Exhibit 2.1
STOCK EXCHANGE AGREEMENT
and PLAN of REORGANIZATION
This Agreement ("Agreement") is made and entered into on April 30, 2002, by
and among RENEGADE VENTURE (NEV.) CORPORATION, a Nevada corporation, as buyer
(the "Company"); XXXXXXXX AEROSPACE TECHNOLOGIES, INC., a Delaware corporation,
as the acquired company ("Acquired Company" or "Xxxxxxxx"); and certain persons
executing this Agreement in their capacity as shareholders of Xxxxxxxx (the
"Xxxxxxxx Holders").
R E C I T A L S:
A. The Xxxxxxxx Holders collectively own of record and beneficially 1,000
shares of common stock, no par value, of Xxxxxxxx (collectively, the "Xxxxxxxx
Shares"), which are all the shares of Xxxxxxxx capital stock issued and
outstanding; and
B. The Xxxxxxxx Holders desire to sell to the Company, and the Company
desires to purchase from the Xxxxxxxx Holders, all of the Xxxxxxxx Shares, on
the terms and subject to the conditions of this Agreement; and
C. The respective boards of directors of Xxxxxxxx and the Company have
approved the execution of this Agreement and performance of the parties'
respective obligations herein.
NOW THEREFORE, for and in consideration of the premises and the mutual
promises and undertakings contained herein, and for other good and valuable
consideration, and subject to the terms and conditions of this Agreement, the
parties hereto agree as follows:
1. THE EXCHANGE.
1.1 Sale and Purchase of the Xxxxxxxx Shares. On the terms and subject
to conditions of this Agreement, at the Closing (defined below), the Xxxxxxxx
Holders shall sell, transfer, assign, convey and deliver to the Company, free
and clear of all adverse claims, security interests, liens, claims and
encumbrances (other than restrictions under applicable securities laws or as
expressly agreed to herein by the Company), and the Company or its subsidiary
shall purchase, accept and acquire, all of the Xxxxxxxx Shares from the Xxxxxxxx
Holders, such purchase and sale being herein sometimes referred to as the
"Exchange." The Company shall receive good and merchantable title to the
Xxxxxxxx Shares. No cash shall be due to the Xxxxxxxx Holders. It is intended
among all the parties that the Exchange shall constitute a tax free
reorganization within the meaning of Sections 351 and 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended ("Code").
1.2 Issuance of Exchange Shares. In full payment for the Xxxxxxxx
Shares, the Company shall ratably issue and deliver to the Xxxxxxxx Holders in
proportion to their respective ownership of the Xxxxxxxx Shares, as set forth on
SCHEDULE 1.2 to this Agreement, attached hereto and incorporated herein, an
aggregate of 12,500,000 shares of the Company's common stock, $.001 par value
per share (the "Exchange Shares"), being 12,500 Exchange Shares for every
Xxxxxxxx Share conveyed to the Company.
The Exchange Shares will, when issued, be validly issued, fully paid,
and nonassessable; the sale, issuance and delivery of the Exchange Shares on the
terms herein contemplated has been authorized by all requisite corporate action
of the Company; and the Exchange Shares will not be subject to any preemptive
rights, options or similar rights on the part of any shareholder or creditor of
the Company or any other person. The Exchange Shares shall be issued to the
Xxxxxxxx Holders in the respective denominations set forth on SCHEDULE 1.2 to
this Agreement.
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1.3 Exchange Shares Not Registered. The Exchange Shares when issued
will not be registered under the Securities Act of 1933, as amended ("Act"), or
the securities laws of any state or states, but shall be issued in reliance upon
the exemptions from registration provided by Section 4(2) of the Act and/or Rule
505 or 506 of Regulation D under the Act and under analogous state securities
laws, on the grounds that the Exchange does not involve any public offering. The
Exchange Shares will be "restricted securities" as that term is defined in Rule
144(a) of the General Rules and Regulations under the Act and must be held
indefinitely, unless they are subsequently registered under the Act or an
exemption from the Act's registration requirements is available for their
resale. The prior written consent of the Company will be necessary for any
transfer of any or all of the Exchange Shares, unless the shares have been duly
registered under the Act or the transfer is made in accordance with Rule 144 or
other available exemption under the Act. Nothing in this Agreement, however,
precludes the subsequent registration of the Exchange Shares under the Act for
resale on any appropriate form. All certificates evidencing the Exchange Shares
shall, unless and until removed in accordance with law, bear a restrictive
legend substantially in the following form:
"The shares represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
and are "restricted securities" as that term is defined in Rule 144
under the Act. These shares may not be offered for sale, sold or
otherwise transferred except pursuant to an effective registration
statement under the Act, or pursuant to an exemption from registration
under the Act."
1.4 Closing. Subject to the conditions precedent set forth herein, the
consummation of the Exchange and any other transactions herein contemplated
("Closing") shall take place either at the offices of Xxxxxxx & Company, 00
Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 or by the exchange of
documents via courier, on or before May 31, 2000, which is herein referred to as
the "Closing Date". The parties may by unanimous agreement provide for one or
more postponements of the Closing.
1.5 Officers and Directors of the Company. At the Closing, the current
officers and directors of the Company shall resign as necessary, each
resignation to confirm in writing that the resigning persons do not owe and are
not owed anything by the Company, and the persons named below shall be elected
to the offices and directorships shown next to their respective names:
Name Position
---- --------
Xxx Xxxxxx DIRECTOR, Chairman of the Board
Xxxxxx X. Xxxxx DIRECTOR, President, CEO
Xxxxxx Xxxxx Chief Financial Officer
Xxxx Xxxxxx DIRECTOR
1.6 Further Assurances. Xxxxxxxx and the Xxxxxxxx Holders agree to
execute all documents and instruments and to take or to cause to be taken all
actions which the Company deems necessary or appropriate to complete the
transactions contemplated by this Agreement, whether before or after the
Closing.
2. OTHER AGREEMENTS OF THE PARTIES.
2.1 Xxxxxxxx to Obtain Audited Financial Statements. Prior to the
Closing, Xxxxxxxx (including all Xxxxxxxx subsidiaries) shall obtain the audited
financial statements called for by Item 310 of Regulation S-B of the Securities
and Exchange Commission, including the required balance sheets, and statements
of cash flows, operations and changes in stockholders' equity, together with all
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required footnotes and schedules, audited by certified public accountants who
are members of the SEC Practice Section of the AICPA. Such statements shall be
prepared in accordance with generally accepted accounting principles and
applicable SEC rules and regulations, applied on a consistent basis. However,
the Company may waive this provision if it believes that Xxxxxxxx will have no
difficulty in obtaining audited financial statements that comply with this
paragraph and filing them with the Securities and Exchange Commission within the
period specified in Item 7(a)(4) of Form 8-K.
2.2 Xxxxxxxx to Obtain Certain Transfers and Assignments. Prior to the
Closing, Xxxxxxxx shall (i) obtain assignment to it of all real property leases
between Xxxxxxxx Aviation, Inc. as tenant and the City of Tucson, Arizona or the
Tucson Airport as lessor relating to the property heretofore under lease by
Xxxxxxxx Aviation, Inc. at the Tucson, Arizona Airport; and (ii) obtain a
Federal Aviation Agency (FA) Air Agency Certificate and all other licenses and
certificates granted by the FAA and every other state, municipality or other
political subdivision and necessary to the lawful and proper operation of
Xxxxxxxx'x air agency business as now being conducted and proposed to be
conducted in the future. However, the Company may waive this provision if it
believes that Xxxxxxxx will have no difficulty in obtaining transfer to it of
all such licenses and certificates.
2.3 Acquisition of Assets. Prior to the closing, Xxxxxxxx shall
complete the acquisition of the assets of Xxxxxxxx Aviation, Inc.
2.4 The Company's Capitalization at Closing; Sale of Certain Shares.
At the Closing, the Company shall have issued and outstanding not more than
4,320,000 shares of common stock. Other than such shares, at the Closing the
Company will not without the prior written consent of the Xxxxxxxx Holders have
issued or outstanding any other shares of stock, nor any options or other rights
to purchase its common stock, nor any instrument convertible into or
exchangeable for its common stock. No shareholder of the Company will have any
preemptive right or similar right to purchase the Exchange Shares or other stock
of the Company.
2.5 Grant of Stock and Options. Upon execution of this Agreement, the
Company shall grant and issue common shares and common stock purchase options to
persons and in amounts specified by Xxxxxxxx (the "Xxxxxxxx Employee Grants").
Shares shall be issued as part of the Xxxxxxxx Employee Grants only to officers,
directors and employees of Xxxxxxxx and to persons who are agents of or
consultants to Xxxxxxxx, provided that such agents and consultants are natural
persons who render bona fide services that are not in connection with the offer
and sale of securities in a capital-raising transaction. The options shall be
exercisable at a price of $.10 per share
3. XXXXXXXX'X REPRESENTATIONS AND WARRANTIES. Xxxxxxxx hereby represents
and warrants that the following are true and correct as of the date hereof and
will be true and correct through the Closing Date as if made on that date:
(a) Organization and Standing. Xxxxxxxx is a corporation duly
organized on April 5, 2002, validly existing and in good standing under the laws
of Delaware, with all requisite power and authority to carry on the business in
which it is engaged, to own the properties and assets it owns, and is duly
qualified and licensed to do business and is in good standing in all
jurisdictions where the nature of its business makes such qualification
necessary.
(b) Capitalization. Xxxxxxxx'x authorized capital stock consists of
1,000 shares of common stock, with no par value, of which 1,000 shares have been
issued and are outstanding, and no shares of Preferred Stock are authorized. All
of the Xxxxxxxx Shares have been duly authorized, validly issued, and are fully
paid and nonassessable. Except as expressed in this section, Xxxxxxxx does not
have any other outstanding equity securities, options, warrants or similar
instruments, and is not a party to or bound by any agreement, instrument,
arrangement, contract, obligation, commitment or understanding of any character,
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whether written or oral, express or implied, whereby Xxxxxxxx is bound to issue
shares of its capital stock or any instrument or right convertible into or
exchangeable for shares of its capital stock, nor relating to the sale,
assignment, encumbrance, conveyance, transfer or delivery of any capital stock
of Xxxxxxxx of any type or class. SCHEDULE 1.2 sets forth the names and
addresses of all holders of capital stock of Xxxxxxxx and the number of shares
of common stock held by each, which is an accurate and complete list. No person
has preemptive or similar rights as to the Xxxxxxxx Shares. Xxxxxxxx will prior
to Closing provide to the Company a copy of all agreements and understandings
between Xxxxxxxx and any third parties.
(c) Subsidiaries. Xxxxxxxx currently has and at Closing will have no
subsidiaries.
(d) Litigation. There are no claims, actions, suits, proceedings or
investigations pending or threatened against or affecting the Xxxxxxxx Shares,
Xxxxxxxx or any of its properties or assets in any court or by or before any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or other instrumentality, domestic or foreign, or arbitration
tribunal or other forum which, if determined adversely to Xxxxxxxx, would
materially affect its business, prospects, properties or financial condition or
Xxxxxxxx'x right to conduct its business as being conducted or expected to be
conducted, except as disclosed on SCHEDULE 3(d). There are no judgments,
decrees, injunctions, writs, orders or other mandates outstanding to which the
Xxxxxxxx Shares or Xxxxxxxx is a party or by which it is bound or affected,
except as disclosed on SCHEDULE 3(d). Copies of material pleadings shall
accompany such schedule.
(e) Estoppel. All statements made in this Agreement, or in any Exhibit
or Schedule hereto, or in any document or certificate executed and delivered
herewith, by Xxxxxxxx are true, correct and complete as of the date of this
Agreement and will be so as of the Closing Date. All statements contained in any
certificate made by any official of Xxxxxxxx and delivered to the Company shall
be deemed representations and warranties of Xxxxxxxx.
(f) Compliance with Laws and Permits. Xxxxxxxx has complied in all
material respects with its articles of incorporation and bylaws (each as amended
to date), all applicable laws, regulations and rules, all applicable orders,
judgments, writs, decrees or injunctions of federal, state and municipal
governments or any department, agency or other instrumentality thereof, domestic
or foreign, applicable to its business or properties, and has not done or
omitted to do any act or acts which singly or in the aggregate are in violation
of any of the foregoing. Xxxxxxxx has obtained all federal, provincial and
municipal licenses and permits necessary to its properties and operations, is
not in violation of any such license or permit and has not received any
notification that any revocation or limitation thereof is pending or threatened.
(g) No Undisclosed Material Liabilities. Xxxxxxxx has not incurred any
liabilities or obligations whatever (whether direct, indirect, accrued,
contingent, absolute, secured or unsecured or otherwise), including liabilities
as guarantor or surety or otherwise for the obligations of others and tax
liabilities due or to become due, except as described in writing to the Company
or on SCHEDULE 3(g). There is no basis for any material claim against Xxxxxxxx'x
assets, which involves an amount in excess of $10,000, except as disclosed in
writing to the Company. Xxxxxxxx has no creditors whose prior consent might be
required by law to the Exchange.
(h) Material Transactions and Adverse Changes. Except as has been
disclosed in writing to the Company, Xxxxxxxx has not and as of the Closing Date
will not have: (i) suffered any materially adverse change in its assets taken as
a whole; (ii) suffered any damage or destruction in the nature of a casualty
loss to any one or more of its assets, whether or not covered by insurance,
which singly or in the aggregate are materially adverse to the properties or
business of Xxxxxxxx; (iii) made any change in any method of accounting or
accounting practice, including the revaluation of any of its assets; or (iv)
agreed in writing or otherwise to take any action prohibited in this Section.
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(i) Taxes. All income, excise, unemployment, social security,
occupational, franchise, ad valorem and other taxes, duties, assessments or
charges levied, assessed or imposed upon Xxxxxxxx by any federal, state or
municipal government or subdivision or instrumentality thereof have been duly
paid or adequately provided for, and all required tax returns or reports
concerning any such items have been duly filed. Adequate reserves have been
established for all income and other tax liabilities, except as otherwise
disclosed on SCHEDULE 3(i). Xxxxxxxx has not waived any statute of limitations
with respect to any tax liability whatever for any period prior to the date of
this Agreement or agreed to any extension of time with respect to a tax
assessment or liability. No consents have been filed by Xxxxxxxx pursuant to
Section 341(f) of the Internal Revenue Code of 1986, as amended.
(j) Contracts. Attached to this Agreement, as SCHEDULE 3(j) is a list
of all material contracts to which Xxxxxxxx is a party. With respect to each
such contract, except as disclosed in writing to the Company, Xxxxxxxx is not in
default, the contract is legal, valid, binding, in full force and effect and
enforceable in accordance with its terms, and the contract will continue after
the Closing to be legal, valid, binding, in full force and effect in accordance
with its terms. Contracts or commitments described in any other Schedule need
not be disclosed in SCHEDULE 3(j).
(k) Indebtedness to and from Affiliates. Except as disclosed on
SCHEDULE 3(k), Xxxxxxxx is not indebted to any officer, director, employee or
shareholder thereof as of the date of this Agreement, and no money or property
is owed to Xxxxxxxx by any officer, director, employee or shareholder thereof,
and none will be owed as of the Closing Date.
(l) Documents Genuine. All originals and/or copies of Xxxxxxxx'x
articles of incorporation and bylaws, each as amended to date, and all minutes
of meetings and written consents in lieu of meetings of directors and
shareholders of Xxxxxxxx, financial data, and any and all other documents,
material, data, files, or information which have been or will be furnished to
the Company, are and will be true, complete, correct and unmodified originals
and/or copies of such documents, information, data, files or material.
(m) Financial Statements and Records. Xxxxxxxx will provide to the
Company its financial statements, which shall fairly present the assets,
liabilities and financial condition of Xxxxxxxx as of the respective dates
thereof, and all shall have been prepared in conformity with generally accepted
accounting principles, consistently applied during the periods covered. For
purposes of this Agreement, such statements shall include all notes thereto.
Xxxxxxxx also will furnish to the Company copies of its other books, accounts
and records as requested.
(n) Officers and Directors Salaries. Xxxxxxxx will provide to the
Company a list of all its officers and directors, reflecting the job description
and salary of each person.
(o) Insurance. SCHEDULE 3(o) contains a list of all insurance policies
Xxxxxxxx has in effect.
(p) Authorization and Validity. The execution, delivery and
performance by Xxxxxxxx of this Agreement and any other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Xxxxxxxx and all necessary approvals of
the shareholder(s) of Xxxxxxxx will have been obtained by the Closing Date. This
Agreement and any other agreement contemplated hereby have been or will be as of
the Closing Date duly executed and delivered by Xxxxxxxx and constitutes and
will constitute legal, valid and binding obligations of Xxxxxxxx, enforceable
against it in accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
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(q) Consents; Approvals; Conflict. Except for compliance with
applicable federal and state securities laws, no consent, approval,
authorization or order of any court or governmental agency or other body is
required for Xxxxxxxx and the Xxxxxxxx Holders to consummate the Exchange.
Neither the execution, delivery, consummation or performance of this Agreement
shall conflict with, or constitute a breach of, and no prior approval is
necessary by or under, Xxxxxxxx'x articles of incorporation, bylaws or any note,
mortgage, indenture, deed of trust, lease, obligation, or other agreement or
instrument to which Xxxxxxxx is a party.
(r) Intellectual Property. Attached to this Agreement, as SCHEDULE
3(r) is a description of all registered trademarks, trademarks, service marks,
copyrights, trade names and licenses, owned or held by Xxxxxxxx and applications
pending therefor. Copies of each such right or application shall be furnished to
the Company. Xxxxxxxx has not interfered with, infringed upon, misappropriated,
or otherwise come into conflict with any patent, trademark, trade name, service
xxxx or copyright belonging to any third person, and Xxxxxxxx has never received
any charge, complaint, claim, demand or notice alleging any such interference,
infringement or misappropriation. Xxxxxxxx owns or hold adequate licenses or
other rights to use all patents, trademarks, trade names, service marks and
copyrights used in its business as now conducted, and such use does not conflict
with, infringe upon or violate the rights of any third party in a manner which
might have a materially adverse effect upon Xxxxxxxx.
(s) Restrictive Covenants. Prior to the consummation of the Exchange,
Xxxxxxxx shall conduct its business in the ordinary and usual course without
unusual commitments and in compliance with all applicable laws, rules, and
regulations. Furthermore, Xxxxxxxx will not, without the prior written consent
of the Company, (i) make any changes in its capital structure, (ii) incur any
liability or obligation other than current liabilities incurred in the ordinary
and usual course of business, (iii) incur any material indebtedness for borrowed
money, (iv) make any loans or advances other than in the ordinary and usual
course of business, (v) declare or pay any dividend or make any other
distribution with respect to its capital stock, (vi) issue, sell, or deliver or
purchase or otherwise acquire for value any of its stock or other securities, or
(vii) mortgage, pledge, or subject to encumbrance any of its assets or
properties or sell or transfer any of its assets or properties, except in the
ordinary and usual course of business.
(t) Disclaimer of Further Warranties; Etc. Except as expressly set
forth in this Agreement and the Schedules and Exhibits hereto, Xxxxxxxx has made
no other representations or warranties to Company in connection with the
Exchange. Xxxxxxxx'x decision to enter into the Exchange is based upon its own
independent judgment and investigation and not on any representations and
warranties of the Company other than those expressly stated in this Agreement
and in the Schedules and Exhibits hereto.
4. REPRESENTATIONS AND WARRANTIES OF THE XXXXXXXX HOLDERS. The Xxxxxxxx
Holders each represent and warrant to the Company that the following are true
and correct as of the date hereof and will be true and correct through the
Closing Date as if made on that date:
(a) Each Xxxxxxxx Holder owns of record and beneficially all the
Xxxxxxxx Shares respectively shown next to his, her or its name on SCHEDULE 1.2
to this Agreement; and his, her or its Xxxxxxxx Shares are free and clear of all
liens, claims, rights or other encumbrances whatever and of all options and
similar rights of third persons; and no person has or will have any right in and
to such shares except as are created by force of law under any marital,
community property or similar rights. No third party has or at Closing will have
any right of first refusal, pre-emptive right, option or similar right to
acquire any of the Xxxxxxxx Shares except as disclosed to the Company in writing
prior to the Closing. Each Xxxxxxxx Holder represents and warrants that he, she
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or it is not now insolvent and will not be insolvent after selling and
delivering the Xxxxxxxx Shares to the Company on the terms of this Agreement,
and each Xxxxxxxx Holder is receiving new consideration at least equal to the
full and fair value of the Xxxxxxxx Shares being sold. Each Xxxxxxxx Holder has
the full right, power and legal capacity to enter into this Agreement and sell
and deliver the Xxxxxxxx Shares to the Company.
(b) The Xxxxxxxx Holders understand and acknowledge that the Company
is not profitable and does not have full-time or professional management, and
that the officers and directors of the Company after the Closing will
principally consist of the current officers and directors of or persons
designated by Xxxxxxxx. Each Xxxxxxxx Holder recognizes that the Exchange Shares
are speculative and involve a high degree of risk, and that the prospects and
future success of the Company depend principally upon the Xxxxxxxx Holders.
(c) Each Xxxxxxxx Holder acknowledges and agrees that he, she or it or
his, her or its representatives have been furnished with or offered
substantially the same kind of information regarding the Company and its
business, assets, financial condition and plan of operation as would be
contained in a registration statement and included prospectus prepared in
connection with a public offering of the Exchange Shares. Each Xxxxxxxx Holder
further represents that he, she or it has had an opportunity to ask questions of
and receive answers from the Company regarding the Company and its business,
assets, results of operations, financial condition and plan of operation and the
terms and conditions of the issuance of the Exchange Shares.
(d) In connection with the issuance and delivery of the Exchange
Shares, each of the Xxxxxxxx Holders understands and acknowledges that the
Exchange Shares have not been registered under the Act or any state laws in
reliance upon exemptions from registration and that such shares will be
restricted and subject to significant restrictions on transfer, as described in
Section 1.3 of this Agreement. Each Xxxxxxxx Holder is acquiring the Exchange
Shares for his, her or its own account, and not for the account of any other
person and not for distribution, assignment or resale to others, or for pledge
or hypothecation, and no other person has or is intended to have a direct or
indirect ownership or contractual interest in the Exchange Shares except as may
exist or arise under marital property laws or otherwise by operation of law.
(e) Each of the Xxxxxxxx Holders, alone or together with his, her or
its respective adviser(s), has such knowledge and experience in financial, tax
and business matters as to enable Xxxxxxxx Holder to utilize the information
made available by the Company, in connection with the Exchange and issuance of
the Exchange Shares, to evaluate the merits and risks of acquiring the Exchange
Shares and to make an informed investment decision with respect thereto.
(f) All information which each Xxxxxxxx Holder has provided or will
provide to the Company is or will be correct and complete as of the date
furnished to the Company, and, if there should be any material change in such
information prior to the Closing as to a Xxxxxxxx Holder, that Xxxxxxxx Holder
will immediately provide the Company with such information.
(g) No Xxxxxxxx Holder was solicited by the Company by any form of
general solicitation or general advertising, including but not limited to any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
made available over telephone lines by any information service, or any seminar
or meeting whose attendees had been invited by any means of general solicitation
or general advertising.
(h) Except as expressly set forth in this Agreement and the Schedules
and Exhibits hereto, the Company has not made any representation or warranty to
any Xxxxxxxx Holder in connection with this Agreement. Each Xxxxxxxx Holder's
decision to enter into the Exchange is based upon his, her or its own
independent judgment and investigation and not on any representations and
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warranties of the Company other than those expressly stated in this Agreement
and in the Schedules and Exhibits hereto.
(i) To the best of the knowledge of each Xxxxxxxx Holder, all of the
representations and warranties of Xxxxxxxx set forth in this Agreement are
accurate and true.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Unless specifically
stated otherwise, the Company represents and warrants to the other parties that
the following are true and correct as of the date hereof and will be true and
correct through the Closing Date as if made on that date.
(a) Organization and Good Standing; Authority. The Company is and on
the Closing Date will be duly organized, validly existing and in good standing
under the laws of the State of Nevada, entitled to own its properties and
operate its business as now being conducted. The Company has corporate power and
authority to enter into this Agreement and the related agreements contemplated
herein, to executive and deliver and perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
(b) Authorized Capitalization. As provided in its Articles of
Incorporation, the authorized capital stock of the Company consists of
50,000,000 shares of common stock, $.001 par value, of which 4,320,000 are
outstanding, and 5,000,000 shares of undesignated preferred stock, $.001 par
value, none of which are outstanding.
(c) Outstanding Options, Warrants or Other Rights. Except as expressly
set forth, herein, the Company does not have outstanding any option, warrant or
similar instrument and is not a party to or bound by any agreement, instrument,
arrangement, contract, obligation, commitment or understanding of any character,
whether written or oral, express or implied, whereby the Company is bound to
issue shares of its capital stock or any instrument or right convertible into or
exchangeable for shares of its capital stock, nor relating to the sale,
assignment, encumbrance, conveyance, transfer or delivery of any capital stock
of the Company of any type or class. The Company shall provide to Xxxxxxxx a
list of all holders of the Company's capital stock and stock options, the number
of shares held by each and the number of each certificate held, duly certified
by the Secretary or Transfer Agent of the Company.
(d) Subsidiaries. The Company has one subsidiary, Xxxxxxxxx
Softmachine Corporation, a Colorado corporation, which is wholly owned.
Xxxxxxxxx is a corporation which holds a license to use certain data derived
from the securities markets, which is its only asset. Xxxxxxxxx does not
currently have any revenues or liabilities, and the Company has not assumed any
debt or other obligation in connection with Xxxxxxxxx.
(e) Documents Genuine. All originals and/or copies of the Company's
articles of incorporation and bylaws, each as amended to date, and all minutes
of meetings and written consents in lieu of meetings of shareholders, directors
and committees of directors of the Company, financial data, and any and all
other documents, material, data, files, or information which have been or will
be furnished to Xxxxxxxx, are and will be true, complete, correct and unmodified
originals and/or copies of such documents, information, data, files or material.
(f) Litigation. There are no claims, actions, suits, proceedings or
investigations pending or threatened against or affecting the Company in any
court or by or before any federal, state, municipal or other governmental
department, commission, board, bureau, agency or other instrumentality, domestic
or foreign, or arbitration tribunal or other forum. There are no judgments,
decrees, injunctions, writs, orders or other mandates outstanding to which the
Company is a party or by which it is bound or affected.
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(g) Compensation Plans. Except as described below, the Company has not
authorized and does not have in effect any stock options or stock purchase
plans, dividend reinvestment plans or similar plans pursuant to which any person
is entitled to acquire capital stock of the Company or any securities
convertible into or exchangeable for its capital stock. The Company has
delivered to Xxxxxxxx a copy of each plan and grant of common shares and options
described below. No shares will be awarded or issued pursuant to such plans, or
otherwise, without the prior written authorization of Xxxxxxxx.
(i) The Company has in effect a 1997 Compensatory Stock Option
Plan, covering 2,000,000 shares of the Company's common stock. Options
have been granted covering a total of 1,000,000 shares under this
plan. No other options will be granted under this plan prior to
Closing except as herein expressly provided for, without Xxxxxxxx'x
prior written consent.
(ii) The Company has in effect a 1997 Employee Stock Compensation
Plan covering 1,000,000 of the Company's common shares, pursuant to
which the Company may award shares of common stock to persons defined
therein as employees. The Company has not awarded any shares under
this plan, and no shares will be awarded under this plan prior to
Closing except as herein expressly provided for, without Xxxxxxxx'x
prior written consent.
(iii) The Company has in effect a 2002 Compensatory Stock Option
Plan, covering 3,000,000 shares of the Company's common stock. No
options have been granted under this plan and none will be granted
prior to Closing except as herein expressly provided for, without
Xxxxxxxx'x prior written consent.
(h) Authorization and Validity. The execution, delivery and
performance by the Company of this Agreement and any other agreements
contemplated hereby, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by the Company. This Agreement and
any other agreement contemplated hereby have been or will be as of the Closing
Date duly executed and delivered by the Company and constitute and will
constitute legal, valid and binding obligations of the Company, enforceable
against it in accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
(i) Financial Statements. The Company will provide to Xxxxxxxx all of
the Company's financial books and records and such audited and unaudited
financial statements of the Company, back to inception, as exist and as Xxxxxxxx
requests. All such statements shall fairly present the assets, liabilities and
financial condition of the Company as of the respective dates thereof, and all
shall have been prepared in conformity with generally accepted accounting
principles, consistently applied during the periods covered. For purposes of
this Agreement, such statements shall include all notes thereto.
(j) No Undisclosed Material Liabilities. The Company has not incurred
any liabilities or obligations whatever (whether direct, indirect, accrued,
contingent, absolute, secured or unsecured or otherwise), which singly or in the
aggregate are material to it, except as disclosed in the Company's financial
statements or otherwise disclosed in writing to Xxxxxxxx.
(k) Taxes. All income, excise, unemployment, social security,
occupational, franchise and other taxes, duties, assessments or charges levied,
assessed or imposed upon the Company by the United States or by any state or
municipal government or subdivision or instrumentality thereof have been duly
paid or adequately provided for, and all required tax returns or reports
concerning any such items have been duly filed or will be so filed.
9
HAMILTON________________ Company________________
(l) Indebtedness to or from Affiliates. The Company is not and will
not be indebted to any officer, director, employee or shareholder thereof as of
the Closing Date. No money or property is owed to the Company by any officer,
director, employee or shareholder thereof, and none will be owed as of the
Closing.
(m) Insurance. The Company does not now have any insurance policy in
effect and will not obtain any insurance policy prior to Closing.
(n) Books, Records and Accounts. Except for the minute book and
accounting and corporate records of the Company furnished to Xxxxxxxx, there are
no other books, records or accounts of the Company. Xxxxxxxx shall have the
right to review and obtain all records, books and accounts of the Company.
(o) Estoppel. All statements made herein, or in any Exhibit or
Schedule hereto, or in any document or certificate executed and delivered
herewith by the Company are true, correct and complete as of the date of this
Agreement and will be so as of the Closing. All statements contained in any
certificate made by any officer or director of the Company and delivered to
Xxxxxxxx shall be deemed representations and warranties of the Company.
(p) Consents; Approvals; Conflict. No consent, approval, authorization
or order of any court or governmental agency or other body is required for the
Company to execute and perform its obligations under this Agreement. Neither the
execution, delivery, consummation or performance of this Agreement shall
conflict with, constitute a breach of the Company's articles of incorporation
and bylaws, as amended to date, or any note, mortgage, indenture, deed of trust
or other agreement of instrument to which the Company is a party or by which it
is bound nor, to the best of the Company's knowledge and belief, any existing
law, rule, regulation, or any decree of any court or governmental department,
agency, commission, board or bureau, domestic or foreign, having jurisdiction
over the Company.
(q) Restrictive Covenants. Prior to the consummation of the proposed
Exchange, the Company shall not engage in any business or activity other than
attempting to consummate the Exchange. Furthermore, the Company will not,
without the prior written authorization of Xxxxxxxx, (i) make any changes in its
capital structure, (ii) incur any liability or obligation other than current
liabilities incurred in the ordinary and usual course, (iii) declare or pay any
dividend or make any other distribution with respect to its capital stock, (iv)
issue, sell, or deliver or purchase or otherwise acquire for value any of its
stock or other securities, (v) make any investment of a capital nature, or (vi)
enter into any contract, agreement, or other commitment which is material to the
Company.
(r) Disclaimer of Further Warranties; Etc. Except as expressly set
forth in this Agreement and the Schedules and Exhibits hereto, Xxxxxxxx has made
no other representation or warranty to the Company in connection with the
Exchange. The Company's decision to enter into the Exchange is based upon the
Company's own independent judgment and investigation and not on any
representations and warranties of Xxxxxxxx other than those expressly stated in
this Agreement and in the Schedules and Exhibits hereto.
6. CONDITIONS TO OBLIGATIONS OF THE PARTIES; DELIVERIES. All obligations of
the parties under this Agreement are subject to the accuracy and truthfulness of
all representations of the other parties, and the fulfillment, prior to the
Closing, of all conditions precedent and to performance of all covenants and
agreements and completion of all deliveries contemplated herein, unless
specifically waived in writing by the party entitled to performance or to demand
fulfillment of the covenant or delivery of the documents.
6.1 Documents to be Delivered to the Company. At the Closing, the
following documents shall be delivered to the Company by Xxxxxxxx or the
Xxxxxxxx Holders, as the case may be, which documents shall be satisfactory in
form and content to the Company's counsel:
10
HAMILTON________________ Company________________
(a) Certificates executed by the chief executive officer and the
chief financial or accounting officer of Xxxxxxxx, dated the
Closing Date, certifying that the representations and warranties
of Xxxxxxxx contained in this Agreement and the information set
forth in all Schedules and Exhibits of Xxxxxxxx hereto are then
true and correct and that Xxxxxxxx has complied with all
agreements and conditions required by this Agreement and all
related agreements to be performed or complied with by Xxxxxxxx.
(b) A copy of the directors' resolution or the minutes of the meeting
of the directors of Xxxxxxxx approving the execution and
performance of this Agreement.
(c) All certificates evidencing the Xxxxxxxx Shares, each endorsed on
the reverse side for transfer or accompanied by a signed stock
power in form satisfactory to the Company.
(d) All Schedules, properly filled out, and all documents and
Exhibits called for in this Agreement.
(e) Current Bylaws.
(f) Articles of Incorporation.
(g) All amendments and restatement to Articles of Incorporation.
(h) Minutes from all Board of Directors Meetings and Shareholders
Meetings from inception.
(i) Certified Shareholder List.
6.2 Documents to be Delivered to Xxxxxxxx and the Xxxxxxxx Holders.
Prior to the Closing, and as a condition precedent to Closing, each of the
following documents shall be delivered to Xxxxxxxx and the Xxxxxxxx Holders by
the Company, and the documents must be satisfactory in form and content to
Xxxxxxxx Holders, Xxxxxxxx and its counsel:
(a) Current Company Bylaws.
(b) Articles of Incorporation.
(c) All amendments and restatements to Articles of Incorporation.
(d) Minutes from all Board of Directors Meetings and Shareholders
Meetings from inception.
(e) All State and Federal Tax Returns filed from 1998 to present
(including extensions).
(f) Shareholder List.
(g) To the Xxxxxxxx Holders, certificates evidencing the Exchange
Shares in the proper denominations.
(h) To Xxxxxxxx, a certificate executed by the Company dated the
Closing Date, certifying that the representations and warranties
of the Company contained in this Agreement and the information
set forth in all Schedules and Exhibits of the Company are then
true and correct and that the Company has complied with all
agreements and conditions required by this Agreement to be
performed or complied with by it.
11
HAMILTON________________ Company________________
(i) To Xxxxxxxx, a copy of the directors' resolution or the minutes
of the meeting of the directors of the Company approving the
execution and performance of this Agreement.
(j) All Schedules, properly filled out, and all Exhibits called for
in this Agreement.
6.3 Conditions Precedent. The obligations of the parties under this
Agreement are subject to the satisfaction of the following conditions (in
addition to other conditions, covenants and terms of this Agreement), unless
waived in writing, on or prior to the Closing:
(a) Representations and Warranties Correct. The representations and
warranties of every party contained in this Agreement shall be in all material
respects true and correct on and as of the Closing Date as if made on such date.
(b) Compliance. The Company, Xxxxxxxx and the Xxxxxxxx Holders each
shall have performed all covenants and agreements, satisfied all conditions and
complied with all other terms and provisions of this Agreement to be
respectively performed, satisfied or complied with by it as of the Closing Date.
(c) No Errors or Misrepresentations. The Company shall not have
discovered any material error, misstatement or omission in or failure of any
representation or warranty made by any of the other parties, and Xxxxxxxx shall
not have discovered any material error, misstatement or omission in or failure
of any representation or warranty made by the Company.
(d) Due Diligence Examination. The Company and Xxxxxxxx shall have
completed their due diligence examination of the other party to their
satisfaction, including all books, records, contracts, documents listed in
paragraph 6.2 and other documents and all financial affairs of the other party.
(e) Legal Matters. All legal matters in connection with this Agreement
and the consummation of all transactions herein contemplated, and all documents
and instruments delivered in connection herewith shall be reasonably
satisfactory in form to each party.
(f) No Litigation or Proceedings. No injunction or restraining order
of any federal or state court is in effect which prevents the purchase of the
Assets or issuance and delivery of the Exchange Shares, and no lawsuit or other
proceeding has been filed by any person by the Closing Date contesting or
attempting to enjoin either action, and no action is taken and no law is passed
after the date of this Agreement which prevents the Exchange.
7. OTHER COVENANTS OF THE PARTIES. The parties agree that, prior to the
Closing:
(a) Effectuation of this Agreement. The parties hereto each will use
their best efforts to cause this Agreement and all related agreements to become
effective, and all transactions herein and therein contemplated to be
consummated, in accordance with its and their terms, to obtain all required
consents, waivers and authorizations of governmental entities and other third
parties, to make all filings and give all notices to those regulatory
authorities or other third parties which may be necessary or reasonably required
in order to effect the transactions contemplated in this Agreement, and to
comply with all federal, local and state laws, rules and regulations as may be
applicable to the contemplated transactions.
(b) Restriction on Action. The parties each agree that he or it will
not do any thing or act prohibited by this Agreement or any related agreement,
or fail to do any thing or act which he or it has undertaken to do in this
Agreement or any related agreement.
12
HAMILTON________________ Company________________
(c) Access and Information. To the extent each party deems necessary
for purposes of this Agreement and the transactions contemplated hereby,
Xxxxxxxx and the Company each shall permit the other, its counsel, accountants
and other representatives to have full access, upon reasonable notice and during
regular business hours, throughout the period prior to Closing, to its
equipment, assets, properties, books and records, and will cause to be furnished
to the requesting party and its representatives during such period all
information it or its representatives may reasonably request.
(d) Public Release of Information. The Company shall not issue any
press release or make any other public release of information concerning the
Exchange or this Agreement without the prior written consent of Xxxxxxxx, and
neither Xxxxxxxx nor any Xxxxxxxx Holder shall issue any press release or make
any other public release of information concerning the Exchange or this
Agreement without the Company's prior written consent.
(e) SEC Filings. Xxxxxxxx and the Xxxxxxxx Holders acknowledge and
agree that all filings with the SEC required by SEC rules shall be done within
the required time limits. The Company, Xxxxxxxx and the Xxxxxxxx Holders will
participate in the preparation of all such filings.
8. INDEMNIFICATION.
8.1 Indemnification by Xxxxxxxx. Xxxxxxxx and the Xxxxxxxx Holders
jointly and severally agree to defend, indemnify and hold the Company, any
subsidiary or affiliate thereof, and its respective successors, officers,
directors and controlling persons (the "Indemnified Company Group") harmless
from and against any and all losses, liabilities, damages, costs or expenses
(including reasonable attorney's fees, penalties and interest) payable to or for
the benefit of, or asserted by, any party resulting from, arising out of, or
incurred as a result of (a) the breach of any representation made by Xxxxxxxx or
a Xxxxxxxx Holder herein or in accordance herewith; (b) the breach of any
warranty or covenant made by Xxxxxxxx or a Xxxxxxxx Holder herein or in
accordance herewith; or (c) any claim, whether made before or after the date of
this Agreement, or any litigation, proceeding or governmental investigation,
whether commenced before or after the date of this Agreement, arising out of the
business of Xxxxxxxx or arising out of any act or occurrence prior to, or any
state of facts existing as of the Closing.
8.2 Indemnification by the Company. The Company agrees to defend,
indemnify and hold Xxxxxxxx, any subsidiary or affiliate thereof, and its
respective successors, officers, directors and controlling persons, including
the Xxxxxxxx Holders (the "Indemnified Xxxxxxxx Group") harmless from and
against any and all losses, liabilities, damages, costs or expenses (including
reasonable attorney's fees, penalties and interest) payable to or for the
benefit of, or asserted by, any party resulting from, arising out of, or
incurred as a result of (a) the breach of any representation made by the Company
herein or in accordance herewith; (b) the breach of any warranty or covenant
made by the Company herein or in accordance herewith; or (c) any claim,
litigation, proceeding or governmental investigation, whether commenced before
or after the date of this Agreement, arising out of any act or occurrence prior
to, or any state of facts existing as of the Closing.
8.3 Survival of Covenants and Warranties. The representations,
warranties, covenants and agreements made by Xxxxxxxx on the one hand, and the
Company on the other hand, shall survive the Closing and shall be fully
enforceable at law or in equity against such other party and its successors and
assigns for a period of one year after the Closing Date. Any investigation at
any time made by or on behalf of (or any disclosure to) any party hereto shall
not diminish in any respect whatsoever its right to rely on the representations
and warranties of the other party hereto.
13
HAMILTON________________ Company________________
8.4 Notice of Claims. The Company and Xxxxxxxx each agree to give
prompt written notice to the other of any claim against the party giving notice
which might give rise to a claim by it against the other party hereto based upon
the indemnity provisions contained herein, stating the nature and basis of the
claim and the actual or estimated amount thereof; provided, however, that
failure to give such notice will not affect the obligation of the indemnifying
party to provide indemnification in accordance with the provisions of this
Section 10 unless, and only to the extent that, such indemnifying party is
actually prejudiced thereby. In the event that any action, suit or proceeding is
brought against any member of the Indemnified Xxxxxxxx Group or the Indemnified
Company Group with respect to which any party hereto may have liability under
the indemnification provisions contained herein, the indemnifying party shall
have the right, at its sole cost and expense, to defend such action in the name
of or on behalf of the indemnified party and, in connection with any such
action, suit or proceeding, the parties hereto agree to render to each other
such assistance as may reasonably be required in order to ensure the proper and
adequate defense of any such action, suit or proceeding; provided, however, that
an indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation of
such indemnified party by the counsel retained by the indemnifying party would
be inappropriate because of actual or potential differing interests between such
indemnified party and any other party represented by such counsel. Neither party
hereto shall make any settlement of any claim which might give rise to liability
of the other party under the indemnification provisions contained herein without
the written consent of such other party, which consent such other party
covenants shall not be unreasonably withheld.
9. TERMINATION OF THIS AGREEMENT.
9.1 Grounds for Termination. This Agreement shall terminate:
(a) By mutual written consent of all parties;
(b) By any party, if:
(i) all the conditions precedent to its respective obligations
hereunder have not been satisfied or waived prior to the Closing Date,
as it may be accelerated or extended, or if any Xxxxxxxx Holder
refuses to execute this Agreement;
(ii) any party shall have defaulted or refused to perform in any
material respect under this Agreement, or if the Company or Xxxxxxxx
should have reasonable cause to believe there has been a material
representation concerning, or failure or breach of, any representation
or warranty by the other party, or if it appears that either Xxxxxxxx
or the Company has committed any unlawful acts affecting the other
party and such default or failure has not been cured within twenty
(20) days after written request;
(iii) the transactions contemplated in this Agreement and related
agreements have not been consummated on the Closing Date, as it may be
mutually accelerated or extended, or
(iv) either the Company or Xxxxxxxx shall reasonably determine
that the transactions contemplated in this Agreement have become
inadvisable by reason of the institution or threat by any federal,
state or municipal governmental authorities or by other person
whatever of a formal investigation or of any action, suit or
proceeding of any kind against either or both parties which in one
party's reasonable belief is material in light of the other party's
business, prospects, properties or financial condition;
9.2 Manner of Termination. Any termination of this Agreement shall be
made in accordance with the above listed grounds and, if terminated by Xxxxxxxx
or the Company, shall be accompanied by a copy of the resolution of the
14
HAMILTON________________ Company________________
terminating party's board of directors. Written notice of termination shall be
given to the other party as required in this Agreement as promptly as is
practical under the circumstances. Upon a party's receipt of such termination
notice, this Agreement shall terminate and the transactions herein contemplated
shall be abandoned without further action by the parties.
9.3 Survival of Confidentiality Provisions. Upon termination of this
Agreement for any reason, (i) the covenants of the parties concerning the
confidentiality and proprietary nature of all documents and other information
furnished hereunder shall remain in force except as to information which has
otherwise become public knowledge, and (ii) each party shall promptly return all
documents received from the other party in connection with this Agreement. This
Section constitutes a mutual covenant of the parties, and either may judicially
enforce it.
10. CONFIDENTIALITY PROVISIONS. In connection with the proposed Exchange,
the Company or Xxxxxxxx may, from time to time, furnish the other party and/or
its representatives with certain Confidential Information (as defined below). As
used in this Section, the terms "Company", "Xxxxxxxx" and "Xxxxxxxx Holders"
includes their respective advisers, representatives, employees and agents and
all successors and assigns. In consideration of the Company furnishing (prior to
and subsequent to the date hereof) such Confidential Information, Xxxxxxxx and
the Xxxxxxxx Holders agree as follows:
(a) Confidential Information. Confidential Information means any and
all memoranda, manuals, data, reports, interpretations, forecasts, market plans,
market analyses, and records containing or otherwise reflecting information
concerning the Company which is not available to the general public and which
the Company later provides or has previously provided to Xxxxxxxx or any
Xxxxxxxx Holder, together with analyses, compilations, forecasts, studies or
other documents prepared by the Company, its agents, representatives (including
lawyers, accountants and financial advisors) or employees which contain or
otherwise reflect the foregoing described information, as well as any oral
communications with respect to the foregoing.
The term Confidential Information shall not include any information
which (i) is or becomes generally available to the public other than as a result
of a disclosure by Xxxxxxxx or a Xxxxxxxx Holder, or (ii) become available to
Xxxxxxxx or a Xxxxxxxx Holder on a non-confidential basis from a source other
than the Company or its agents which is not known to Xxxxxxxx or the Xxxxxxxx
Holder to be prohibited from disclosing such Confidential Information to it by a
legal, contractual or fiduciary obligation to the Company.
(b) Confidentiality. The Confidential Information will be kept
confidential and shall not, without the prior written consent of the Company, be
disclosed by Xxxxxxxx or a Xxxxxxxx Holder, other than in connection with this
Agreement. Xxxxxxxx and the Xxxxxxxx Holders agree to reveal the Confidential
Information only to their representatives and employees who need to know the
Confidential Information for the purposes described herein, who are informed by
Xxxxxxxx or the Xxxxxxxx Holder, as the case may be, of the confidential nature
of the Confidential Information and who shall agree in writing to act in
accordance with the terms and conditions of this Confidential Agreement.
Xxxxxxxx and the Xxxxxxxx Holders shall be liable for any breach of this
Confidentiality provision by its or his respective representatives or employees.
Without the prior written consent of the Company, except as required
by law, Xxxxxxxx and the Xxxxxxxx Holders will not disclose to any person the
fact that the Confidential Information has been made available, nor make any
announcement that discussions or negotiations are taking place or have taken
place concerning the matters set forth in this Agreement or any of the terms,
conditions or other facts with respect to any transaction the Company is
negotiating, including the status thereof.
15
HAMILTON________________ Company________________
(c) Return of Confidential Information. Promptly upon completion or
termination of this Agreement, all copies of the Confidential Information,
except for that portion of the Confidential Information that consists of
analyses, compilations, forecasts, studies or other documents prepared by
Xxxxxxxx or a Xxxxxxxx Holder, will be returned to the Company. That portion of
the Confidential Information that consists of analyses, compilations, forecasts,
studies or other documents prepared by Xxxxxxxx or a Xxxxxxxx Holder and oral
Confidential Information may be retained by Xxxxxxxx or the Xxxxxxxx Holder and
kept confidential and subject to the terms of this Confidentiality Agreement or
destroyed upon the request of the Company. Such destruction will be confirmed in
writing to the Company.
(d) Accuracy of Confidential Information. Xxxxxxxx and the Xxxxxxxx
Holders acknowledge that the Company makes no express or implied representation
or warranty as to the accuracy or completeness of the Confidential Information,
and the Company expressly disclaims any and all liability that may be based on
the Confidential Information, errors therein or omissions therefrom.
(e) Protective Order. In the event that Xxxxxxxx or a Xxxxxxxx Holder
or anyone to whom it or he transmits the Confidential Information becomes
legally compelled to disclose any of the Confidential Information or any
information relating to Xxxxxxxx'x or a Xxxxxxxx Holder's opinion, judgment or
recommendations concerning the Company as developed from the Confidential
Information, Xxxxxxxx or the Xxxxxxxx Holder, as the case may be, will provide
the Company with prompt notice so that the Company may seek a protective order
or other appropriate remedy and/or waive compliance with the provisions of this
Confidentiality Agreement. In the event that such waiver or such protective
order or other remedy is not obtained, Xxxxxxxx or the affected Xxxxxxxx
Holder(s) will furnish only that portion of the Confidential Information which
it or they are advised by written opinion of legal counsel is legally required,
and will exercise its best efforts to obtain reliable assurance that
confidential treatment will be accorded the Confidential Information. Neither
Xxxxxxxx nor any Xxxxxxxx Holder shall oppose action by the Company to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information.
(f) Reciprocal Nature of this Covenant. In the event that Xxxxxxxx or
a Xxxxxxxx Holder provides Confidential Information to the Company, then the
Company shall have the same obligation as Xxxxxxxx and the Xxxxxxxx Holders in
this Section, and Xxxxxxxx or such Xxxxxxxx Holder(s) shall have the same rights
and remedies as the Company set forth in this Section with respect to such
Confidential Information.
11. MISCELLANEOUS PROVISIONS.
(a) Assignment. Neither this Agreement nor any right created hereby or
in any agreement entered into in connection with the transactions contemplated
hereby shall be assignable by any party hereto without the written consent of
the party not seeking assignment, except that the Company may direct such an
assignment to a wholly owned subsidiary corporation. No such assignment shall
relieve the assignor of any obligations created under this Agreement.
(b) Parties in Interest; No Third Party Beneficiaries. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and assigns. Neither this Agreement nor
any other agreement contemplated hereby shall be deemed to confer upon any
person not a party hereto or thereto any rights or remedies hereunder or
thereunder, except as expressly set forth in this Agreement.
(c) Entire Agreement. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
16
HAMILTON________________ Company________________
(d) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Further, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible and be legal,
valid and enforceable.
(e) Survival of Representations, Warranties and Covenants. The
representations, warranties and covenants of all parties contained herein and
all statements contained in any certificate, exhibit or other instrument
delivered by or on behalf of the Company, Xxxxxxxx or a Xxxxxxxx Holder, as the
case may be, shall, notwithstanding any provision in this Agreement to the
contrary, shall survive the Closing for a period of two years.
(f) Interpretation. This Agreement shall be governed by and construed
under the laws of the State of Colorado and shall be interpreted as if all
parties participated equally in its drafting. The captions in this Agreement are
for convenience of reference only and shall not limit or otherwise affect any of
the terms or provisions hereof. Whenever the context requires, the gender of all
words used herein shall include the masculine, feminine and neuter, and the
number of all words shall include the singular and plural. Use of the words
"herein", "hereof", "hereto" and the like in this Agreement shall be construed
as references to this Agreement as a whole and not to any particular provision
in this Agreement, unless otherwise noted.
(g) Notice. Any notice or communication hereunder or in any agreement
entered into in connection with the transactions contemplated hereby must be in
writing and given by depositing the same in the United States mail, addressed to
the party to be notified, postage prepaid and registered or certified with
return receipt requested, by telefax transmission or by delivery by use of a
messenger which regularly retains its delivery receipts. Such notice shall be
deemed received on the date on which it is delivered to the addressee. For
purposes of notice, the addresses of the parties shall be, if to a Xxxxxxxx
Holder, sent to Xxxxxxxx for forwarding, and:
If to Xxxxxxxx Inc.: 000 Xxxx Xxxxx Xxxxxx
-------------------
Xxxxxxxx Xxxx, Xxxxxxxx 00000
ATTN: Xx. Xxxxxx X. Xxxxx, Pres.
If to the Xxxxxxxx Holders: to the respective addresses shown on Schedule 1.2
--------------------------
If to the Company: Xx. Xxxxx X. Xxxxxx
-----------------
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
(h) No Finders. Each party represents and warrants to the others and
agrees that it has not employed or engaged, and will not employ or engage, any
person as a finder or broker in connection with the transactions contemplated
herein, and that no person is entitled to compensation as a finder or broker.
Each party hereby indemnifies the other parties and holds the other parties
harmless from and against any claims of any third persons claiming to have acted
as a finder or broker in connection with the transactions herein contemplated,
and such indemnity shall include all expenses, costs and damages arising from or
related to such claims, including reasonable attorneys fees.
(i) Expenses. Except as otherwise provided in this letter, the parties
shall each bear their own respective fees and expenses incurred in connection
with the transactions contemplated herein.
17
HAMILTON________________ Company________________
(j) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Execution and delivery of
this Agreement by exchange of facsimile copies bearing facsimile signature of a
party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
(k) Prevailing Party Clause. In the event of any litigation or
proceeding arising as a result of the breach of this Agreement or the failure to
perform hereunder, or failure or untruthfulness of any representation or
warranty herein, the party or parties prevailing in such litigation or
proceeding shall be entitled to collect the costs and expenses of bringing or
defending such litigation or proceeding, including reasonable attorneys' fees,
from the party or parties not prevailing.
(l) Relationship of the Parties. Nothing in this Agreement is intended
to be construed so as to suggest that the parties hereto are partners or joint
venturers, or that any party or its employees is the employee or agent of the
other. Neither Xxxxxxxx nor the Company has any express or implied right or
authority under this Agreement to assume or create any obligations on behalf of
or in the name of the other party to any contract, agreement, arrangement,
understanding or undertaking with any third party.
(m) Exhibits, Schedules, etc. Each Exhibit to this Agreement shall be
initialed by Xxxxxxxx and the Company, and each Schedule shall be initialed by
the party providing it. Any Schedule provided by Xxxxxxxx Holders shall be
initialed by all of the Xxxxxxxx Holders. If a Schedule does not apply, it must
nonetheless be furnished and marked "not applicable." The information contained
in every Schedule shall be updated as necessary as of a date as close as
possible to the Closing Date and must be accurate and complete as of the Closing
Date. Each party signing this Agreement represents and warrants, to all other
parties, by such signature that he, she or it has carefully read this Agreement
in its entirety and understands the provisions of this Agreement.
(n) No Advice Given. Xxxxxxxx and the Xxxxxxxx Holders acknowledge and
agree that they have neither asked for nor received any legal or tax advice from
the Company or its counsel, nor any other person associated with the Company, in
regard to this Agreement or the transactions herein contemplated, and have
instead relied on advice and counsel furnished by their own legal or other
advisers in order to satisfy themselves as to the tax and other legal
implications to them of the Exchange and issuance of the Exchange Shares.
(o) Options Acknowledged. Xxxxxxxx and the Xxxxxxxx Holders
acknowledge that certain officers and directors of the Company have exercised
options to purchase common stock of the Company pursuant to the 1997
Compensatory Stock Option Plan and acknowledge that such options were valid and
have been validly exercised for the purchase of an aggregate of 1,000,000 common
shares, for cash. In particular, Xxxxx X. Xxxxxx has exercised options entitling
him to purchase 500,000 shares at $0.05 per share, and Xxxx X. Xxxxxxx Xx. has
exercised options entitling him to purchase 500,000 shares at $0.05 per share,
all of which shares have been registered under the Act under cover of a
registration statement on Form S-8 (the "Compensatory Shares"). Xxxxxxxx and the
Xxxxxxxx Holders agree that the Compensatory Shares shall be issued to Sasaki
and Xxxxxxx following the closing, and that such shares are unrestricted and
freely tradeable. In the event the Company should take the position that the
Compensatory Shares were not validly issued under the Form S-8 registration or
for any other reason that the shares are not freely tradeable, then the Company
shall cause the immediate issuance to Xxxxx X. Xxxxxx and Xxxx X. Xxxxxxx Xx. of
1,000,000 shares that have been registered under the Act under Form S-8 and are
18
HAMILTON________________ Company________________
freely tradeable, and the sums paid by them heretofore to exercise the options
shall be considered full payment for such shares; and the number of Compensatory
Shares issuable to them shall be increased by ten percent (10%) for every
additional fifteen-day period after the Closing that elapses prior to their
receipt of unrestricted certificates for such shares. Xxxxx X. Xxxxxx and Xxxx
X. Xxxxxxx Xx. are third-party beneficiaries of this paragraph 11(o).
IN WITNESS WHEREOF, all parties have executed this Agreement, and
Xxxxxxxx and the Company have initialled every preceding page hereof, as of the
dates respectively indicated below.
RENEGADE VENTURE (NEV.) CORPORATION XXXXXXXX AEROSPACE TECHNOLOGIES, INC.
By S/s Xxxxx X. Xxxxxx By Xxxxxx X. Xxxxx
------------------------------ ---------------------------------
Xxxxx X. Xxxxxx, President Xxxxxx X. Xxxxx, President
DATE: April 30, 2002 DATE: April 30, 2002
XXXXXXXX HOLDERS'
SIGNATURE PAGE
to Stock Exchange Agreement and Plan of Reorganization dated April 30, 2002
OLD MISSION ASSESSMENT CORPORATION UNITED PAYPHONE OWNERS LLC
By By
------------------------------- ----------------------------------
Authorized Officer Authorized Officer
DATE:_______________________ DATE:_____________________
SEAJAY HOLDINGS CO. LLC XXXXX' CORP.
By By
------------------------------- ---------------------------------
Authorized Officer Authorized Officer
DATE:_______________________ DATE:______________________
XXX XXXXXX, Individually XXXXXX X. XXXXX, Individually
By S/s Xxx Xxxxxx By s/s Xxxxxx X. Xxxxxx
------------------------------ ---------------------------------
Signature Signature
DATE:_______________________ DATE:______________________
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HAMILTON________________ Company________________
EXHIBITS and SCHEDULES
Xxxxxxxx Schedules:
Schedule 1.2 - Names and addresses of Xxxxxxxx shareholders, no. of
Xxxxxxxx Shares owned by each and number of exchange shares
that go to each person
Schedule 3(d) litigation
Schedule 3(g) disclosure of material liabilities
Schedule 3(i) taxes owed
Schedule 3(j) material contracts
Schedule 3(k) affiliate relationships
Schedule 3(o) insurance policies in effect
Schedule 3(r) patents, trademarks, service marks, licenses, franchises and
other intellectual property
20
HAMILTON________________ Company________________
S C H E D U L E 1.2
Names and addresses of Xxxxxxxx shareholders, number of Xxxxxxxx
Shares owned by each and number of Exchange Shares that go to each person
No. Xxxxxxxx No. Exchange
Name and Address Shares Owned Shares Issuable
---------------- ------------ ---------------
1. Old Mission Assessment Corporation 648 8,100,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
2. United Payphone Owners LLC 80 1,000,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
3. Seajay Holdings LLC 120 1,500,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
4. Xxxxx' Corporation 120 1,500,000
000 X. Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
5. Xxx Xxxxxx 16 200,000
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
6. Xxxxxx X. Xxxxxx 16 200,000
0000 X. Xxxxx Xxxxxxxxx, Xxxxx#0
Xxxxxxxx Xxxxx, Xxxxxxx 00000
------------ ---------------
Totals 1,000 12,500,000
21
HAMILTON________________ Company________________
