EXHIBIT 2.2
STOCK EXCHANGE AGREEMENT
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THIS AGREEMENT is made as of this 3rd day of January 1997, by and among The
Eastwind Group, Inc., a Delaware corporation ("Eastwind"); C.D.L. Xxxxxxx
("PerkinsC"), an individual residing at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
and the owner of 15,615 Shares of common stock of Xxxxxxx Company, a Delaware
corporation ("Xxxxxxx"); Xxxxxx Xxxxxxx ("PerkinsS"), an individual residing at
000 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx, XX 00000 and the owner of 15,615 shares of
the common stock of Xxxxxxx; Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), an individual
residing at 00 Xxxxxx Xxxx, Xxxxx, XX 00000 and the owner of 7,807 shares of
common stock of Xxxxxxx; Xxxxxx X. Xxxxxx ("Xxxxxx"), an individual residing at
000 Xxxxxxx Xxx, Xxxxxx Xxxxxxx, XX 00000 and the owner of 15,615 shares of
common stock of Xxxxxxx; Xxxxxx X. Xxxxxx ("Xxxxxx"), an individual residing at
00 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 and the owner of 7,807 shares of common
stock of Xxxxxxx; Xxxx X. Xxxxxxx ("Xxxxxxx"), an individual residing at 0000
Xxxxxxxxx Xxxx, Xxxxx, XX 00000 and the owner of 15,615 shares of common stock
of Xxxxxxx; Xxxxxx X. Xxxxxx, Xx. ("Xxxxxx"), an individual residing at 000
Xxxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 and the owner of 22,898 shares of common
stock of Xxxxxxx; Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), an individual residing at 00
Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 and the owner of 9,989 shares of common
stock of Xxxxxxx; Xxxxxxxx Xxxxxx ("Xxxxxx"), an individual residing at 000
Xxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 and the owner of 7,037 shares of common
stock of Xxxxxxx; Xxxxxxx Xxxxx ("Marks"), an individual residing at 000 Xxxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000 and the owner of 3,518 shares of common stock of
Xxxxxxx; and that certain irrevocable charitable trust of which Xxxxxxxxx
Xxxxxxx is Settlor and Trustee dated June 8, 1996 known as the Xxxxxxx
Charitable Trust ("Trust") and the owner of 35,184 shares of common stock of
Xxxxxxx (PerkinsC, PerkinsS, Gilbert, Merves, Foster, Burrows, Bailey, Schlupp,
Medvic, Marks and Trust hereinafter collectively referred to as "Stockholders").
THE PARTIES HERETO AGREE AS FOLLOWS:
(1) Each of the Stockholders wishes to sell and exchange all of his or its
shares of the common stock of Xxxxxxx (totalling in the aggregate 156,700 shares
and collectively, the "Xxxxxxx Shares") to Eastwind in exchange for a total of
44,537 shares of Eastwind common stock, par value $.10 per share in the
aggregate (the "Eastwind Shares").
(2) The exchange of the Eastwind Shares for the Xxxxxxx Shares shall occur
at a Closing held at Eastwind as soon as reasonably practicable following the
date of execution and delivery of this Agreement by the parties. It shall be a
condition to Closing for the benefit of Eastwind that a sufficient number of
stockholders shall have delivered enough of their Xxxxxxx Shares on or before
February 28, 1997 so that Eastwind shall have received more than eighty (80%)
percent of the total issued and outstanding Xxxxxxx Shares in exchange for the
proportionate number of Eastwind Shares, but the delivery and exchange of the
remaining Xxxxxxx Shares by the other Stockholders shall not be an absolute
condition to the effectiveness
of this Agreement, and Eastwind shall have the option to proceed with the
exchange of shares with those who have delivered their Xxxxxxx Shares even if
one or more of the other Stockholders fail to deliver their certificates of
Xxxxxxx Shares in exchange for their proportionate number of Eastwind Shares on
or before such date.
(3) The Eastwind Shares shall be delivered to the Stockholders upon receipt
of their Xxxxxxx Shares offered in exchange therefor in the following amounts:
C.D.L. Xxxxxxx 4,438 Eastwind Shares
Xxxxxx Xxxxxxx 4,438 Eastwind Shares
Xxxxxxx X. Xxxxxxx 2,219 Eastwind Shares
Xxxxxx X. Xxxxxx 4,438 Eastwind Shares
Xxxxxx X. Xxxxxx 2,219 Eastwind Shares
Xxxx X. Xxxxxxx 4,438 Eastwind Shares
Xxxxxx X. Xxxxxx, Xx. 6,508 Eastwind Shares
Xxxxxxx X. Xxxxxxx 2,839 Eastwind Shares
Xxxxxxxx Xxxxxx 2,000 Eastwind Shares
Xxxxxxx Xxxxx 1,000 Eastwind Shares
Xxxxxxx Charitable Trust 10,000 Eastwind Shares
No fractional shares of Eastwind shall be issued in exchange for the Xxxxxxx
Shares, and the allocation of the Eastwind Shares has been apportioned in an
equitable manner, rounding up or down to the nearest whole share.
(4) The Stockholders represent and warrant to Eastwind that the 156,700
Xxxxxxx Shares owned by them, in the aggregate, constitute all of the currently
issued and outstanding common stock of Xxxxxxx and each of them owns both legal
and beneficial title and all rights of ownership to the number of Xxxxxxx Shares
set forth above in his or its own name, free and clear of all liens,
restrictions, encumbrances, adverse rights or other obligations impairing the
ability of the Stockholders to transfer the Xxxxxxx Shares free and clear to
Eastwind in exchange for the Eastwind Shares.
(5) Eastwind represents and warrants to the Stockholders that the Eastwind
Shares, when delivered in accordance with the terms hereof and for the
consideration expressed herein, will be duly and validly issued, fully paid and
non-assessable and will be issued in compliance with all applicable federal and
state securities laws. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state, local or provincial governmental authority on the part of
Eastwind is required in connection with the consummation of the transactions
contemplated by this Agreement other than the filing by Eastwind of a Form 203-D
with respect thereto with the Pennsylvania Securities Commission together with
any other applications for similar exemption in other states in which the
Xxxxxxx stockholders reside, if any, to the extent required.
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(6) Eastwind has provided the Stockholders with all information which they
have reasonably requested in order for them to determine whether or not to
accept the Eastwind Shares in exchange for the Xxxxxxx Shares pursuant to the
terms hereof and all other information which Eastwind believes is reasonably
necessary to enable them to make such determination. Neither this agreement nor
any other information, statement or certificates provided, made or delivered in
connection herewith or in connection with the Stockholders' due diligence
investigation regarding Eastwind contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements herein
not misleading.
(7) The Stockholders understand that the Eastwind Shares are characterized
as "restricted securities" under the federal securities laws in as much as they
are being acquired from Eastwind in a transaction not involving a public
offering and that under such laws and applicable regulations such securities may
be resold without registration under the federal securities laws only in certain
limited circumstances. It is further understood that the certificates
evidencing the Eastwind Shares will bear the following legend, in addition to
any additional legend that may be required by any applicable state securities
laws:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE SECURITIES OR BLUE SKY LAWS.
EXCEPT AS OTHERWISE SET FORTH IN A STOCK EXCHANGE AGREEMENT DATED AS
OF JANUARY 3, 1997, THEY MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF REGISTRATION
UNDER SUCH ACT OR UNDER APPLICABLE STATE SECURITIES OR BLUE SKY LAWS
OR AN EXEMPTION THEREFROM."
Without in any way limiting the provisions set forth above, as a condition of
the issuance of the Eastwind Shares in exchange for the Xxxxxxx Shares, each
Stockholder, by his or its execution and delivery of this Agreement represents
that he or it will hold such Eastwind Shares for investment for his or its own
account and not with a view to the resale or distribution of any part thereof
and in the case of any Stockholder resident within the Commonwealth of
Pennsylvania will not sell the Eastwind Shares for at least twelve months,
except and until:
(a) There is then in effect a Registration Statement under the
Securities Act of 1933, as amended ("Securities Act"), covering such proposed
resale or distribution and such resale or distribution is made in accordance
with such Registration Statement; or
(b) The Stockholders, or any of them, shall have delivered to Eastwind
an opinion of counsel, such counsel and opinion each being reasonably
satisfactory to Eastwind, that such resale or distribution will not require
registration of such Eastwind Shares under the Securities Act; provided
however, that the parties agree that transfers to family members of the
Stockholders may be made without delivery of such an opinion if pursuant to the
laws of descent and distribution or for other family estate planning purposes;
or
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(c) Such Eastwind Shares are to be sold or otherwise transferred
pursuant to Rule 144 under the Securities Act of 1933.
Each such Stockholder further represents that:
(i) He or it has received and carefully read such information
concerning Eastwind, including reports publicly filed by it with the Securities
and Exchange Commission, to the extent that he or it is familiar with Eastwind
and has based his or its decision to invest in Eastwind on such information as
publicly filed, but has not been furnished with any other offering literature,
investment memorandum or prospectus not generally on file with the Commission.
(ii) He or it has, together with his or its Purchaser Representative,
if any, such knowledge and experience in financial and business matters that he
or it is capable of evaluating the merits and risks of the prospective
investment.
(iii) He is at least twenty-one years of age; has adequate means of
providing for his current needs and personal contingencies; has no need for
liquidity in his investment in the Eastwind Shares; maintains his domicile and
is not a transient or temporary resident at the address shown above; and that
his overall commitment to investments which are not readily marketable is not
disproportionate to his net worth, nor will his investment in the Eastwind
Shares cause such overall commitment to become excessive.
(iv) He or it understands that Eastwind has no obligation or current
intention to register the Eastwind Shares for resale under any federal or state
securities laws.
(v) He acknowledges that if he is purchasing the Eastwind Shares in
a fiduciary capacity, all of the representations in this Section (7) shall be
deemed to have been made on behalf of the person, persons or entities for whom
he has made such investment.
(8) Pursuant to the laws and regulations of the Commonwealth of
Pennsylvania, within two (2) business days from the date of execution of this
Agreement, the Stockholders, or any of them, may elect to withdraw from this
Stock Exchange Agreement, which withdrawal shall be without further liability to
Eastwind or any other person. To accomplish such a withdrawal, such Stockholder
need only send a letter or telecopy to Eastwind indicating its intention to
withdraw. Such letter or telecopy should be sent and postmarked prior to the
end of the aforementioned second business day. If sending a letter, it is
prudent to send it by certified mail return receipt requested, first class, to
insure that it is received and also to evidence the time when it was mailed.
Should any Stockholder make such request verbally, it should ask for written
confirmation that such request has been received.
(9) The parties hereto intend that the transactions contemplated by this
Stock Exchange Agreement shall constitute a tax-free reorganization as the
acquisition of "substantially
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all" of the voting stock of Xxxxxxx in exchange "solely for voting stock of
Eastwind" as further set forth in Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended. Each of the parties hereto agrees with each of the
other parties hereto to do all such things as are necessary to qualify the
transactions contemplated by this Stock Exchange Agreement as such a tax-free
reorganization. Each of the parties hereto further covenants with each of the
other parties hereto that he or it shall treat the transactions set forth in
this Stock Exchange Agreement in such a fashion for each of his or its own
federal tax purposes as is consistent with such characterization.
(10) The parties further agree as follows:
(a) No party to this Agreement, without the prior written consent of
each of the other parties thereto, may assign its rights under this Agreement,
in whole or in part, and the terms and conditions of this Agreement shall enure
to the benefit of and be binding upon the respective successors, permitted
assigns, personal representatives and beneficiaries of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties thereto or their respective successors, permitted assigns,
personal representatives and beneficiaries, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as otherwise expressly
provided for herein.
(b) Unless otherwise provided, any notice required or permitted under
this Agreement shall be given in writing and shall be deemed effectively given
upon receipt by the party to be notified or upon three (3) days following
deposit with the United States Post Office, by registered or certified mail,
first class postage pre-paid and addressed to the party to be notified:
If to Eastwind:
The Eastwind Group, Inc.
100 Four Falls Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxxx, XX 00000
Attention: Chairman
If to the Stockholders, then to their individual addresses as set
forth at the beginning of this Agreement.
(c) Any term of this Agreement may be amended and the observance of
any term may be waived (either generally or in a particular instance, and either
retroactively or prospectively), only with the prior written consent of all of
the parties hereto.
(d) If any one or more provisions of this Agreement are held to be
unenforceable or without effect under applicable law, such provision or
provisions shall be
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excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
(e) This Agreement shall be governed by and construed under the laws
of the Commonwealth of Pennsylvania without regard to the body of law
controlling conflicts of laws.
(f) This Agreement may be executed in two or more counterparts, each
of which shall be deemed a duplicate original thereof, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE EASTWIND GROUP, INC.
By:
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Title:
(SEAL)
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C.D.L. Xxxxxxx
(SEAL)
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Xxxxxx Xxxxxxx
(SEAL)
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Xxxxxxx Xxxxxxx
(SEAL)
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Xxxxxx Xxxxxx
(SEAL)
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Xxxxxx Xxxxxx
(SEAL)
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Xxxx Xxxxxxx
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(SEAL)
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Xxxxxx X. Xxxxxx, Xx.
(SEAL)
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Xxxxxxx X. Xxxxxxx
(SEAL)
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Xxxxxxxx Xxxxxx
(SEAL)
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Xxxxxxx Xxxxx
(SEAL)
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Xxxxxxx Charitable Trust, by
Xxxxxxxxx Xxxxxxx, Sole Settlor
and Sole Trustee
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