”)
shall be subject to the following terms and conditions:
(i) Claims
by Non-Parties. The indemnified party shall give written notice
within a reasonably prompt period of time to the indemnifying party of any
written claim by a third party which is likely to give rise to a claim by the
indemnified party against the indemnifying party based on the indemnity
agreements contained in this Section, stating the nature of said claim and
the
amount thereof, to the extent known. The indemnified party shall give
notice to the indemnifying party that pursuant to the indemnity, the indemnified
party is asserting against the indemnifying party a claim with respect to a
potential loss from the third party claim, and such notice shall constitute
the
assertion of a claim for indemnity by the indemnified party. If,
within thirty (30) days after receiving such notice, the indemnifying party
advises the indemnified party that it will provide indemnification and assume
the defense at its expense, then so long as such defense is being conducted,
the
indemnified party shall not settle or admit liability with respect to the claim
and shall afford to the indemnifying party and defending counsel reasonable
assistance in defending against the claim. If the indemnifying party
assumes the defense, counsel shall be selected by such party and if the
indemnified party then retains its own counsel, it shall do so at its own
expense. If the indemnified party does not receive a written
objection to the notice from the indemnifying party within thirty (30) days
after the indemnifying party’s receipt of such notice, the claim for indemnity
shall be conclusively presumed to have been assented to and approved, and in
such case the indemnified party may control the defense of the matter or case
and, at its sole discretion, settle or admit liability. If within the
aforesaid thirty (30) day period the indemnified party shall have received
written objection to a claim (which written objection shall briefly describe
the
basis of the objection to the claim or the amount thereof, all in good faith),
then for a period of ten (10) days after receipt of such objection the parties
shall attempt to settle the dispute as between the indemnified and indemnifying
parties. If they are unable to settle the dispute, the unresolved
issue or issues shall be settled by arbitration in New York, New York in
accordance with the rules and procedures of the American Arbitration
Association.
(ii) Claims
by a Party. The determination of a claim asserted by a party
hereunder (other than as set forth in section (a) above) pursuant to this
Section shall be made as follows: The indemnified party shall give written
notice within a reasonably prompt period of time to the indemnifying party
of
any claim by the indemnified party which has not been made pursuant to
subsection (a) above, stating the nature and basis of such claim and the amount
thereof, to the extent known. The claim shall be deemed to have
resulted in a determination in favor of the indemnified party and to have
resulted in a liability of the indemnifying party in an amount equal to the
amount of such claim estimated pursuant to this paragraph if within forty-five
(45) days after the indemnifying party’s receipt of the claim the indemnified
party shall not have received written objection to the claim. In such
event, the claim shall be conclusively presumed to have been assented to and
approved. If within the aforesaid forty-five (45) day period the
indemnified party shall have received written objection to a claim (which
written objection shall briefly describe the basis of the objection to the
claim
or the amount thereof, all in good faith), then for a period of sixty (60)
days
after receipt of such objection the parties shall attempt to settle the disputed
claim as between the indemnified and indemnifying parties. If they
are unable to settle the disputed claim, the unresolved issue or issues shall
be
settled by arbitration in New York, New York in accordance with the rules and
procedures of the American Arbitration Association and New York law will govern
without reference to its choice of law provision.
4. Miscellaneous.
(a) 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 (i) if by personal delivery, when so
delivered; (ii) 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 (iii) if sent through
an overnight delivery service in circumstances to which such service guarantees
next day delivery, the day following being so sent to the address of the
intended recipient as first set forth above. 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.
Notice
Address of Newlook:
000
Xxxxx
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx, Xxxxxx X0X0X0
Attn:______________
Notice
Address of Sellers:
Xxxxxxx
Xxxxxx and Xxxx Xxxxxx Holdings
_____________
_____________
Xxxxx
Xxxxxx and Xxxxx Xxxxxx Holdings
_____________
_____________
Xxxxxxx
Xxxxxxxxxx
_____________
_____________
(b) Choice
of Law. This Agreement shall be governed, construed and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein, without giving effect to principles of conflicts of
law.
(c) Jurisdiction. The
Parties hereby irrevocably consent to the in personam jurisdiction of the courts
located in the Province of Quebec, 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.
(d) Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the Parties in respect of the transactions contemplated hereby
and supersedes all prior and contemporaneous 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.
(e) 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.
(f) 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 each party, in the case of
a
waiver, by the party waiving compliance.
(g) 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.
(h) Further
Assurances. The Parties shall from time to time do and perform such
additional acts and execute and deliver such additional documents and
instruments as may be required or reasonably requested by any party to
establish, maintain or protect its rights and remedies or to effect the purposes
of this Agreement.
(i) Counterparts;
Interpretation. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument. No ambiguity in any provision
hereof shall be construed against Parties by reason of the fact it was drafted
by such party or its counsel. References to “including” means
including without limiting the generality of any description preceding such
term. Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person other than the Parties
any
rights or remedies under or by reason of this Agreement.
(j) Acceptance
by Fax. This Agreement shall be accepted, effective and binding, for
all purposes, when the Parties shall have signed and transmitted to each other,
by telecopier or otherwise, copies of the signature pages hereto.
(k) Binding
Effect; Benefits. This Agreement shall inure to the benefit of, and
be binding upon, the Parties and their respective heirs, legal representatives,
successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any person other than the
Parties, and their respective heirs, legal representatives, successors and
permitted assigns, any rights, remedies, obligations or liabilities under,
in
connection with or by reason of this Agreement, except Wireless Age, who is
an
intended beneficiary hereunder.
(l) Transfer
of Shares. The execution of this Agreement shall constitute a stock
power, which the transfer agents of each of Newlook and Wireless Age may rely
on
for purposes of transferring the shares of those Parties in the books and
records of the Parties.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Parties hereto have duly executed this Agreement on the
date first set forth above.
By: ________________________________
Name:
Xxxxx Xxxxxxx
Title:
CFO
___________________________
Xxxxxxx
Xxxxxx
XXXX
XXXXXX HOLDINGS
By: ______________________________
Name:
Xxxx Xxxxxx
Title:
Director
______________________
Xxxxx
Xxxxxx
XXXXX
XXXXXX HOLDINGS
By: __________________________
Name:
Xxxx Xxxxxx
Title:
President
_________________________
Xxxxxxx
XxXxxxxxxx
Schedule
A
|
Name
of Seller
|
Number
of Shares of Wireless Age Communications, Inc. to be
sold
|
Number
of Exchange Shares (of Newlook Industries Corporation) to be granted
therefore
|
||
|
|
|
|
|
|
|
Xxxxxxx
Xxxxxx
|
270,000
|
80,250
|
||
|
Xxxxxxx
Xxxxxx
|
51,500
|
15,307
|
||
|
Xxxx
Xxxxxx Holdings
|
1,080,000
|
321,000
|
||
|
416,557
|
||||
|
Xxxxx
Xxxxxx
|
270,000
|
80,250
|
||
|
Xxxxx
Xxxxxx Holdings
|
1,080,000
|
321,000
|
||
|
401,250
|
||||
|
Xxxxxxx
Xxxxxxxxxx
|
675,000
|
200,625
|
||
