EXHIBIT 2.2
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement") is made as of May11,
2005 among Pixiem, Inc., a Delaware corporation (the "Company"), WinWin
Wireless, LLC, a Delaware limited liability company ("WinWin"), and
_______________ ("Stockholder").
WHEREAS, Stockholder owns ________ shares of the Company's common stock,
par value $__ per share (the "Shares"), and does not otherwise own or have any
right to receive any shares of the capital stock of the Company;
WHEREAS, the Company and its major shareholders have negotiated an
agreement with WinWin (the "Acquisition Agreement") pursuant to which WinWin
will acquire all of the issued and outstanding capital stock of the Company in
exchange for 3,000,000 shares of common stock, par value $0.01 per share, of
WinWin Gaming Inc., a Delaware corporation and the indirect parent of WinWin
("Parent"), (the "Acquisition"); and
WHEREAS, in connection with the Acquisition, Stockholder wishes to
exchange the Shares for shares of common stock of Parent on the terms and
conditions set forth herein.
Intending to be legally bound, the parties hereby agree as follows:
1. Exchange of Stock.
1.1 Exchange of Stock. Subject to the terms and conditions of this
Agreement, Stockholder hereby agrees to transfer to WinWin all of Stockholder's
right, title and interest in and to the Shares to WinWin in exchange for
_______________ shares of common stock, par value $0.01 per share, of Parent
(the "WinWin Shares").
1.2 Delivery. The exchange of shares described in Section 1.1 above
shall occur simultaneously with the closing of the Acquisition as described in
the Acquisition Agreement (the "Closing"). At the Closing, Stockholder shall
deliver to WinWin a certificate or certificates representing the Shares and a
duly executed assignment transferring the Shares to WinWin, and WinWin shall
deliver to Stockholder a duly executed certificate representing the WinWin
Shares. If the Closing does not occur by July 31, 2005, the rights and
obligations of the parties hereunder shall terminate and this agreement shall be
of no further force and effect.
2. Representations and Warranties of WinWin. WinWin represents and warrants
to Stockholder that the statements contained in this Section 2 are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing (as though made then and as though the date of the Closing were
substituted for the date of this Agreement throughout this Section 2)
2.1 Organization of WinWin. WinWin is a limited liability company, duly
formed and in good standing under the laws of the State of Delaware. Parent is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware.
2.2 Authorization of Transaction. WinWin has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of WinWin,
enforceable in accordance with its terms and conditions. WinWin need not give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any governmental authority in order to consummate the transactions
contemplated by this Agreement.
2.3 WinWin Shares. The WinWin Shares to be issued to Stockholder have
been or will have been duly authorized for issuance by all requisite corporate
and stockholder action required under the General Corporation Law of the State
of Delaware and no other corporate or shareholder action is required to
authorize the WinWin Shares for issuance and, when so issued in accordance with
the terms of this Agreement, the WinWin Shares will be validly issued, fully
paid and non-assessable.
2.4 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any governmental
authority to which WinWin is subject or any provision of its certificate of
formation or operating agreement, or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument or other arrangement
to which WinWin is a party or by which it is bound or to which any of its assets
is subject.
2.5 Brokers' Fees. WinWin has no liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which any Stockholder could become liable or
obligated.
3. Representations and Warranties of Stockholder. Stockholder represents and
warrants to WinWin that the statements contained in this Section 3 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing (as though made then and as though the date of the Closing
were substituted for the date of this Agreement throughout this Section 3) with
respect to himself.
3.1 Ownership of Shares. Stockholder is the owner of record and
beneficially of the Shares, free and clear of any restrictions on transfer
(other than any restrictions under the Securities Act of 1933 and state
securities laws), taxes, security interest, options, warrants, purchase rights,
contracts, commitments, equities, claims and demands, and Stockholder has not
sold, pledged, assigned or otherwise transferred any of the Shares except
pursuant to this Agreement. Stockholder is not a party to any option, warrant,
purchase right, or other contract or commitment that could require Stockholder
to sell, transfer, or otherwise dispose of any capital stock of the Company
(other than this Agreement). Stockholder is not a party to any voting trust,
proxy, or other agreement or understanding with respect to the voting of any
capital stock of the Company. Other than the Shares, Stockholder (a) does not
have any equity interest in the Company, and (b) does not have any rights to any
additional shares of the capital stock or any other securities of the Company,
including any options, warrants, conversion privileges, preemptive rights,
subscription rights or other rights or agreements.
3.2 Authorization of Transaction. Stockholder has full power and
authority to execute and deliver this Agreement and to perform his or her
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of Stockholder, enforceable in accordance with its terms and
conditions. Stockholder does not need to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of governmental
authority in order to consummate the transactions contemplated by this
Agreement.
3.3 Noncontravention. Neither the execution and the delivery of this
Agreement nor the consummation of the transactions contemplated hereby, will (i)
violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any governmental
authority to which Stockholder is subject, or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which Stockholder is a party or by which he is bound or to which
any of his assets is subject.
3.4 Investment. Stockholder (i) understands that the WinWin Shares have
not been, and will not be, registered under the Securities Act of 1933, as
amended, or under any state securities laws, and are being offered in reliance
upon federal and state exemptions for transactions not involving any public
offering, (ii) is acquiring the WinWin Shares solely for his or her own account
for investment purposes, and not with a view to the distribution thereof, (iii)
is a sophisticated investor with knowledge and experience in business and
financial matters, (iv) has received certain information concerning Parent and
has had the opportunity to obtain additional information as desired in order to
evaluate the merits and the risks inherent in holding the WinWin Shares, and (v)
is able to bear the economic risk and lack of liquidity inherent in holding the
WinWin Shares.
3.5 Brokers' Fees. Stockholder has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which WinWin could become liable
or obligated.
4. Miscellaneous.
4.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York without giving effect
to any choice or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
4.2 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto;
provided, however, that the rights of Stockholder to purchase any Shares shall
not be assignable without the prior written consent of WinWin.
4.3 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by Stockholder or WinWin and
the Closing.
4.4 Legends. The certificate or certificates representing the WinWin
Shares to be delivered to Stockholder will be imprinted with a legend
substantially in the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR UNDER ANY APPLICABLE STATE SECURITIES
LAW. THESE SECURITIES MAY NOT BE TRANSFERRED
EXCEPT UPON DELIVERY TO THE CORPORATION OF AN
OPINION OF COUNSEL SATISFACTORY IN FORM AND
SUBSTANCE TO IT THAT SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAW.
4.5 Entire Agreement; Amendment. This Agreement constitutes the full and
entire understanding and agreement among the parties with regard to the subjects
hereof and thereof. Neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written instrument signed by
the party against whom enforcement of any such amendment, waiver, discharge or
termination is sought.
4.6 Expenses. WinWin and Stockholder shall bear their own expenses and
legal fees incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
4.7 Counterparts. This Agreement may be executed in any number of
counterparts all of which together shall constitute one instrument.
4.8 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PIXIEM, INC. Stockholder:
By:
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Name: Xxxxxxx Xxx Stockholder
Title: President
Address:
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WINWIN WIRELES, LLC
By:
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Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer / Vice President, Finance
