Exhibit 10.11
EXCHANGE AGREEMENT
AGREEMENT, dated as of July 31, 2001, by and among XXXXXX ONLINE, INC.,
a Delaware corporation (the "Company"), IKON VENTURES, INC., a Nevada
corporation ("Ikon"), and GlobalNet Xxxxxxxxx.xxx, Inc., a _______corporation
("GNet").
WITNESSETH:
WHEREAS, Ikon, the Company and the stockholders of the Company have
entered into an Agreement and Plan of Share Exchange, dated as of June 19, 2001
(the "Agreement"), providing, among other things, for the exchange all of issued
and outstanding shares of the Company's common stock, par value $. 025 per share
(the "Company Common Stock"), for shares of Ikon's common stock, par value $.001
per share ("Ikon Common Stock"), all upon the terms and condition set forth
therein; and
WHEREAS, it is a condition precedent to the obligation of the parties
to consummate the transactions contemplated under the Agreement (the "Closing")
that all holders of promissory notes of the Company convert such notes into
shares of the Company's Common Stock; and
WHEREAS, GNet is the holder of the Company's convertible promissory
note, dated February 16, 2001, in the original principal amount of $525,000 (the
"Note"); and
WHEREAS, in lieu of converting the Note, GNet is willing to exchange
the Note for shares of exchangeable preferred stock of the Company on the terms
and conditions set forth herein,
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. Exchange of Note. Subject to the terms and conditions set forth
herein, GNet hereby agrees that simultaneous with the Closing, GNet will deliver
the original Note to the Company and in exchange therefore and in full payment
thereof (including any interest or other consideration due or to become due
under the Note) the Company agrees to deliver simultaneously to GNet a
certificate or certificates registered in the name of GNet representing 888,888
shares of the Company's Series A Exchangeable Preferred Stock (collectively, the
"Preferred Stock"). The Preferred Stock shall be issued pursuant to, and shall
be entitled to the rights, preferences and privileges set forth in, the
Certificate of Designation attached hereto as Exhibit A.
2. Release of Security. In consideration of the option to be granted
by Global Capital Partners, Inc. ("GCAP") referred to in Section 7(d) below,
simultaneous with the exchange provided for in Section 1 above, GNet agrees to
deliver to the Company the certificate(s) representing 250,000 shares of
restricted common stock of GCAP held be GNet as security for repayment of the
Note pursuant to a Pledge Agreement, dated February 16, 2001 (the "Pledge
Agreement"), and the Pledge Agreement shall then be deemed terminated and of no
further force or effect.
3. Representations of GNet. GNet represents and warrants to the
Company and Ikon as follows:
(a) GNet has full power and authority to execute and deliver this
Agreement and any other agreement or instrument contemplated by this Agreement
and to consummate the transactions contemplated hereunder. This Agreement has
been duly executed and delivered and is the valid and binding obligation of GNet
enforceable in accordance with its terms.
(b) GNet acknowledges that it has been advised that the Preferred
Stock , the shares of Ikon Common Stock issuable upon exchange of the Preferred
Stock, including the shares of Ikon Common Stock issuable upon exercise of the
warrants to purchase shares of Ikon Common Stock included as part of the
exchange (the "Exchange Shares") and/or the certificate(s) representing the
Preferred Stock and the Exchange Shares (i) will not, upon their issuance, be
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities law ("Blue sky Laws"), (ii) will be "restricted securities" as
defined in rule 144(a)(3) under the Act, (iii) have been issued in reliance on
statutory exemptions contemplated in the Blue Sky Laws and that the Company has
relied and Ikon will rely on the representations of GNet set forth herein in
issuing the Preferred Stock and the Exchange Shares, (iv) will not be
transferable without registration under the Act and/or applicable Blue Sky Laws,
unless an exemption from the registration requirement thereof is available and
an opinion of counsel to that effect is delivered to the Company or Ikon, as the
case may be, upon request by the Company or Ikon, and (v) will bear customary
restrictive legends evidencing such restrictions. Moreover, GNet has been
advised that (A) no public trading market exists or is likely to develop for the
Preferred Stock and (B) Rule 144 may not be available for resale of the Exchange
Shares unless Ikon remains a reporting issuer subject to the requirements of the
Securities Exchange Act of 1934, as amended, and Ikon files all required
information with the Securities and Exchange Commission (the "SEC").
(c) GNet is able to bear the economic risk of acquiring the
Preferred Stock and Exchange Shares, and consequently, without limiting the
generality of the foregoing, GNet is (i) able to hold any Preferred Stock or
Exchange Shares it may acquire for an indefinite period of time, and (b) has a
sufficient net worth to sustain a loss of its entire investment in the Preferred
Stock or the Exchange Shares.
(d) GNet is an "accredited investor" as defined in Regulation D
promulgated under the Act
(e) GNet understands that neither the U.S. SEC nor the securities
administrator of any state has made any finding or determination relating to the
fairness for investment of any Preferred Stock or Exchange Shares and that no
government agency has or will recommend or endorse any offering of the Preferred
Stock or Exchange Shares.
(f) GNet has received and examined all information, including
financial statements, of or concerning the Company and Ikon which GNet considers
necessary to making an informed decision regarding an acquisition of Preferred
Stock. In addition, GNet has had the opportunity to ask questions of, and
receive answers from, the officers and agents of the Company and Ikon concerning
the terms and conditions of the acquisition of the Preferred Stock and to obtain
such information, to the extent such persons possessed the same or could acquire
it without unreasonable effort or expense, as GNet deemed necessary to verify
the accuracy of the information referred to herein.
(g) GNet is acquiring Preferred Stock for its own account, for
investment purposes only, and not with a view to the resale or other
distribution thereof, in whole or in part, except in accordance with the Act.
GNet has not offered or sold any Preferred Stock and has no present intention of
dividing the Preferred Stock with others or reselling or otherwise disposing of
any Preferred Stock either currently or after the passage of a fixed or
determinable period of time, or upon the occurrence or nonoccurrence of any
predetermined event or circumstance.
4. Representations of the Company. The Company represents and
warrants to GNet as follows:
(a) The Company has full power and authority to execute and
deliver this Agreement and any other agreement or instrument contemplated by
this Agreement and to consummate the transactions contemplated hereunder. This
Agreement has been duly executed and delivered and is the valid and binding
obligation of the Company enforceable in accordance with its terms.
(b) The Preferred Stock, upon issuance, will be duly and validly
authorized and issued and will be fully paid and non-assessable.
5. Representations of Ikon. Ikon represents and warrants to GNet as
follows:
(a) Ikon has full power and authority to execute and deliver this
Agreement and any other agreement or instrument contemplated by this Agreement
and to consummate the transactions contemplated hereunder. This Agreement has
been duly executed and delivered and is the valid and binding obligation of Ikon
enforceable in accordance with its terms.
(b) The Exchange Shares have been duly authorized and when issued
upon exchange of the Preferred Stock in accordance with the terms thereof will
be duly and validly issued, fully paid and non-assessable.
6. Conditions Precedent. The obligations of the parties hereto to
consummate the transactions contemplated hereunder are subject to the
satisfaction of each of the following conditions:
(a) The Company shall have amended its Certificate of
Incorporation to authorize the issuance of Preferred Stock in such series and
with such rights, preferences and privileges as may be authorized by the
Company's board of directors.
(b) The Company's board of directors shall have approved and
authorized the filing of the Certificate of Designation with the Secretary of
State of Delaware and such filing shall have been made.
(c) The parties to the Agreement shall have executed and delivered
an amendment thereto waiving the provisions of Section 8.15 thereof with respect
to the conversion of the Note and shall have approved the transactions
contemplated under this Agreement.
(d) GCAP shall have granted GNet an option, exercisable on and
after the exchange of the Preferred Stock for the Exchangeable Shares, to
acquire 111,112 shares of restricted Xxxxxx Common Stock owned by GCAP for the
aggregate consideration of $1.00 and on such other terms and conditions as shall
be agreed between GCAP and GNet.
7. Miscellaneous.
(a) Each of the parties hereto agrees to use its best efforts to
bring about the satisfaction of the conditions precedent to the obligation of
the parties hereto to effect the consummation of the transactions contemplated
hereunder (to the extent that such satisfaction is dependent on the actions on
the part of the initial party of commission or omission) and to cause its
covenants and agreements contained in this Agreement to be satisfied and
performed hereunder.
(b) This Agreement and the agreements referred to herein and/or
executed in connection with the consummation of the transactions contemplated
herein contain the entire agreement among the parties with respect to the
subject matter hereunder and supersede all prior agreements, written or oral,
with respect thereto.
(c) This Agreement may be amended, superseded, canceled, renewed
or extended, and the terms hereof may be waived, only by a written instrument
signed by the parties or, in the case of a waiver, by the parties waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. Nor shall any waiver on
the part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege.
(d) This Agreement shall be governed and construed in accordance
with the laws of the State of New York, applicable to agreements made and to be
performed entirely within such State (without giving effect to conflicts of law
principles thereof).
(e) This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and legal representatives.
Nothing contained herein is intended or shall be construed as creating third
party beneficiaries to this Agreement. This Agreement is not assignable except
by operation of law.
(f) This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
Fascimile signatures shall be deemed originals for all purposes.
(g) The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
IKON VENTURES, INC. XXXXXX ONLINE, INC.
By: /s/ XXX XXXX By: /s/ XXXXXXXX X. XXXXXX
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Name: Xxx Xxxx Name: Xxxxxxxx X. Xxxxxx
Title: Chairman Title: Chief Executive Officer
GLOBALNET XXXXXXXXX.XXX, INC.
By: /s/ W. XXXXXX XXXXXXX
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Name: W. Xxxxxx Xxxxxxx
Title: President and CEO
CERTIFICATE OF DESIGNATION OF
RIGHTS, PREFERENCES AND LIMITATIONS
OF SERIES A EXCHANGEABLE PREFERRED STOCK OF
XXXXXX ONLINE, INC.
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Acting pursuant to Sections 151(a) and (g) of the Delaware General
Corporation Law, the undersigned hereby certifies that the Board of Directors of
Xxxxxx Online, Inc. (the "Company") duly approved the following Certificate of
Designation of Series A Exchangeable Preferred Stock of the Company, and that
the Certificate of Incorporation of the Company expressly authorizes the Board
to so designate and issue one or more series of preferred stock. The
designations, powers, preferences and relative, participating, optional or other
special rights, and the qualifications, limitations and restrictions thereof in
respect of the Series A Exchangeable Preferred Stock are as follows:
1. Number Of Shares; Par Value. The Company shall be authorized to
issue 888,888 shares of Series A Exchangeable Preferred Stock, par value $.025
per share (the "Series A").
2. Dividend Provisions. (a) The holders of shares of the Series A
shall not be entitled to receive dividends, except when and as lawfully declared
by the Company's Board Of Directors.
3. Rank. The Series A shall, with respect to rights on liquidation,
winding up and dissolution, rank prior to any other series of preferred stock
established by the Company's Board of Directors, any other equity securities of
the Company, including the common stock, par value $.025 per share, of the
Company (the "Common Stock"), and, without the prior consent of the holders of
the Series A (which will not be unreasonably be withheld or delayed), any debt
securities of the Company (excluding any trade creditors or other debt incurred
in the ordinary course of business); all such other securities to which the
Series A ranks prior are referred to herein as the "Junior Securities" .
4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the Company, either voluntary or involuntary, the holders of the Series A shall
be entitled to receive, prior and in preference to any distribution of any of
the assets of the Company to the holders of any Junior Securities by reason of
their ownership thereof, an amount per share equal to the sum of $.5906 for each
outstanding share of Series A (the "Issuance Price"). If upon the occurrence of
such event, the assets and funds thus distributed among the holders of the
Series A shall be insufficient to permit the payment to such holders of the full
aforesaid preferential amounts, then, the entire assets and funds of the Company
legally available for distribution shall be distributed ratably among the
holders of the Series A in proportion to the amount of such stock owned by each
such holder.
(b) For the purposes of this Section 4, neither the voluntary
sale, conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the property
or assets of the Company nor the consolidation or merger of the Company with one
or more other corporations shall be deemed to be a liquidation, dissolution or
winding up, voluntary or involuntary, unless such voluntary sale, conveyance,
lease, exchange or transfer shall be in connection with a dissolution or winding
up of the business of the Company.
5. Exchange
(a) Requirements.
The outstanding shares of Series A are exchangeable, in whole
at the option of the Company, into the Ikon Exchangeable Securities (as
hereinafter defined) at any time after Ikon Ventures, Inc., a Nevada corporation
("Ikon"), has raised the aggregate amount of $2,000,000 in capital (the "Capital
Raiseup"). The Capital Raiseup shall include (i) $100,000 that has been raised
by Ikon through the issuance of a convertible promissory note in the amount of
$100,000 which by its terms will be converted into 25,000 shares of Ikon common
stock upon the consummation of the acquisition by Ikon of all of the issued and
outstanding capital stock of the Company (the "Share Exchange") and (ii)
$400,000 that is being raised through the sale of 100,000 shares of Ikon common
stock at $4.00 per share prior to and as a condition of the Share Exchange. In
addition, the holder of the Series A shall have the right to exchange the Series
A, in whole, into the Ikon Exchangeable Securities at any time. As used herein,
"Ikon Exchangeable Securities" means (i) 888,888 shares of Ikon's common stock,
par value $.001 per share (the "Ikon Common Stock") and (ii) a warrant to
purchase 388,889 shares of Ikon Common Stock exercisable at any time and from
time to time until 5:00 P.M. (New York Time) on May 3, 2004, at $2.50 per share.
(b) Procedure for Exchange.
At least five (5) days and not more than thirty (30) days
prior to the date fixed for exchange, written notice (the "Exchange Notice")
shall be given by the party seeking to exchange the preferred stock, by
first-class mail, postage prepaid, to the Company. The Exchange Notice shall
state:
(1) the date fixed for exchange;
(2) that the Holder is to surrender to the Company, in the
manner and at the place or places designated, its certificate or
certificates representing the shares of Series A to be exchanged.
On or before the Exchange Date, each Holder of Series A shall
surrender the certificate or certificates representing such shares of Series A,
in the manner and at the place designated in the Exchange Notice. The Company
shall cause the Ikon Exchangeable Securities to be issued on the Exchange Date
and, upon surrender in accordance with the Exchange Notice of the certificates
for any shares of Series A so exchanged, duly endorsed (or otherwise in proper
form for transfer, as determined by the Company), such shares shall be exchanged
by the Company for the Ikon Exchangeable Securities.
(c) Conversion Price Adjustments for Certain Dilutive Issuances
If Ikon sells its common stock in the Capital Raiseup at an
average price per share less than $0.525, then the Series A shall be
exchangeable into (i) the number of shares of common stock of Ikon which will
result in the holder of the Series A receiving the shares of Ikon common stock
for the same consideration per share as the average consideration per share
received by Ikon in connection with the Capital Raiseup, minus (ii) 111,112
shares of Ikon common stock. If the Capital Raiseup shall include the sale by
Ikon of units consisting of common stock and warrants, no value (for the
purposes of computing average price per share) shall be attributed to the
warrants if the exercise price thereof on the date of issuance is equal to or
above the closing bid price of Ikon's common stock on the day immediately
preceding the issuance of the warrants.
(d) No Impairment.
The Company will not, by amendment of its Certificate of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed hereunder by the Company, but will
at all times in good faith assist in the carrying out of all the provisions of
this Section 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the conversion rights of the holders of the
Series A against impairment.
(e) No Fractional Shares and Certificate as to Adjustments.
No fractional shares shall be issued upon the exchange of any
share or shares of the Series A, and the number of shares of each component of
the Ikon Exchangeable Securities to be issued shall be rounded to the nearest
whole share.
(f) Notices. Any notice required by the provisions of this Section
5 to be given to the holders of shares of the Series A shall be deemed given if
deposited in the United States mail, postage prepaid, and addressed to each
holder of record at his or her address appearing on the books of the Company.
6. Voting Rights. The holders of Series A shall have the following
voting rights:
(a) Each share of Series A shall entitle the holder thereof to one
vote on all matters submitted to a vote of the Company's stockholders.
(b) Except as otherwise required by law, the holders of the Series
A and the holders of the Common Stock shall vote together as one class on all
matters submitted to a vote of the Company's stockholders.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
of Designation this 19th day of July, 2001.
XXXXXX ONLINE, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
ATTEST:
By: /s/ XXXXX XXXXXXX
-------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
