EXHIBIT 2.6
NETSOURCE INTERACTIVE
TRANSPHERE INTERACTIVE
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT is made as of June 4, 1996, by and between
Netsource Interactive, a Delaware corporation (the "Company"), the undersigned
holders (each a "Shareholder" and together the "Shareholders") of common stock
of Transphere Interactive, Inc., a California corporation ("Transphere") and the
undersigned holders (each an "Optionholder" and together the "Optionholders") of
options to purchase common stock of Transphere.
R E C I T A L S
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A. Each Shareholder holds of record the outstanding shares of the common
stock (the "Common Shares") of Transphere set forth in Exhibit A. Each
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Optionholder holds of record the outstanding options (the "Options") to purchase
shares of the common stock of Transphere set forth in Exhibit A.
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B. Each Shareholder wishes to transfer all of his Common Shares in
Transphere in exchange for shares of common stock in the Company as set forth in
Exhibit A hereto ("Company Shares"). Each Optionholder wishes to transfer all
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of his Options in exchange for options to purchase shares of common stock in the
Company as set forth in Exhibit A hereto ("Company Options").
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NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties hereto agree as follows:
A G R E E M E N T
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The parties hereby agree as follows:
1. Exchange.
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1.1. Issuance of the Company Shares. Subject to the terms and
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conditions hereof, the Company will issue to each Shareholder that number of
Company Shares indicated by the Shareholder's name on the exchange schedule (the
"Exchange Schedule") attached hereto as Exhibit A in exchange for the surrender
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by the Shareholder of all of such Shareholder's Common Shares.
1.2. Issuance of the Company Options. Subject to the terms and
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conditions hereof, the Company will issue to each Optionholder Company Options
to purchase that number of shares of common stock of the Company indicated by
the Shareholder's name on the exchange schedule (the "Exchange Schedule")
attached hereto as
Exhibit A in exchange for the surrender by the Optionholder of all of such
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Optionholder's Options. The Company Options issued to each Optionholder will
contain terms and conditions which are substantially similar to the terms and
conditions of the Optionholder's Options, with the exercise price being adjusted
to take into account the exchange ratio for the options.
2. Closing Date; Delivery.
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2.1. Closing Date.
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(a) The closing of the exchange shall be held at the office of
Xxxx Xxxx Xxxx & Freidenrich, 000 Xxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, on
June 4, 1996, or a such other time and place as the Company and the Shareholder
may agree in writing.
(b) The closing referred to in subsection (a) above is
hereinafter referred to as the "Closing" and the date of the Closing is
hereinafter referred to as the "Closing Date".
2.2. Delivery.
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(a) Subject to the terms of this Agreement, at the Closing the
Company will (i) deliver to each Shareholder a stock certificate reflecting the
issuance of the Company Shares to the Shareholder as set forth herein against
delivery of the certificate(s) representing the Shareholder's Common Shares
accompanied by duly executed stock power(s) for such certificate(s), and (ii)
deliver to each Optionholder a Company Option to purchase that number of shares
of common stock of the Company as set forth on Exhibit A hereto against delivery
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of the Options.
(b) Despite anything in this Agreement to the contrary, the
rights and obligations of the parties to this Agreement under Section 3 of this
Agreement are conditional upon the occurrence of the Closing upon satisfaction
of all conditions of Closing set forth in Section 6.1 of this Agreement and are
and will be of no force and effect until the occurrence of the Closing. The
parties hereto agree that this Agreement may be terminated unilaterally by the
Company at any time prior to the Closing on written notice to the other parties
hereto.
3. Representations and Warranties of the Company.
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The Company hereby represents and warrants to each of the
Shareholders and Optionholders, as follows:
3.1. Organization and Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
2.
3.2. Legal Power. The Company has now, or will have at the Closing
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Date, all requisite power to enter into this Agreement, to issue the Company
Shares and Company Options hereunder, and to carry out and perform its
obligations under the terms of this Agreement, and has or will have taken all
actions necessary for the authorization, execution and delivery of this
Agreement and the issuance of the Company Shares and Company Options set forth
on Exhibit A. This Agreement is a valid and binding obligation of the Company
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enforceable in accordance with its respective terms, except as the same may be
limited by bankruptcy, insolvency, moratorium, and other laws of general
application affecting the enforcement of creditors' rights.
3.3. Valid Issuance. The Company Shares, when issued in compliance
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with the provisions of this Agreement, and the Company's common stock, when
issued upon proper exercise of the Company Options, will be validly issued,
fully paid and nonassessable, and will be free of any liens or encumbrances;
provided, however, that the Company Shares and such common stock may be subject
to restrictions on transfer under state and/or federal securities laws as set
forth herein, and as may be required by future changes in such laws.
4. Representations and Warranties of the Shareholders and Optionholders
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and Restrictions on Transfer Imposed by the Securities Act of 1933.
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4.1. Disclosure. Each Shareholder and each Optionholder
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(collectively referred to as the "Holders" and singularly as a "Holder")
represents and warrants to the Company that the Holder has had full opportunity
to discuss the transaction covered by this Agreement with the managements of
Transphere and of the Company, and has had full access to the books and records
of Transphere and the Company.
4.2. Representations and Warranties by the Holder Regarding
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Investment Intent; Restrictions on Transfer. Each Holder, severally and not
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jointly, represents and warrants to the Company as follows:
(a) The Company Shares or Company Options to be received by
the Holder will be acquired for the Holder's own account, for investment and not
with a view to, or for resale in connection with, any distribution or public
offering thereof within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and that the Holder has no current commitment or
obligation, contingent or otherwise, to anyone other than the Company, to
dispose of the Company Shares or Company Options and has no current plan or
intent to dispose of the Company Shares or Company Options other than in a
public offering registered by the Company or any successor corporation under the
Securities Act or under Rule 144 under the Securities Act following such a
registered public offering.
(b) The Holder understands and acknowledges that the offering
of the Company Shares and Company Options pursuant to this Agreement will not be
registered under the Securities Act on the grounds that the exchange of the
Common Shares for the Company Shares and the exchange of the Options for the
Company Options contemplated by this Agreement is exempt from registration under
the Securities Act and exempt from qualification pursuant to Section 25102(f) of
the California Corporate Securities Law of 1968, as amended (the "Law"), and
that the Company's reliance upon such exemption and
3.
qualification is predicated upon the Holder's representations set forth in this
Agreement. The Holder acknowledges and understands that the Company Shares and
Company Options must be held indefinitely unless the Company Shares or the
common stock underlying the Company Options are subsequently registered under
the Securities Act and qualified under the Law or an exemption from such
registration and such qualification is available.
(c) The Holder covenants that in no event will the Holder
dispose of any of the Company Shares or Company Options (other than in
conjunction with an effective registration statement for the Company Shares or
the common stock underlying the Company Options under the Securities Act or in
compliance with Rule 144 promulgated under the Securities Act) unless and until
(i) the Holder shall have notified the Company of the proposed disposition and
shall have furnished the Company with a detailed, true and accurate statement of
the circumstances surrounding the proposed disposition, and (ii) if requested by
the Company, the Holder shall have furnished the Company with an opinion of
counsel satisfactory in form and substance to the Company to the effect that (x)
such disposition will not require registration under the Securities Act or
qualification under the Law or (y) appropriate action necessary for compliance
with the Securities Act, the Law and any other applicable state, local or
foreign law has been taken.
(d) The Holder understands that if the Company does not
register its securities with the Securities and Exchange Commission ("SEC")
pursuant to Section 12 or become subject to Section 15(d) of the Securities
Exchange Act of 1934, as amended, or supply information pursuant to Rule 15c2-11
thereunder or if a registration statement covering the Company Shares (or a
filing pursuant to the exemption from registration under Regulation A of the
Securities Act covering the Company Shares) under the Securities Act is not in
effect when it desires to sell the Company Shares, the Holder may be required to
hold the Company Shares and the Company Options (or the common stock underlying
the Company Options) for an indeterminate period. The Holder also understands
that any sale of the Company Shares or the common stock underlying the Company
Options that might be made by the Holder in reliance upon Rule 144 under the
Securities Act may be made only in limited amounts in accordance with the terms
and conditions of that rule.
(e) The Holder's ownership of such Holder's Common Shares and
Options consists of good and valid title, free and clear of all security
interests, liens, encumbrances, options, calls, pledges, trusts, voting trusts
and other agreements, covenants, restrictions, reservations and other burdens
("Restrictions"), except (i) Restrictions imposed pursuant to applicable federal
and state securities laws, (ii) such Restrictions as are set forth in common
stock option agreements, warrants or stock purchase agreements executed by
Transphere.
(f) The Holder's execution and delivery of this Agreement and
one or more stock powers with respect to such Holder's Common Shares shall
transfer to and vest in good and valid title to such Holder's Common Shares and
Options free and clear of all Restrictions except such Restrictions as are
referenced in Section 6.1(e) above.
(g) The execution and delivery of this Agreement by the Holder
and the consummation of the transactions contemplated hereby will not result in
the breach of any
4.
term of or constitute a default under, any contract, agreement, commitment,
indenture, mortgage, note or other instrument or obligation to which the Holder
is a party or by which such Holder or any of such Holder's Common Shares or
Options may be bound.
(h) The Holder has full legal capacity, power and authority to
execute, deliver, and perform his, her or its obligations under this Agreement.
(i) This Agreement has been duly executed and delivered by the
Holder and constitutes a legal, valid and binding obligation of such Holder,
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency and other laws affecting the enforcement of creditors'
rights and by the availability of equitable remedies.
5. Conditions to Closing.
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5.1. Conditions to Holders' Obligations. The obligation of each
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Holder to exchange the Holder's Common Shares for Company Shares and Options for
Company Options at the Closing is subject to the fulfillment, on or prior to the
Closing Date, of the following conditions:
(a) Representations and Warranties Correct. The representations
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and warranties made by the Company in Section 3 hereof shall be true and correct
when made, and shall be true and correct in all material respects on the Closing
Date with the same force and effect as if they had been made on and as of said
date. The Company shall have performed in all material respects all obligations
and conditions herein required to be performed or observed by it on or prior to
the Closing Date.
(b) Consents and Waivers. The Company shall have obtained in a
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timely fashion any and all consents, permits and waivers necessary or
appropriate for consummation of the transactions contemplated by this Agreement.
5.2. Conditions to Obligations of the Company. The Company's
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obligation to issue the Company Shares and Company Options to the Holder at the
Closing is subject to the fulfillment to the Company's satisfaction on or prior
to the Closing Date of the following conditions, any of which may be waived by
the Company in its sole discretion:
(a) Representations and Warranties Correct. The representations
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and warranties made by each Holder in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date with the same force
and effect as if they had been made on and as of said date.
(b) Consents and Waivers. The conditions set forth in Section
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5.1(b) shall have been fulfilled.
5.
6. Miscellaneous.
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6.1. Governing Law. This Agreement shall be governed in all respects
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by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
6.2. Survival. The representations, warranties, covenants and
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agreements made herein shall survive the Closing of the transactions
contemplated hereby.
6.3. Successors and Assigns. Except as otherwise expressly provided
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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.
6.4. Further Acts. The parties hereto shall perform all further acts
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and execute and deliver all documents that may be reasonably necessary to carry
out their obligations hereunder and the purposes of this Agreement.
6.5. Changes and Termination. Subject to Section 2.1(a), neither this
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Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the Company and
each Holder.
6.6. Entire Agreement. This Agreement and the other documents
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delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
6.7. Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall be delivered personally or
mailed by first class mail, postage prepaid, addressed (a) if to the Holder, at
such Holder's address set forth beneath such Holder's signature on the signature
page hereto, or at such other address as such Holder shall have furnished to the
Company, or (b) if to the Company, at the address of the Company set forth
beneath the Company's signature on the signature page hereto, or at such other
address as the Company shall have furnished to the Holder in writing.
6.8. Severability. In case any provision of this Agreement shall be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
6.9. Expenses. The Company and the Holder shall each bear its own
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expenses and legal fees in connection with this Agreement and the transactions
contemplated hereby.
6.10. Titles and Subtitles. The titles of the sections and
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subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
6.
6.11. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.12. Delays or Omissions. No delay or omission to exercise any
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right, power or remedy accruing to the Company or to the Holder shall impair any
such right, power or remedy of the Company or the Holder, nor shall it be
construed to be a waiver of any breach or default under this Agreement, or any
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any delay or omission to exercise any right, power or
remedy or any waiver of any single breach or default be deemed a waiver of any
other right, power or remedy or breach or default theretofore or thereafter
occurring. All remedies, either under this Agreement, or by law otherwise
afforded to the Company or the Holder, shall be cumulative and not alternative.
7.
NETSOURCE INTERACTIVE
a Delaware corporation
By
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Xxxxxxx Xxxxxxxxxxx, President
Address:
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
The foregoing Exchange Agreement is hereby agreed to and accepted. The number
and type of Common Shares or Options owned and held of record by the
undersigned are accurately set forth on Exhibit A hereto.
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HOLDER:
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Signature
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Print Name
Address:
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8.
EXHIBIT A
EXCHANGE SCHEDULE
Shareholder Common Shares Company Shares
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Xxxxxxx Xxxxxxxxxxx 4,439,000 4,103,292
Xxxx Xxxx 2,671,000 2,469,000
Xxx Xxxx 2,000,000 1,849,000
Helix Capital 890,000 823,000
Optionholder Options* Company Options**
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Xx Xxxxx 1,000,000 924,000
Xxxx Xxxxxxx 379,000 350,000
Xxx Xxxxxxx 287,000 265,000
* Number indicates number of shares of common stock of Transphere that can
be purchased pursuant to the terms of the Options.
** Number indicates number of shares of common stock of the Company that can
be purchased pursuant to the terms of the Company Options.
9.
