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EXHIBIT 10.1
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED
IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 29th day of February, 1996 by and between NEW
YORK ACQUISITIONS INC. ("ISSUER") and ONE UP CORPORATION (the "Target").
In consideration of the mutual promises, covenants and representations
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to the One Up Group and/or its designees
9,069,945 shares of the common stock of ISSUER, $0.01 par value (the "Shares"),
in exchange for 100% of the issued and outstanding shares of the Target. The
existing shareholders of the Target are collectively referred to in this
Agreement as the "One Up Group".
2. REPRESENTATIONS AND WARRANTIES.
ISSUER represents and warrants to Target and the One Up Group the
following:
i. Organization. ISSUER is a corporation duly organized validly
existing, and in good standing under the laws of, has all necessary corporate
powers to own properties and carry on a business, and is duly qualified to do
business and is in good standing in___________. All actions taken by the
Incorporators, directors and shareholders of ISSUER have been valid and in
accordance with the laws of the State of _______________.
ii. Capital. The authorized capital stock of ISSUER consists of
200,000,000 shares of common stock, no par value, of which 1,131,579
(including all shares issuable upon conversion of the Company's outstanding
Preferred Shares) are issued and outstanding. All outstanding shares are fully
paid and nonassessable, free of liens, encumbrances, options, restrictions and
legal or equitable rights of others not a party to this Agreement. At closing,
there will be no outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments obligating ISSUER to
issue or
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to transfer from treasury any additional shares of its capital stock. None of
the outstanding shares of ISSUER are subject to any stock restriction
agreements. All of the shareholders of ISSUER have valid title to such shares
and acquired their shares in a lawful transaction and in accordance with the
laws of the United States and and are fully paid, validly issued and
non-assessable.
iii. Financial Statements. Exhibit A to this Agreement includes
the balance sheet of ISSUER as of December 31 of 1993, 1994 and 1995, and the
related statements of income and retained earnings for the period then ended
(collectively, the "Financial Statements"). The Financial Statements have been
prepared in accordance with generally accepted accounting principles
consistently followed by ISSUER throughout the periods indicated, and fairly
present the financial position of ISSUER as of the date of the balance sheet in
the financial statements, and the results of its operations for the periods
indicated.
iv. Absence of Changes. Since December 31, 1995, there has not
been any change in the financial condition or operations of ISSUER.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected on the ISSUER's
Financial Statements. There are no pending, or to ISSUER'S best knowledge,
asserted or threatened claims, lawsuits or contingencies involving ISSUER or its
capital stock. There is no dispute of any kind between ISSUER and any third
party, and no such dispute will exist at the closing of this Agreement. At
closing, ISSUER will be free from any and all liabilities, liens, claims and/or
commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by ISSUER and the
performance by ISSUER of its obligations hereunder will not cause, constitute,
or conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or other agreement or
instrument to which ISSUER or its shareholders are a party, or by which they may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would cause ISSUER to be liable to any
party, or (a) an event that would result in the creation or imposition or any
lien, charge or encumbrance on any asset of ISSUER or upon the securities of
ISSUER to be acquired by TARGET.
vii. Full Disclosure. None of the representations and warranties
made by the ISSUER, or in any certificate or memorandum furnished or to be
furnished by the ISSUER, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not currently carrying on any
business and is not a party to any contract, agreement or lease. No person holds
a power of attorney from ISSUER.
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ix. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
x. Litigation. ISSUER is not (and has not been) a party to any
suit, action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best knowledge of the ISSUER, there
is no basis for any such action or proceeding and no such action or proceeding
is threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall
conduct its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any liabilities,
(5) acquire or dispose of any assets, enter into any contract, or guarantee
obligations of any third party, or (6) enter into any other transaction.
xii. Corporate Documents. Copies of each of the following
documents, which are true, complete and correct in all material respects, will
be attached to and made a part of this Agreement:
a. Articles of Incorporation;
b. Bylaws;
(1) Minutes of Shareholders Meetings;
(2) Minutes of Directors Meetings;
(3) List of Officers and Directors;
(4) Copy of all Correspondences and Reports filed with the
SEC.
(5) Balance Sheet as of December 31, 1995, together with
other financial statements described in Section 2.(iii);
(6) Stock register and stock records of ISSUER and a
current, accurate list of ISSUER's shareholders.
xiii. Documents. All minutes, consents or other documents
pertaining to ISSUER to be delivered at closing shall be valid and in accordance
with the laws of the United States and ___________________.
xiv. Title. The Shares to be issued to the One Up Group will be,
at closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind. None of such Shares are or
will be subject to any voting trust or agreement. No person holds or has the
right to receive any proxy or similar instrument with respect to such shares.
The ISSUER is not a party to any agreement which offers or grants to any person
the right to purchase or acquire any of the securities to be issued to TARGET.
There is no applicable local, state or federal law, rule, regulation, or decree
which would, as a result of the issuance of the Shares to the One Up Group,
impair, restrict or delay the One Up Group's voting rights with respect to the
Shares.
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3. Target represents and warrants to ISSUER the following:
i. Organization. Target is a corporation duly organized, validly
existing, and in good standing under the laws of Texas, has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in Texas. All actions taken by
the Incorporators, directors and shareholders of Target have been valid and in
accordance with the laws of the State of Texas.
ii. Shareholders and Issued Stock. The following sets forth the
names and share holdings of 100% of ONE UP CORPORATION'S shareholders and
shares:
Name Number of Shares
---- ----------------
Xxxxxxx Xxxx 1090
Xxxxx Xxxxxxxxx 60
Xxxx Xxxxxx 50
iii. Listing Stock for Trading. Upon closing, ISSUER shall take all
commercially reasonable steps necessary to get the ISSUER's common stock listed
for trading in NASD Automated Bulletin Board and to, as soon as practicably
possible, have the company listed with Standard and Poors or Moodys in their
Accelerated Corporate Report and to pay the fee for said listing.
4. INVESTMENT INTENT. Target agrees that the Shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecated or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to
an exemption from registration under the Act, the availability of which is to
be established to the reasonable satisfaction of ISSUER. Target agrees, prior
to any Transfer, to give written notice to ISSUER expressing his desire to
effect the transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at a time
and place mutually convenient for the parties. Unless the closing of this
transaction takes place on or before February ___, 1996, then either party may
terminate this Agreement. If this Agreement is terminated due to the failure of
the ISSUER to satisfactorily provide the documents specified below, there shall
be no further obligation or liability owing between the parties. As part of the
closing, the following documents, in form reasonably acceptable to counsel to
the parties, shall be delivered.
i. By the ISSUER
(1) Board of Directors Minutes duly authorizing the issuance of
certificates for 8,235,510 Shares registered in the name of Xxxxxxx Xxxx,
453,497 Shares registered in the name of Xxxxx Xxxxxxxxx, 380,938 Shares
registered in the name of Xxxx Xxxxxx, 400,000 shares to be issued pursuant to
a Form S-8 Ruling in the name of bona fide third-party consultants to be
designated by One Up at closing.
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(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as
TARGET designates as a director of ISSUER.
(4) The resignation of all the directors of ISSUER, except that
of Target's designee, dated subsequent to the resolution described in 3, above.
(5) Certified Audited financial statements of ISSUER, which
shall include a balance sheet dated as of December 31, 1995 and statements of
operations, stockholders equity and cash flows for the twelve month period then
ended.
(6) All of the business and corporate records of ISSUER,
including but not limited to correspondence files, bank statements, checkbooks,
savings account books, minutes of shareholder and directors meetings, financial
statements, shareholder listings, stock transfer records, agreements and
contracts.
(7) All other minutes of ISSUER's shareholders or directors.
(8) An Opinion Letter from our Attorney attesting to the
validity and condition of the ISSUER.
ii. BY TARGET:
(1) Delivery to the ISSUER of duly executed and authorized
Articles of Exchange and Plan of Exchange in material conformance with Texas
law to evidence the exchange of 100% of the issued and outstanding stock of
TARGET in accordance therewith and herewith.
6. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or
relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Dallas, Dallas County, Texas in
accordance with the Rules of the American Arbitration Association then
existing, and judgment on the arbitration award may be entered in any court
having jurisdiction over the subject matter of the controversy.
ii. Termination. In addition to any other remedies, TARGET may on
or before the closing date terminate this Agreement, without liability if:
(1) Any bonafide action or proceeding shall be pending against
the ISSUER on the closing date that could result in an unfavorable judgment,
decree, or order that would prevent or make unlawful the carrying out of this
Agreement or if any agency of the federal or of any state government shall have
objected at or before the closing date to the acquisition of the SHARES by
TARGET or to any other action required by or in connection with this Agreement;
or
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(2) If the legality and sufficiency of all steps taken and to be
taken by ISSUER in carrying out this Agreement shall not have been approved by
TARGET'S counsel, which approval shall not be unreasonably withheld.
7. MISCELLANEOUS.
i. Caption and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
ii. No Oral Change. This Agreement and any provision hereof, may
not be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future
of any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach of failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
iv. Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior written
or oral agreements and understandings.
v. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
vi. Notices. All notices, requests, demands, and other
communications under this Agreement shall be writing and shall be deemed to have
been duly given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing is if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified postage prepaid, and property addressed, and by fax, as follows:
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ISSUER: Xx. Xxxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Copy to: Xxxx X. Xxxxxxx, Esquire
0000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
The TARGET: Xxxxxxx Xxxx
0 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Copy to: Xxxxxxx X. Xxxxxxx
Xxxxxxx & Associates
000 Xxxx Xx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this
29th day of February, 1996.
NEW YORK ACQUISITIONS, INC. ONE UP CORPORATION
By: /s/ XXXXXXXX XXXXX By: /s/ XXXXXXX XXXX
------------------------- -------------------------
Xxxxxxxx Xxxxx, President Xxxxxxx Xxxx, President
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AGREEMENT OF CONSENT
I, Xxxxxxx X. Xxxxxx, owner of fifty (50) shares of Common Stock of
One Up Corporation ("One Up"), (such shares owned by me free and clear of all
liens, claims and encumbrances), hereby provide irrevocable consent to One Up
to enter into and perform all obligations under that certain Agreement for the
Exchange of Common Stock (the "Exchange Agreement") and such other documents as
may be necessary and appropriate to achieve the purposes and intent expressed
therein. I hereby acknowledge that I have been provided an opportunity to
review a draft of the Exchange Agreement and consult with advisors prior to
entering into this Agreement.
I hereby understand and agree that as a result of the transactions
described in the Exchange Agreement, all of the shares of Common Stock of One
Up that I own (i.e., fifty (50)), will be exchanged for 364,138 shares of
Common Stock of New York Acquisitions, Inc., a Florida corporation. I
understand and agree that none of the shares I receive of New York
Acquisitions, Inc. will be registered under federal or state securities laws. I
agree that any transfer of such shares must be in accordance with applicable
federal and state securities laws.
IN WITNESS WHEREOF, intending to be legally bound to the foregoing, I
hereby execute this Agreement of Consent to be effective as of this 26th day of
February, 1996.
/s/ XXXXXXX X. XXXXXX
---------------------------------
Xxxxxxx X. Xxxxxx
I, the spouse of Xxxxxxx X. Xxxxxx, hereby consent to the foregoing
and irrevocably waive any claim to the contrary.
---------------------------------
Spouse's Signature
---------------------------------
Print Name
---------------------------------
Date
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AGREEMENT OF CONSENT
I, H. Xxxxx Xxxxxxxxx, owner of sixty (60) shares of Common Stock of
One Up Corporation ("One Up"), (such shares owned by me free and clear of all
liens, claims and encumbrances), hereby provide irrevocable consent to One Up
to enter into and perform all obligations under that certain Agreement for the
Exchange of Common Stock (the "Exchange Agreement") and such other documents
as may be necessary and appropriate to achieve the purposes and intent
expressed therein. I hereby acknowledge that I have been provided an
opportunity to review a draft of the Exchange Agreement and consult with
advisors prior to entering into this Agreement.
I hereby understand and agree that as a result of the transactions
described in the Exchange Agreement, all of the shares of Common Stock of One
Up that I own (i.e. sixty (60)), will be exchanged for 453,497 shares of Common
Stock of New York Acquisitions, Inc., a Florida corporation. I understand and
agree that none of the shares I receive of New York Acquisitions, Inc. will be
registered under federal or state securities laws. I agree that any transfer of
such shares must be in accordance with applicable federal and state securities
laws.
IN WITNESS WHEREOF, intending to be legally bound to the foregoing, I
hereby execute this Agreement of Consent to be effective as of this 29th day of
February, 1996.
/s/ H. XXXXX XXXXXXXXX
---------------------------------
H. Xxxxx Xxxxxxxxx
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AGREEMENT OF CONSENT
I, Xxxxxxx X. Xxxx, owner of one thousand ninety (1090) shares of
Common Stock of One Up Corporation ("One Up"), (such shares owned by me free
and clear of all liens, claims and encumbrances), hereby provide irrevocable
consent to One Up to enter into and perform all obligations under that certain
Agreement for the Exchange of Common Stock (the "Exchange Agreement") and such
other documents as may be necessary and appropriate to achieve the purposes and
intent expressed therein. I hereby acknowledge that I have been provided an
opportunity to review a draft of the Exchange Agreement and consult with
advisors prior to entering into this Agreement.
I hereby understand and agree that as a result of the transactions
described in the Exchange Agreement, all of the shares of Common Stock of One
Up that I own (i.e. one thousand ninety (1090)), will be exchanged for
8,235,510 shares of Common Stock of New York Acquisitions, Inc., a Florida
corporation. I understand and agree that none of the shares I receive of New
York Acquisitions, Inc. will be registered under federal or state securities
laws. I agree that any transfer of such shares must be in accordance with
applicable federal and state securities laws.
IN WITNESS WHEREOF, intending to be legally bound to the foregoing, I
hereby execute this Agreement of Consent to be effective as of this 29th day of
February, 1996.
/s/ XXXXXXX X. XXXX
---------------------------------
Xxxxxxx X. Xxxx
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ARTICLES OF EXCHANGE
Pursuant to Article 5.04 of the Texas Business Corporation Act, as
amended, the undersigned domestic corporations hereby adopt the following
Articles of Exchange for the purpose of exchanging their shares of stock:
1. The names of the undersigned corporations are as follows:
Name of Corporation
One Up Corporation, a Texas corporation
New York Acquisitions, Inc., a Florida corporation
2. The Plan of Exchange dated as of February 29, 1996 (the "Plan"), a
copy of which is attached as Exhibit A hereto, was approved by the shareholders
of One Up Corporation in the manner prescribed by the Texas Business
Corporation Act, as amended (the "Act"). Shareholder approval is not required
for New York Acquisitions, Inc. under Article 5.03 of the Act.
3. The number of shares outstanding and entitled to vote on the Plan
for One Up Corporation is:
No. of Shares
No. of Shares Entitled
Outstanding to Vote
------------- -------------
One Up Corporation 1,000 1,000
One Up Corporation has only one class of capital stock outstanding.
4. The number of shares voted for and against the Plan are:
Voted For Voted Against Abstain
--------- ------------- -------
One Up Corporation 950 0 50
No shares of One Up Corporation were entitled to vote as a class or a series
with respect to the Plan.
5. The approval by One Up Corporation of the Plan and the performance
of its terms was duly authorized by all action required by the State of Texas
and its constituent documents.
6. The approval by New York Acquisition, Inc. of the Plan and the
performance of its terms was duly authorized by all action required by the laws
of the State of Florida and its constituent documents.
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IN WITNESS WHEREOF, each of the undersigned corporations has caused
these Articles of Exchange to be executed by and on its behalf and in its
corporate name as of February 29, 1996.
ONE UP CORPORATION
a Texas corporation
By: /s/ XXXXXXX XXXX
----------------------------------
Xxxxxxx Xxxx, President
NEW YORK ACQUISITIONS, INC.
a Florida corporation
By: /s/ XXXXXXXX X. XXXXX
-------------------------------
Print Name: Xxxxxxxx X. Xxxxx
-----------------------
Its: President
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EXHIBIT A
PLAN OF EXCHANGE
This Plan of Exchange (the "Plan") dated as of February 29, 1996, is
entered into by and between One Up Corporation, a Texas corporation, and New
York Acquisitions, Inc., a Florida corporation.
R E C I T A L S:
WHEREAS, One Up Corporation is a corporation duly organized and
validly existing under the laws of the State of Texas;
WHEREAS, New York Acquisitions, Inc. is a corporation duly organized
and validly existing under the laws of the state of Florida;
WHEREAS, the Boards of Directors of One Up Corporation and New York
Acquisitions, Inc. deem it advisable, and for the benefit and in the best
interest of their respective corporations and shareholders, that such
corporations (sometimes collectively referred to herein as the "Exchanging
Corporations") effect an exchange of shares (the "Exchange") upon the terms and
conditions set forth in this Plan and pursuant to the applicable laws of the
State of Texas; and
WHEREAS, all necessary shareholder or other approvals have been
received by the Exchanging Corporations.
In accordance with Article 5.02 of the Texas Business Corporation Act,
as amended, the Plan of Exchange is as follows:
ARTICLE ONE
1.01. All of the shares of stock of One Up Corporation will be
acquired by New York Acquisitions, Inc.
1.02 The terms and conditions for the exchange of all of the shares of
stock of One Up Corporation shall be that in return for its shares One Up
Corporation will receive 9,069,945 shares of the Common Stock of New York
Acquisition, Inc.
1.03 The manner and basis of exchanging the share of One Up
Corporation shall result in each of the issued and outstanding shares of One Up
Corporation held by its shareholders immediately prior to the Effective Time of
the Exchange, by virtue of the Exchange and without the necessity of any action
on the part of the shareholders of One Up Corporation shall be converted into
7558.2875 shares of Common Stock of New York Acquisitions, Inc. and no cash,
securities or other property shall be issued in the
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Exchange. No fractional shares of stock will be issued in the Exchange.
ARTICLE TWO
2.01. The Exchange shall become effective (hereinbefore and hereinafter
called the "Effective Time of the Exchange") upon the filing with the Secretary
of State of the State of Texas of Articles of Exchange with respect to the
Exchange and the issuance by the Secretary of State of the State of Texas of a
Certificate of Exchange pursuant to Article 5.04 of the Texas Business
Corporation Act, as amended.
ARTICLE THREE
3.01. The Boards of Directors of the Exchange Corporations may, in
their sole discretion, abandon the Exchange, subject to the right of third
parties under any contracts relating thereto, without any action or approval
from the shareholders of their respective corporations, at any time before the
Effective Time of the Merger, as provided by the laws of the State of Texas.
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