10 (i) (c)
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (this "Agreement") is made this 30th day
of September 1996, by and between TAC, Inc. ("TAC") a Utah corporation and BRIA
Communications Corporation ("BRIA"), a New Jersey corporation with its principal
place of business at 000-00 Xxxxxxx Xxxxxx, Xxxxxxxx Xxx Xxxx, 00000,
collectively referred to hereinafter as the "Parties."
PREMISES
A. WHEREAS, TAC desires to exchange 300,000 shares of restricted stock ("TAC
Stock") in exchange for 1,500,000 shares of BRIA Class A Common Stock ("BRIA
Stock"), restricted pursuant to Rule 144 under the Securities Act of 1933, as
amended;
B. WHEREAS, BRIA desires to exchange 1,500,000 shares of BRIA Stock in
exchange for 300,000 shares of TAC Stock;
B. WHEREAS, TAC and BRIA desire to exchange their respective shares in a private
transaction not involving a public offering as that term is used in Section 4(2)
of the Securities Act of 1933, as amended, (the "Securities Act").
AGREEMENT
BASED on the above Premises, which are hereby incorporated and in
consideration of the mutual promises contained herein, the benefits to be
derived by the Parties hereunder and other good and valuable consideration, the
sufficiency of which is hereby expressly acknowledged, BRIA and TAC agree as
follows:
1. DELIVERY OF THE SHARES
Within 30 days of the date of closing as defined below, the parties
will deliver the respective shares to an Escrow Agent acceptable to both
parties.
2. EFFECTIVE DATE AND CLOSING
The Closing shall be upon such date as the parties have satisfied their
respective obligations and covenants contained herein, but shall not be later
than September 30, 1996.
4. MUTUAL REPRESENTATIONS AND WARRANTIES OF TAC AND BRIA
The parties herein hereby mutually represent and warrant:
A. Authority. This Agreement has been duly executed by the parties
herein. The execution and performance of this Agreement will not
violate or result in a breach of, or constitute a default in any
agreement, instrument, judgement, order or decree to which either
party is a party or to which either party is subject.
B. Organization. BRIA Communications Corporation is a corporation
duly organized, validly existing and in good standing under the
laws of the state of New Jersey and it has all corporate power
necessary to engage in the business in which it presently
engages. TAC is a corporation duly organized, validly existing
and in good standing under the laws of the state of Utah and it
has all corporate power necessary to engage in the business in
which it presently engages
C. Litigation. The party's respective shares are not subject to any
claims or causes of action and the parties are not defendants,
nor plaintiffs against whom counterclaims have been asserted or
reduced to judgement in any pending litigation that would affect
this transaction. There are no proceedings threatened or pending
before any federal, state or municipal governments, or any
department, board, body or agency thereof, involving the TAC
shares or the BRIA shares as of the date hereof.
D. Legal Status. The shares of the parties are not issued in
violation of the preemptive rights of any person or of any
agreement to which either party is bound.
E. No Beneficial Interest. The shares of the parties are not subject
to any interest or right of any third person.
F. Compliance. The parties will transfer its shares in compliance
with applicable laws concerning form, content and manner of
preparation and execution.
G. No Encumbrances. The parties will deliver their respective shares
free and clear of any security interest, liens, restriction or
encumbrances and each warrants that it has the full right and
power to assign its interest in such shares and enter into and
carry out this Agreement subject to satisfaction of SEC Rule 144
and any other similar rules, laws or regulations affecting the
transferability of securities.
H. Transfer. Each party agrees to warrant and forever defend the
title to its respective shares delivered to the other party, its
successor and assigns.
I. Information. No representation or warranty contained herein, nor
statement in any document, certificate or schedule furnished or
to be furnished pursuant to this Agreement by either party in
connection with the transaction contemplated hereby, contains or
contained any untrue statement of a material fact, nor does or
will omit to state a material fact necessary to make any
statement of fact contained herein not misleading.
J. Security Compliance. The parties herein represent to each other
that:
(i) The shares being exchanged is a private transaction and for
investment purposes and not with a view to public resale or
distribution.
(ii) Neither will sell, transfer or otherwise dispose of the said
shares being exchanged except in compliance with the
Securities Act.
(iii)Each party acknowledges that it has been furnished with
disclosure documents which each feel are necessary to make
an economic decision to enact this stick exchange.
(iv) Each party is fully aware of the applicable limitations on
the resale of the securities. The TAC shares being received
by BRIA are subject to the restrictions as set forth in Rule
144 of the Securities Act of 1933.
The BRIA shares being received by TAC are being issued
pursuant to Rule 144 of the Securities Act of 1933
(v) By reason of the parties knowledge and experience in
financial and business matters in general, and investments
in particular, the parties herein are capable of evaluating
the merits and bearing the economic risks of an investment
in the securities and fully understands the speculative
nature of the securities and the possibility of loss.
(vi) The present financial condition of both parties is such that
neither is under a present or contemplated need to dispose
of any portion of the securities to satisfy an existing or
contemplated undertaking, need or indebtedness.
(vii)Any and all certificates representing the securities, any
and all securities issued in replacement thereof or in
exchange therefore, may bear the following legend, which
each party has read and understands:
The shares represented by this certificate
have not been registered under the Securities
Act of 1933 (the "Securities Act") and are
"restricted shares" as that term is defined
in Rule 144 under the Securities Act. The
shares may not be offered for sale, sold or
otherwise transferred except pursuant to an
effective Registration Statement under the
Securities Act or pursuant to an exemption
from registration under the Securities Act,
the availability of which is to be
established to the satisfaction of the
Company.
K. Financial Advisors. Each party, in making its decision to acquire
the respective shares of the other party's shares, relied on
solely on the advice of its principals, or its financial advisors
and no on advice given by the agents, principals, consultants or
employees of the other party.
4. PRIVATE TRANSACTION
The parties herein hereby represent and warrant to each other that the
exchange of said shares is being made for investment only and neither intends to
sell, hypothecate, give or otherwise dispose of any restricted shares
transferred herein or any interest therein for distribution to the public. The
parties acknowledge that this representation and warranty constitute the basis
upon which the other party is induced to enter into and perform its obligations
under this Agreement.
5. TERMINATION
Either party may terminate this Agreement anytime prior to the date of
Closing if there is any actual or threatened action or proceeding by or before
any court or any other governmental body which seeks to restrain, prohibit, or
invalidate the transactions which the Agreement contemplates and which, in the
judgement of the party giving notice to terminate and based upon the advise of
legal counsel, makes it inadvisable to proceed with the transactions which this
Agreement contemplates.
6. MISCELLANEOUS
A. Entire Agreement. This instrument sets forth the entire agreement
between the Parties hereto and no prior written or oral statement
or agreement shall be recognized or enforced.
B. Severability. If a court of competent jurisdiction determines
that any clause or provision of this Agreement is invalid,
illegal or unenforceable, the other clauses and provisions of the
Agreement shall remain in full force and effect. The clauses and
provisions which the Court determines are void, illegal or
unenforceable shall be limited so that they remain in effect to
the extent permissible by law.
C. Assignment. None of the Parties may assign this Agreement without
the express written consent of the other Party. However, if the
other Party consents to the assignment, such assignment will bind
and inure to the benefit of the assignee.
D. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Utah, the state in which
this Agreement will be performed.
E. Venue. To the extent permitted by law, the Parties agree that the
federal and local courts in Utah shall have exclusive personal
and subject matter jurisdiction and venue for any claim or
dispute between the Parties, irrespective of the nature or source
of the claim or dispute. The Parties made this arrangement
because: the Parties mutually desire to remove uncertainty as to
such matters; one or more of the Parties and their property are
located in Utah; and this Agreement has been negotiated and
executed and will be performed in Utah.
F. Waiver of Jury Trial. To the extent permitted by law, the Parties
hereby irrevocably waive a jury trial in the event of litigation.
The Parties included this provision because of the cost and delay
of a jury trial and because the Parties believe that a jury trial
would not be necessary to resolve any dispute or claim between
them.
G. Attorney's Fees. If either Party institutes legal action or other
proceeding (including, but not limited to, arbitration) to
enforce or to declare any right or obligation under this
Agreement or as a result of a breach, default or
misrepresentation in connection with any of the provisions of
this Agreement, or otherwise because of a dispute among the
Parties, the successful or prevailing Party will be entitled to
recover reasonable attorney's fees. Attorney's fees shall include
fees for appeals, collections and other expenses incurred in such
action or proceeding. Legal fees shall be awarded in addition to
any other relief to which the prevailing Party may be entitled.
H. No Third Party Beneficiary. Nothing in this Agreement, expressed
or implied, is intended to confer, any rights or remedies upon
any person other than the Parties hereto and their successors.
I. Counterparts. The Parties understand and agree that they may
execute this Agreement in any number of identical counterparts,
via facsimile or mail. Each counterpart shall be deemed an
original for all purposes.
J. Further Assurances. At any time and from time to time, after the
date of this Agreement, each Party will execute such additional
instruments and take such actions as are reasonably necessary to
confirm or perfect title to the TAC Shares or the BRIA Shares or
otherwise to carry out the intent and purposes of this Agreement.
L. Amendment or Waiver. Every right and remedy provided herein shall
be cumulative with every other right or remedy at law, or in
equity, and may be enforced concurrently herewith. No waiver by
any Party of the performance of any obligation by the other shall
be construed as a waiver of the same or any other default then,
theretofore, or thereafter occurring or existing. At any time
prior to the Closing Date, the Agreement may be amended by a
writing signed by both parties. Any term or condition of this
Agreement may be waived or the time for performance hereof may be
extended by a writing signed by the party or parties for whose
benefit the provision is intended.
M. Headings. The section and subsection headings in this Agreement
are inserted for convenience only. In the event of a conflict
between a heading and the text of this Agreement, the text shall
control the meaning and interpretation of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Stock
Exchange Agreement as to the date above first noted.
"TAC, Inc." BRIA Communications Corporation
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx, President Xxxxxxx Xxxxxxxxx, President
