Exhibit 10.5(ii)
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement"), dated September 16,
1998, is between Legal America of Virginia, Ltd. located at 0000 Xxxx Xxxxxx,
#000, Xxxxxx Xxxx, XX 00000 ("Seller"), and EYEQ Networking, Inc., a Delaware
corporation (hereinafter "EYEQ" or "Buyer"). Buyer desires to acquire from
Seller, and Seller is willing to transfer to Buyer, upon the terms and
conditions of this Agreement, that aggregate number of shares of common stock
set forth under Seller's name on the signature page hereof, that Seller owns
(the "JET Shares") in Jet Aviation Trading, Inc. a Florida corporation.
1. Transfer by Seller. In exchange for the consideration set forth
below, at Closing (as defined in paragraph 3), Seller will transfer and convey
the JET Shares to Buyer, free and clear of all liabilities, security interests,
liens, pledges, claims and encumbrances.
2. Acquisition Price. The aggregate acquisition price for the JET
Shares shall be one share of Common Stock $.001 par value per share, of Buyer,
issued by the Buyer, for every one JET Shares transferred hereunder (the "EYEQ
Shares"). The acquisition price will be equitably adjusted for any stock splits,
reverse stock splits, stock combinations or recapitalizations of Buyer which
occur after August 7, 1998 and prior to closing as set forth in Section 3
hereof.
3. Closing.
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3.1 Time and Place. The closing for the exchange (the "Closing")
will be held at the offices of Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP
("KHHBE"), located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000,
on August 15, 1998 (the "Closing Date") provided that, if the Closing has not
been completed by August 31, 1998, this Agreement will terminate and neither
party will have any further obligations to the other except for any breach of
its obligations hereunder.
3.2 Delivery by Seller. At the Closing, Seller will deliver to Buyer
certificates representing the JET Shares, duly endorsed for transfer.
3.3 Delivery by Buyer. At the Closing, Buyer shall deliver to Seller
a certificate representing the EYEQ Shares.
4. Representations and Warranties by Seller. Seller represents and
warrants to Buyer as follows:
4.1 Ownership and Power to Transfer. Seller is the lawful owner, of
record and beneficially, of the JET Shares free and clear of all liabilities,
security interests, liens, pledges, claims and encumbrances. Upon delivery of
certificates representing the JET Shares as contemplated by this Agreement,
Buyer will acquire good title to the JET Shares, free and clear of any
liability,
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security interest, lien, pledge, claim or encumbrance of any nature whatsoever
other than any restrictions on the transfer of the JET Shares required by the
Securities Act of 1933, as amended (the "Securities Act").
4.2 Validity of the Agreement. This Agreement constitutes the legal,
valid and binding agreement of Seller enforceable against Seller in accordance
with its terms.
4.3 Absence of Litigation. There is no litigation, proceeding, claim
or investigation pending or threatened, against or affecting the JET Shares,
whether or not fully covered by insurance, nor is there any valid basis for any
such litigation, proceeding, claim or investigation.
4.4 No Violation. Neither the execution or delivery of this
Agreement by Seller, nor the performance by Seller of any of the transactions
contemplated hereby (i) conflicts with, or constitutes a breach or default under
(a) any applicable judgment, order, writ, injunction or decree of any court or
(b) any applicable law or any applicable rule or regulation of any
administrative agency or governmental or regulatory authority or (ii) violates,
conflicts with, or constitutes a default (or an event or condition that, with
notice or lapse of time or both, would constitute a default) under, any
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which Seller is a party or may be bound.
4.5 Additional Representations and Warranties. The Seller represents
and warrants as follows, which representations and warranties shall be true and
correct as of the date when made and as of the Closing Date as though made at
that time:
(a) Seller is acquiring the EYEQ Shares for its own account for
investment purposes only and not with a view to the resale or distribution
thereof.
(b) Seller has not and will not, directly or indirectly, offer,
sell, transfer, assign, exchange or otherwise dispose of all or any part of the
EYEQ Shares, except in accordance with the provisions of this Agreement and the
Securities Act.
(c) Seller is acquiring the EYEQ Shares without having relied
upon any offering literature or prospectus. Seller has such knowledge and
experience in financial, business and tax matters that Seller is capable of
evaluating the merits and risks relating to Seller's investment in the EYEQ
Shares and making an investment decision with respect to the common stock of
Buyer.
(d) To the full satisfaction of Seller, Seller has been given
the opportunity to obtain information and documents relating to Buyer and to ask
questions of and receive answers from representatives of Buyer concerning Buyer
and the investment in the EYEQ Shares.
(e) Seller has adequately analyzed the risks of an investment in
the EYEQ Shares and has determined that the EYEQ Shares are a suitable
investment for Seller and that Seller is able at this time, and in the
foreseeable future, to bear the economic risk of a total loss of its investment
in Buyer.
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(f) Seller is aware that there are substantial risks attendant
to an investment in the EYEQ Shares.
(g) Seller is an "accredited investor" as defined in Rule 501 of
Regulation D of the Securities Act ("Regulation D") as presently in effect and
is purchasing the EYEQ Shares for its own account and the Seller, if an entity,
has not been formed for the specific purpose of acquiring the EYEQ Shares.
(h) Seller understands that no United States federal or state
agency or any other government or governmental agency has passed upon or made
any recommendation or endorsement of the EYEQ Shares.
(i) Seller understands that the EYEQ Shares are being offered
and sold to it in reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and that Buyer
is relying upon the truth and accuracy of, and Seller's compliance with, the
representations, warranties, and agreements, of Seller set forth herein in order
to determine the availability of such exemptions and the eligibility of Seller
to acquire such EYEQ Shares.
(j) Seller is a resident of the jurisdiction set forth under
Seller's name on the signature page hereof.
5. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows, which representations and warranties shall be
true and correct as of the date when made and as of the Closing Date as though
made at that time:
5.1 Fees or Commissions. Buyer has not made any agreement or taken
any action which might cause anyone to become entitled to a broker's fee or
commission as a result of the transactions contemplated hereunder.
5.2 Validity of the Agreement. This Agreement constitutes the legal,
valid and binding agreement of Buyer enforceable against Buyer in accordance
with its terms.
5.3 Absence of Litigation. There is no litigation, proceeding, claim
or investigation pending or threatened, against or affecting the EYEQ Shares,
whether or not fully covered by insurance, nor is there any valid basis for any
such litigation, proceeding, claim or investigation.
5.4 No Violation. Neither the execution or delivery of this
Agreement by Buyer, nor the performance by Buyer of any of the transactions
contemplated hereby (i) conflicts with, or constitutes a breach or default under
(a) any applicable judgment, order, writ, injunction or decree of any court or
(b) any applicable law or any applicable rule or regulation of any
administrative agency or governmental or regulatory authority or (ii) violates,
conflicts with, or constitutes a default (or an event or condition that, with
notice or lapse of time or both, would constitute a default) under,
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any contract, commitment, understanding, arrangement, agreement or restriction
of any kind or character to which Buyer is a party or may be bound.
5.5 No General Solicitation. Buyer has not conducted any "general
solicitations" as such term is defined in Rule 502(c) of Regulation D, with
respect to the EYEQ Shares being offered hereby.
6. Indemnity.
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6.1 Seller shall indemnify Buyer, and hold Buyer harmless from and
against, any loss, liability, claim, obligation, damage or deficiency, including
interest, penalties and reasonable attorneys fees and expenses (collectively
"Damages") arising from any misrepresentation or breach of warranty made by
Seller in this Agreement or any nonfulfillment by Seller of any obligation on
the part of Seller set forth in this Agreement.
6.2 Buyer shall indemnify Seller and hold Seller harmless from and
against any Damages arising from any misrepresentation or breach of warranty
made by Buyer in this Agreement or any nonfulfillment by Buyer of any obligation
on the part of Buyer set forth in this Agreement.
6.3 Any party which may be entitled to indemnification under this
Agreement shall give prompt notice to the indemnifying party. The indemnifying
party shall have the right, at its expense, to assume and direct the
investigation and defense of any claim, action or proceeding, including the
selection of counsel, provided any counsel selected by the indemnifying party is
reasonably satisfactory to the indemnified party. No settlement for monetary
payment which is the subject of indemnity under this Agreement shall be made
without the consent of the indemnifying party and the indemnifying party shall
have the right to direct proceedings with respect to such settlement. All
amounts to which an indemnified party may be entitled hereunder shall be
advanced by the indemnifying party as such amounts are incurred.
6.4 Remedies Cumulative. Except as expressly provided in this
Agreement, the remedies provided herein shall be cumulative and shall not
preclude assertion by any party hereto of any other rights or the seeking of any
other remedies against any other party hereto.
7. Miscellaneous Terms and Conditions.
7.1 Other Transactions. Prior to Closing, Seller shall not, and
shall not permit any party on Seller's behalf to, directly or indirectly,
encourage, solicit, initiate or participate in discussions or negotiations with,
or provide any information or assistance to, any corporation, partnership,
person or other entity or group (other than Buyer and Buyer's representatives)
concerning any merger, sale of securities, sale of substantial assets or similar
transactions involving Jet Aviation Trading, Inc. or the Seller.
7.2 Confidentiality. Seller and Buyer shall hold, and shall cause
their respective consultants and advisors to hold, in strict confidence, unless
compelled to disclose by judicial or
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administrative process or by other requirements of law, all documents and
information concerning the other parties furnished to it by any other party or
its representatives in connection with the transactions contemplated by this
Agreement (except to the extent that such information shall be shown to have
been (a) previously known by the party to which it was furnished, (b) in the
public domain through no fault of such party or (c) later lawfully acquired from
other sources by the party to which it was furnished), and each party shall not
release or disclose such information to any other person, except its auditors,
attorneys, financial advisors, bankers and other consultants and advisors in
connection with the transactions contemplated by this Agreement. Each party
shall be deemed to have satisfied its obligation to hold confidential
information concerning or supplied by the other party if it exercises the same
care as it takes to preserve confidentiality for its own similar information.
7.3 Execution of Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
7.4 Entire Agreement. This Agreement represents the entire
understanding of the parties hereto with reference to the transactions
contemplated hereby and supersedes any and all other oral or written agreements
and understandings heretofore made and shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns.
7.5 Governing Law. This Agreement will be governed by the laws of
the State of Delaware in the United States.
7.6 Notices. All notices and other communications between the
parties shall be in writing and shall be deemed to have been given if mailed
first-class, postage prepaid to the address set forth below or such other
address as Seller or Buyer may give the other for such purpose:
If to Buyer: EYEQ Networking, Inc.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
If to Seller: The address set forth on
the signature page hereto.
With a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Klehr, Harrison, Xxxxxx,
Branzburg & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
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7.7 Further Assurances. Prior to and following the Closing, at the
request of either party, the other party or parties shall deliver any further
instruments of transfer and take all reasonable actions as may be necessary or
appropriate to (i) effectuate the conveyance of the JET Shares and the EYEQ
Shares as contemplated hereby and (ii) effectuate any of the other transactions
contemplated by this Agreement.
7.8 Specific Performance. Seller and Buyer acknowledge that, in view
of the uniqueness of the Company's business, Buyer would not have an adequate
remedy at law for money damages in the event that this Agreement were not
performed in accordance with its terms, and therefore agree that Buyer shall be
entitled to specific enforcement of the terms hereof in addition to any other
remedy to which it may be entitled, at law or in equity.
7.9 Participation of KHHBE. The Seller acknowledges that KHHBE has
represented and continues to represent EYEQ with respect to the transactions
contemplated by this Agreement, that KHHBE has not rendered any advice to Seller
with respect to same, and that Seller has had the opportunity to seek advice of
counsel with respect to the risks and merits of the transactions contemplated by
this Agreement including, but not limited to, any federal or state tax
consequences associated with the exchange of JET Shares for EYEQ Shares.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the date first written above.
SELLER: BUYER:
/s/ Legal America of Virginia EYEQ NETWORKING, INC.
Legal America of Virginia
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Address: Title:
0000 Xxxx Xxxxxx, #000
Xxxxxx Xxxx, XX 00000
5,000
Shares of Jet Aviation Trading, Inc.
Common Stock
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