EX-2.3
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement ("Agreement") is entered into this 10th
day of July, 2001 by and between xXxx.xxx, Inc., ("ECOC") a Nevada
corporation with principal offices located at 0000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, and Xxxxxxxxx Xxxxxxxxxx
("Xx. Xxxxxxxxxx") a Utah resident.
WHEREAS, ECOC desires to acquire from Xx. Xxxxxxxxxx One Hundred
Eighty Six Thousand (186,000) restricted shares of the Class A
Convertible Preferred stock of Royal Oasis Corporation, a Nevada
corporation ("Royal Oasis"), in exchange for One Hundred Eighty Six
Thousand (186,000) restricted shares of the Class A Convertible
Preferred stock of ECOC.
NOW, THEREFORE in exchange for the mutual consideration set out
herein, the sufficiency of which is hereby acknowledged, the parties
agree as follows:
1. Exchange. In a tax free exchange, ECOC will acquire from Xx.
Xxxxxxxxxx One Hundred Eighty Six Thousand (186,000) restricted
shares of the Class A Convertible Preferred stock of Royal Oasis,
valued at $10.00 per share ("Royal Oasis Shares"), in exchange for
One Hundred Eighty Six Thousand (186,000) restricted shares of ECOC
Class A Convertible Preferred stock, valued at $10.00 per share
("ECOC Shares").
2. Exchange of Shares. On or before July 27, 2001 (the "Closing
Date"), the above-mentioned shares shall be exchanged.
3. Termination. This Agreement may be terminated at any time
prior to the Closing Date:
A. By ECOC or Xx. Xxxxxxxxxx:
(1) If there shall be any actual or threatened action or proceeding
by or before any court or any other governmental body which shall
seek to restrain, prohibit, or invalidate the transactions
contemplated by this Agreement; or if, in either party's judgment,
exercised in good faith and based upon the advice of legal counsel,
it is inadvisable to proceed with the transactions contemplated by
this Agreement; or
(2) If the Closing shall have not occurred on the Closing Date, or
on such later date as approved by parties hereto, other than for
reasons set forth herein.
B. By Xx. Xxxxxxxxxx:
(1) If ECOC fails to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of ECOC contained herein shall be
inaccurate in any material respect.
C. By ECOC:
(1) If Xx. Xxxxxxxxxx fails to comply in any material respect with
any of its covenants or agreements contained in this Agreement or if
any of the representations or warranties of Xx. Xxxxxxxxxx contained
herein shall be inaccurate in any material respect.
If this Agreement is terminated pursuant to this Paragraph, this
Agreement shall be of no further force or effect; no obligation,
right, or liability shall arise hereunder; and each party shall bear
its own costs (including any legal, accounting, printing, or other
costs incurred in connection with the negotiation, preparation or
execution of this Agreement and the transactions herein contemplated).
4. Representations and Warranties of Xx. Xxxxxxxxxx. Xx. Xxxxxxxxxx
hereby
represents and warrants that effective this date and the Closing Date,
the
following statements are true and correct:
A. Authority. Xx. Xxxxxxxxxx has the full power and authority to
enter this Agreement and to carry out the transactions contemplated
by this Agreement. Xx. Xxxxxxxxxx has duly authorized the execution,
delivery and performance of this Agreement.
B. No Conflict With Other Instruments. The execution of this
Agreement will not violate or breach any document, instrument,
agreement, contract, or commitment material to the business of Xx.
Xxxxxxxxxx to which Xx. Xxxxxxxxxx is a party, and this Agreement has
been duly authorized by all appropriate and necessary action.
C. Information. The information concerning Xx. Xxxxxxxxxx as set
forth in this Agreement is complete and accurate in all material
respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made
in light of the circumstances under which they were made not
misleading.
D. Delivery of Shares. As of the Closing Date, the Royal Oasis
Shares to be delivered to ECOC shall be restricted under Rule 144 and
shall constitute valid and legally issued shares of Royal Oasis,
fully paid and non-assessable and equivalent in all respects to all
other issued and outstanding shares of Royal Oasis restricted Class A
Convertible Preferred Stock.
E. Restricted Shares. Xx. Xxxxxxxxxx is acquiring the ECOC Shares
for Xx. Xxxxxxxxxx'x own account, for investment purposes, and not
with a view to the public resale or distribution thereof. Xx.
Xxxxxxxxxx will not sell, transfer or otherwise dispose of the ECOC
Shares except in compliance with the Securities Act of 1933, as
amended (the "Act"), and is aware the ECOC Shares are "restricted
securities" as that term is defined in Rule 144 of the General Rules
and Regulations promulgated under the Act ("Rule 144").
Xx. Xxxxxxxxxx acknowledges and understands that the ECOC Shares are
unregistered in reliance on Section 4(2) of the Act and must be held
indefinitely unless they are subsequently registered under the Act or
an exemption from such registration is available.
Xx. Xxxxxxxxxx is fully aware of the applicable limitation on the
resale of the ECOC Shares. These restrictions for the most part are
set forth in Rule 144. Rule 144 permits resales of "restricted
securities" upon compliance with the requirements of such rule. If
Rule 144 is available to Xx. Xxxxxxxxxx, Xx. Xxxxxxxxxx may make only
routine sales of securities in limited amounts, in accordance with
the terms and conditions of that Rule.
F. Assets of Royal Oasis. Royal Oasis has received all of the
prior landowner's right, title and interest to 30.0 acres of land in
Elko, County, Nevada, as more particularly described in the Grant
Deed attached as Exhibit A to this Agreement.
G. Capitalization of Royal Oasis. Royal Oasis, as of the
Closing Date, shall have the following capitalization: a total of Six
Hundred Twenty Thousand (620,000) shares of Class A Convertible
Preferred stock issued and outstanding, plus One Million Five Hundred
Thousand (1,500,000) shares of common stock issued and outstanding.
5. Representations and Warranties of ECOC.
ECOC hereby represents and warrants that effective this date and the
Closing Date, the following statements are true and correct.
A. Corporate Authority. ECOC has the full corporate power and
authority to enter this Agreement and to carry out the transactions
contemplated by this Agreement. The Board of Directors of ECOC has
duly authorized the execution, delivery, and performance of this
Agreement.
B. Financial Statements. The latest 10-Q report ("ECOC
Financials") has been given to Xx. Xxxxxxxxxx prior to the Closing
Date.
C. No Conflict With Other Instruments. The execution of this
Agreement will not violate or breach any document, instrument,
agreement, contract, or commitment material to the business of ECOC
to which ECOC is a party, and this Agreement has been duly authorized
by all appropriate and necessary action.
D. Information. The information concerning ECOC as set forth in
this Agreement and in the ECOC Financials is complete and accurate in
all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the
statements made in light of the circumstances under which they were
made not misleading.
E. Delivery of Shares. As of the Closing Date, the ECOC Shares to
be delivered to Xx. Xxxxxxxxxx will be restricted under Rule 144 and
shall constitute valid and legally issued shares of ECOC, fully paid
and non-assessable and equivalent in all respects to all other issued
and outstanding shares of ECOC restricted Convertible Class A
Preferred stock.
F. Restricted Shares. ECOC is acquiring the Royal Oasis Shares for
ECOC's own account, for investment purposes, and not with a view to
the public resale or distribution thereof. ECOC will not sell,
transfer or otherwise dispose of the Royal Oasis Shares except in
compliance with the Securities Act of 1933, as amended (the "Act"),
and is aware the Royal Oasis Shares are "restricted securities" as
that term is defined in Rule 144 of the General Rules and Regulations
promulgated under the Act ("Rule 144")
ECOC acknowledges and understands that the Shares are unregistered in
reliance of Section 4(2) of the Act and must be held indefinitely
unless they are subsequently registered under the Act or an exemption
from such registration is available.
ECOC is fully aware of the applicable limitation on the resale of the
Royal Oasis Shares. These restrictions for the most part are set
forth in Rule 144. Rule 144 permits resales of "restricted
securities" upon compliance with the requirements of such rule. If
Rule 144 is available to ECOC, ECOC may make only routine sales of
securities in limited amounts, in accordance with the terms and
conditions of that Rule.
G. ECOC is fully aware of, and hereby agrees that, the land in Elko
County, Nevada which is the main asset owned by Royal Oasis is held
subject to a $1,000,000 Deed of Trust dated July 6, 2001, executed by
Royal Oasis as the Grantor and Oasis International Corp. as the
Beneficiary.
6. Closing. The Closing as herein referred to shall occur on such
date as the parties hereto may mutually agree upon, but is expected
to be on or before the Closing Date referenced in Section 2, above.
At Closing ECOC will deliver the ECOC Shares to Xx. Xxxxxxxxxx, and
Xx. Xxxxxxxxxx shall deliver the Royal Oasis Shares to ECOC.
7. Conditions Precedent to Xx. Xxxxxxxxxx'x Obligation to Close.
All obligations of Xx. Xxxxxxxxxx under this Agreement are subject to
fulfillment, prior to or as of the Closing Date, of each of the
following conditions:
A. The representations and warranties by ECOC contained in this
Agreement or in any certificate or documents delivered to Xx.
Xxxxxxxxxx pursuant to the provisions hereof shall be true in all
material respects as of the time of Closing.
B. ECOC shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing.
C. All instruments and documents delivered to Xx. Xxxxxxxxxx
pursuant to the provisions hereof shall be reasonably satisfactory to
Xx. Xxxxxxxxxx' legal counsel.
8. Conditions Precedent to ECOC's Obligation to Close. All
obligations of ECOC under this Agreement are subject to fulfillment,
prior to or as of the Closing Date, of each of the following
conditions:
A. The representations and warranties by Xx. Xxxxxxxxxx contained
in this Agreement or in any certificate or documents delivered to
ECOC pursuant to the provisions hereof shall be true in all material
respects as of the time of Closing.
B. Xx. Xxxxxxxxxx shall have performed and complied with all
covenants, agreements and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing.
C. All instruments and documents delivered to ECOC pursuant to the
provisions hereof shall be reasonably satisfactory to ECOC legal
counsel.
9. Damages and Limit of Liability. Each party shall be liable for
any material breach of its representations, warranties, and covenants
contained herein which results in a failure to perform any obligation
under this Agreement, only to the extent of the expenses incurred in
connection with such breach or failure to perform this Agreement.
Each party hereby waives the right to claim any consequential damages.
10. Nature and Survival of Representations and Warranties. All
representations, warranties and covenants made by any party in this
Agreement shall survive the Closing hereunder. All of the parties
hereto are executing and carrying out the provisions of this
Agreement in reliance solely on the representations, warranties,
covenants and agreements contained in this Agreement and not upon any
investigation which it might have made or any representation,
warranty, agreement, promise, or information, written or oral, given
by the other party (or any other person) except as specifically set
forth herein.
11. Indemnification Procedures. If any claim is made by a party
which would give rise to a right of indemnification under this
Agreement, the party seeking indemnification (Indemnified Party) will
promptly cause written notice thereof to be delivered by certified
mail, return receipt requested, to the party from whom it is sought
(Indemnifying Party). The Indemnified Party will permit the
Indemnifying Party to assume the defense of any such claim or any
litigation resulting from the claims. Counsel for the Indemnifying
Party which will conduct the defense must be approved by the
Indemnified Party (whose approval will not be unreasonable withheld),
and the Indemnified Party may participate in such defense at the
expense of the Indemnified Party. The Indemnifying Party will not in
the defense of any such claim or litigation, consent to entry of any
judgment or enter into any settlement without the written consent of
the Indemnified Party (which consent will not be unreasonably
withheld). The Indemnified Party will not, in connection with any
such claim or litigation, consent to entry of any judgment or enter
into any settlement without the written consent of the Indemnifying
Party (which consent will not be unreasonable withheld). The
Indemnified Party will cooperate fully with the Indemnifying Party
and make available to the Indemnifying Party all pertinent
information under its control relating to any such claim or
litigation. If the Indemnifying Party refuses or fails to conduct
the defense as required in this Section, after delivery of proper
notice, then the Indemnified Party may conduct such defense at the
expense of the Indemnifying Party, and the approval of the
Indemnifying Party will not be required for any settlement or entry
of judgment.
12. Default at Closing. Notwithstanding any other provision of this
Agreement, if Xx. Xxxxxxxxxx shall fail or refuse to deliver any of
the Royal Oasis Shares, or shall fail or refuse to consummate the
transaction described in this Agreement by the Closing Date, such
failure or refusal shall constitute a default by Xx. Xxxxxxxxxx, and
ECOC at its option and without prejudice to any of its other rights
against such defaulting party, may either (a) invoke any equitable
remedies to enforce performance hereunder including, without
limitation, an action or suit for specific performance, or (b)
terminate all of its obligations hereunder with respect to Xx.
Xxxxxxxxxx. Likewise, if ECOC shall fail or refuse to deliver any of
the ECOC Shares, or shall fail or refuse to consummate the
transaction described in this Agreement by the Closing Date, such
failure or refusal shall constitute a default by ECOC, and Xx.
Xxxxxxxxxx at its option and without prejudice to any of its other
rights against such defaulting party, may either (a) invoke any
equitable remedies to enforce performance hereunder including,
without limitation, an action or suit for specific performance, or
(b) terminate all of its obligations hereunder with respect to ECOC.
13. Costs and Expenses. Xx. Xxxxxxxxxx and ECOC shall bear their
own costs and expenses in the proposed exchange and transfer
described in this Agreement. Xx. Xxxxxxxxxx and ECOC have been
represented by their own attorney in this transaction, and each shall
pay the fees of its own attorney, except as may be expressly set
forth herein to the contrary.
14. Notices. Any notice under this Agreement shall be deemed to
have been sufficiently given if sent by registered or certified mail,
postage prepaid, addressed as follows:
To ECOC:
xXxx.xxx, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
To Xx. Xxxxxxxxxx:
Xxxxxxxxx Xxxxxxxxxx
0000 Xxxxx, Xxxx Xxxxxx Xxxxxx, Xxxxx 0-X
Xxxx Xxxx Xxxx, Xxxx 00000
15. Miscellaneous.
A. Further Assurances. At any time and from time to time each
party will execute such additional instruments and take such
additional actions as may be reasonably requested by the other party
to confirm or perfect title to any property transferred hereunder or
otherwise to carry out the intent and purposes of this Agreement.
B. Waiver. Any failure on the part of any party hereto to comply
with any of its obligations, agreements, or conditions hereunder may
be waived only by a writing signed by the party to whom such
compliance is owed.
C. Brokers. Neither party has employed any brokers or finders with
regard to this Agreement except as disclosed herein.
D. Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
E. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. Fax copies of signatures shall be deemed as effective as
originals for all purposes.
F. Governing Law. This Agreement was negotiated and is being
contracted for in the State of Utah, and shall be governed by the
laws of the State of Utah, regardless of any conflict-of-law
provision to the contrary. Any suit, action or legal proceeding
arising from or related to this Agreement shall be brought in a court
of competent jurisdiction in Salt Lake City, Utah, and each party
irrevocably and unconditionally consents to the jurisdiction of such
Courts in such suit, action or legal proceeding and waives any
objection to the laying of venue in, or the jurisdiction of, said
Courts.
G. Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties their
respective heirs, administrators, executors, successors, and assigns.
H. Entire Agreement. The Agreement contains the entire agreement
between the parties hereto and supersedes any and all prior
agreements, arrangements or understandings between the parties
relating to the subject matter hereof. No oral understandings,
statements, promises or inducements contrary to the terms of this
Agreement exist. No representations, warranties covenants, or
conditions, express or implied, other than as set forth here, have
been made by any party.
I. Severability. If any part of this Agreement is deemed to be
unenforceable, the balance of the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
xXxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
Xxxxxxxxx Xxxxxxxxxx, in her individual capacity
/s/ Xxxxxxxxx Xxxxxxxxxx
