SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT is made this 28 day of April 1998, by and
between Beechport Capital Corp., a Colorado corporation ("Beechport"),
Marketplace 2000, Inc., an Ohio corporation ("Marketplace"), Xxxxxxxx
Xxxxxxxxx ("Shareholder"), Xxxxxxx X. Xxxxxx. Xxxx X. Xxxxxx and Xxxxxx X.
Xxxxxx.
WHEREAS, Beechport desires to acquire all of the issued and outstanding
shares of common stock of Marketplace in exchange for an aggregate of 800,000
authorized but unissued restricted shares of the common stock, no par value,
of Beechport (the "Common Stock") the "Exchange Offer"); and
WHEREAS, Marketplace desires to assist Beechport in a business
combination which will result in the shareholders of Marketplace owning
approximately 50% of the then issued and outstanding shares of Beechport's
Common Stock, and Beechport holding 100% of the issued and outstanding shares
of Marketplace's common stock; and
WHEREAS, the share exchange contemplated hereby will result in the
Marketplace shareholders tendering all of the outstanding common stock of
Marketplace to Beechport in exchange solely for the Common Stock and no other
consideration, which the parties hereto intend to treat as a reorganization
under I.R.C. Section 368(a)(1)(B).
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
representations contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE 1
EXCHANGE OF SECURITIES
1.1 Issuance of Shares. Subject to all of the terms and conditions
of this Agreement, Beechport agrees to offer 10,000 shares of Common Stock for
each share of Marketplace common stock issued and outstanding, or a total of
800,000 shares of Beechport's Common Stock. The Common Stock will be issued
directly to the shareholders of Marketplace on the Closing, in the amounts set
forth on Schedule 1, which is attached hereto and incorporated herein by
reference.
1.2 Exemption from Registration. The parties hereto intend that the
Common Stock to be issued by Beechport to Marketplace shareholders shall be
exempt from the registration requirements of the Securities Act of 1933, as
amended (the "Act"), pursuant to Section 4(2) of the Act and the rules and
regulations promulgated thereunder.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF MARKETPLACE
Except as disclosed in Schedule 2 which is attached hereto and
incorporated herein by reference, Marketplace hereby represents and warrants
to Beechport that:
2.1 Organization. Marketplace is a corporation duly organized,
validly existing, and in good standing under the laws of Ohio, has all
necessary corporate powers to own its properties and to carry on its business
as now owned and operated by it, and is duly qualified to do business and is
in good standing in each of the jurisdictions where its business requires
qualification.
2.2 Capital. The authorized capital stock of Marketplace consists of
200 shares of Common Stock, of which 80 are currently issued and outstanding.
All of the issued and outstanding shares of Marketplace are duly authorized,
validly issued, fully paid, and nonassessable. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities, or other agreements or commitments obligating Marketplace to issue
or to transfer from treasury any additional shares of its capital stock of any
class.
2.3 Subsidiaries. Marketplace does not have any subsidiaries or own
any interest in any other enterprise (whether or not such enterprise is a
corporation).
2.4 Directors and Officers. Schedule 2 contains the names and titles
of all directors and officers of Marketplace as of the date of this Agreement.
2.5 Financial Statements. Marketplace has delivered to Beechport its
unaudited balance sheet as of April 15, 1998 (the "Financial Statements").
The Financial Statements are complete and correct in all material respects and
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated, however, the
financials are not presented in accordance with generally accepted accounting
principles. The Financial Statements accurately set out and describe the
financial condition of Marketplace as of April 15, 1998.
2.6 Absence of Changes. Since April 15, 1998, except for changes in
the ordinary course of business which have not in the aggregate been
materially adverse, to the best of Marketplace's knowledge, Marketplace has
conducted its business only in the ordinary course and has not experienced or
suffered any material adverse change in the condition (financial or
otherwise), results of operations, properties, business or prospects of
Marketplace or waived or surrendered any claim or right of material value.
2.7 Absence of Undisclosed Liabilities. Neither Marketplace nor any
of its properties or assets are subject to any material liabilities or
obligations of any nature, whether absolute, accrued, contingent or otherwise
and whether due or to become due, that are not reflected in the financial
statements presented to Beechport or have otherwise been disclosed to
Beechport.
2.8 Tax Returns. Within the times and in the manner prescribed by
law, Marketplace has filed all federal, state and local tax returns required
by law, or has filed extensions which have not yet expired, and has paid all
taxes, assessments and penalties due and payable.
2
2.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein,
Beechport and/or its attorneys shall have the opportunity to meet with
accountants and attorneys to discuss the financial condition of Marketplace.
Marketplace shall make available to Beechport and/or its attorneys all books
and records of Marketplace.
2.10 Trade Names and Rights. Marketplace does not use any trademark,
service xxxx, trade name, or copyright in its business, or own any trademarks,
trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications.
2.11 Compliance with Laws. Marketplace has complied with, and is not
in violation of, applicable federal, state or local statutes, laws and
regulations (including, without limitation, any applicable building, zoning or
other law, ordinance or regulation) affecting its properties or the operation
of its business, except for matters which would not have a material affect on
Marketplace or its properties.
2.12 Litigation. Marketplace is not a party to any suit, action,
arbitration or legal, administrative or other proceeding, or governmental
investigation pending or, to the best knowledge of Marketplace, threatened
against or affecting Marketplace or its business, assets or financial
condition, except for matters which would not have a material affect on
Marketplace or its properties. Marketplace is not in default with respect to
any order, writ, injunction or decree of any federal, state, local or foreign
court, department, agency or instrumentality applicable to it. Marketplace is
not engaged in any lawsuit to recover any material amount of monies due to it.
2.13 Authority. Marketplace has full corporate power and authority
to enter into this Agreement. The board of directors of Marketplace has taken
all action required to authorize the execution and delivery of this Agreement
by or on behalf of Marketplace and the performance of the obligations of
Marketplace under this Agreement. No other corporate proceedings on the part
of Marketplace are necessary to authorize the execution and delivery of this
Agreement by Marketplace in the performance of its obligations under this
Agreement. This Agreement is, when executed and delivered by Marketplace, and
will be a valid and binding agreement of Marketplace, enforceable against
Marketplace in accordance with its terms, except as such enforceability may be
limited by general principles of equity, bankruptcy, insolvency, moratorium
and similar laws relating to creditors' rights generally.
2.14 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by Marketplace of its obligations
under this Agreement, nor the consummation of the transactions contemplated
under this Agreement will to the best of Marketplace's knowledge: (a)
materially violate any provision of Marketplace's articles of incorporation or
bylaws; (b) with or without the giving of notice or the passage of time, or
both, violate, or be in conflict with, or constitute a material default under,
or cause or permit the termination or the acceleration of the maturity of, any
debt, contract, agreement or obligation of Marketplace, or require the payment
of any prepayment or other penalties; (c) require notice to, or the consent
of, any party to any agreement or commitment, lease or license, to which
Marketplace is bound; (d) result in the creation or imposition of any security
interest, lien, or other encumbrance upon any material property or assets of
Marketplace; or (e) violate any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which Marketplace
is bound or subject.
3
2.15 Full Disclosure. None of the representations and warranties
made by Marketplace herein, or in any schedule, exhibit or certificate
furnished or to be furnished in connection with this Agreement by Marketplace,
or on its behalf, contains or will contain any untrue statement of material
fact.
2.16 Assets. Marketplace has good and marketable title to all of its
tangible properties and such tangible properties are not subject to any
material liens or encumbrances.
2.17 Material Contracts and Obligations. Attached hereto on Schedule
2 is a list of all agreements, contracts, indebtedness, liabilities and other
obligations to which Marketplace is a party or by which it is bound that are
material to the conduct and operations of its business and properties, which
provide for payments to or by the Company in excess of $10,000; or which
involve transactions or proposed transactions between the Company and its
officers and directors. Copies of such agreements and contracts and
documentation evidencing such liabilities and other obligations have been made
available for inspection by Beechport and its counsel. All of such agreements
and contracts are valid, binding and in full force and effect in all material
respects, assuming due execution by the other parties to such agreements and
contracts.
2.18 Consents and Approvals. No consent, approval or authorization
of, or declaration, filing or registration with, any governmental or
regulatory authority is required to be made or obtained by Marketplace in
connection with: (a) the execution and delivery by Marketplace of this
Agreement; (b) the performance by Marketplace of its obligations under this
Agreement; or (c) the consummation by Marketplace of the transactions
contemplated under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BEECHPORT
Except as disclosed in Schedule 3 which is attached hereto and
incorporated herein by reference, Beechport represents and warrants to
Marketplace that:
3.1 Organization. Beechport is a corporation duly organized, valid
existing, and in good standing under the laws of Colorado, has all necessary
corporate powers to own properties and to carry on business, and it is not now
conducting any business, except to the extent to which the effecting of the
transaction contemplated by this Agreement constitutes doing business.
3.2 Capitalization. The authorized capital stock of Beechport
consists of 750,000,000 shares of no par value Common Stock of which 1,600,000
shares of Common Stock are currently issued and outstanding. All of the
issued and outstanding shares of Common Stock are duly authorized, validly
issued, fully paid and nonassessable. There are no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating Beechport to issue or to transfer from treasury any
additional shares of its capital stock of any class, except that there are
456,817 Class A Warrants (exercisable at $4.40 until September 25, 1998) and
456,817 Class B Warrants (exercisable at $6.60 until September 25, 1998)
outstanding.
4
3.3 Subsidiaries. Beechport does not presently have any subsidiaries
or own any interest in any other enterprise (whether or not such enterprise is
a corporation).
3.4 Directors and Officers. Schedule 3 contains the names and titles
of all directors and officers of Beechport as of the date of this Agreement.
3.5 Financial Statements. Beechport has delivered to Marketplace its
audited balance sheet and statements of operations and cash flows as of and
for the period ended December 31, 1997 (the "Financial Statements"). The
Financial Statements are complete and correct in all material respects and
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated. The Financial
Statements accurately set out and describe the financial condition and
operating results of the Company as of the dates, and for the periods,
indicated therein. The current liabilities of Beechport are set forth on
Schedule 2. As of the Closing, the total liabilities of Beechport shall not
exceed $20,000.
3.6 Absence of Changes. Since December 31, 1997, except for changes
in the ordinary course of business which have not in the aggregate been
materially adverse, to the best of Beechport's knowledge, Beechport has not
experienced or suffered any material adverse change in its condition
(financial or otherwise), results of operations, properties, business or
prospects or waived or surrendered any claim or right of material value.
3.7 Absence of Undisclosed Liabilities. To the best of Beechport's
knowledge, neither Beechport nor any of its properties or assets are subject
to any liabilities or obligations of any nature, whether absolute, accrued,
contingent or otherwise and whether due or to become due, that are not
reflected in the financial statements presented to Marketplace.
3.8 Tax Returns. Within the times and in the manner prescribed by
law, Beechport has filed all federal, state and local tax returns required by
law and has paid all taxes, assessments and penalties due and payable.
3.9 Investigation of Financial Condition. Without in any manner
reducing or otherwise mitigating the representations contained herein,
Marketplace shall have the opportunity to meet with Beechport's accountants
and attorneys to discuss the financial condition of Beechport. Beechport
shall make available to Marketplace all books and records of Beechport.
3.10 Trade Names and Rights. Beechport does not use any trademark,
service xxxx, trade name, or copyright in its business, or own any trademarks,
trademark registrations or applications, trade names, service marks,
copyrights, copyright registrations or applications.
3.11 Compliance with Laws. To the best of Beechport's knowledge,
Beechport has complied with, and is not in violation of, applicable federal,
state or local statutes, laws and regulations (including, without limitation,
any applicable building, zoning, or other law, ordinance, or regulation)
affecting its properties or the operation of its business.
3.12 Litigation. Beechport is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or governmental
investigation pending or, to the best knowledge of Beechport, threatened
against or affecting Beechport or its business, assets, or financial
condition. Beechport is not in default with respect to any order, writ,
5
injunction, or decree of any federal, state, local, or foreign court,
department agency, or instrumentality. Beechport is not engaged in any legal
action to recover moneys due to it.
3.13 No Prior or Pending Investigation. Beechport is not aware of
any prior or pending investigations or legal proceedings by the SEC, any state
securities regulatory agency, or any other governmental agency regarding
Beechport or any officers or directors of Beechport or any shareholders or
controlling persons of such shareholders.
3.14 Authority. Beechport has full corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. The Board of Directors of Beechport has taken all action
required to authorize the execution and delivery of this Agreement by or on
behalf of Beechport, the performance of the obligations of Beechport under
this Agreement and the consummation by Beechport of the transactions
contemplated under this Agreement. No other corporate proceedings on the part
of Beechport are necessary to authorize the execution and delivery of this
Agreement by Beechport in the performance of its obligations under this
Agreement. This Agreement is, and when executed and delivered by Beechport,
will be a valid and binding agreement of Beechport, enforceable against
Beechport in accordance with its terms, except as such enforceability may be
limited by general principles of equity, bankruptcy, insolvency, moratorium
and similar laws relating to creditors rights generally.
3.15 Ability to Carry Out Obligations. Neither the execution and
delivery of this Agreement, the performance by Beechport of its obligations
under this Agreement, nor the consummation of the transactions contemplated
under this Agreement will, to the best of Beechport's knowledge: (a) violate
any provision of Beechport's articles of incorporation or bylaws; (b) with or
without the giving of notice or the passage of time, or both, violate, or be
in conflict with, or constitute a default under, or cause or permit the
termination or the acceleration of the maturity of, any debt, contract,
agreement or obligation of Beechport, or require the payment of any prepayment
or other penalties; (c) require notice to, or the consent of, any party to any
agreement or commitment, lease or license, to which Beechport is bound; (d)
result in the creation or imposition of any security interest, lien or other
encumbrance upon any property or assets of Beechport; or (e) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority to which Beechport is bound or subject.
3.16 Validity of Beechport Shares. The shares of Beechport Common
Stock to be delivered pursuant to this Agreement, when issued in accordance
with the provisions of this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable.
3.17 Full Disclosure. None of the representations and warranties
made by Beechport herein, or in any exhibit, certificate or memorandum
furnished or to be furnished by Beechport, or on its behalf, contains or will
contain any untrue statement of material fact, or omit any material fact the
omission of which would be misleading.
3.18 Assets. Beechport does not have any assets.
3.19 Material Contracts and Obligations. Beechport has no material
contracts to which it is a party or by which it is bound.
6
3.20 Consents and Approvals. No consent, approval or authorization
of, or declaration, filing or registration with, any governmental or
regulatory authority is required to be made or obtained by Beechport in
connection with: (a) the execution and delivery by Beechport of its
obligations under this Agreement; (b) the performance by Beechport of its
obligations under this Agreement; or (c) the consummation by Beechport of the
transactions contemplated by this Agreement.
3.21 Real Property. Beechport does not own, use or claim any
interest in any real property, including without limitation any license,
leasehold or any similar interest in real property.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
4.1 Share Ownership. Shareholders hold 100% of the issued and
outstanding shares of Marketplace common stock. Such shares are owned of
record and beneficially by Shareholders, and such shares are not subject to
any lien, encumbrance or pledge, but they are restricted securities as defined
in Rule 144 of the Securities Act of 1933. Shareholders have the full and
requisite authority to exchange such shares pursuant to this Agreement.
4.2 Investment Intent. Shareholders understand and acknowledge that
the shares of Beechport Common Stock (the "Beechport Shares") are being
offered for exchange in reliance upon the exemption provided in Section 4(2)
of the Securities Act of 1933 (the "Securities Act") for non-public offerings;
and Shareholders make the following representations and warranties with the
intent that the same may be relied upon in determining the suitability of
Shareholders as purchasers of securities.
(a) The Beechport Shares are being acquired solely for the
account of Shareholders, for investment purposes only, and not with a view to,
or for sale in connection with, any distribution thereof and with no intention
of distributing or reselling any part of the Beechport Shares.
(b) Shareholders agree not to dispose of their Beechport Shares
or any portion thereof unless and until counsel for Beechport shall have
determined that the intended disposition is permissible and does not violate
the Securities Act or any applicable state securities laws, or the rules and
regulations thereunder.
(c) Shareholders acknowledge that Beechport has made all
documentation pertaining to all aspects of the Exchange Offer available to
them, and has offered such persons an opportunity to discuss the Exchange
Offer with the officers of Beechport.
(d) Shareholders have relied solely upon independent
investigations made by Shareholders.
(e) Shareholders are knowledgeable and experienced in making and
evaluating investments of this nature and desires to accept the Exchange Offer
on the terms and conditions set forth.
(f) Shareholders are able to bear the economic risk of an
investment, as a result of the Exchange Offer, in the Beechport Shares.
7
4.3 Indemnification. Shareholders recognize that the offer of the
Beechport shares to them are based upon their representations and warranties
set forth and contained herein and hereby agree to indemnify and hold harmless
Beechport against all liability, costs or expenses (including reasonable
attorney's fees) arising as a result of any misrepresentations made herein by
Shareholders.
4.4 Legend. Shareholders agree and acknowledge that the certificates
evidencing the Beechport Shares acquired pursuant to this Agreement will have
a legend placed thereon stating that the securities have not been registered
under the Act or any state securities laws and setting forth or referred to
the restrictions on transferability and sales of the Shares.
ARTICLE 5
COVENANTS
5.1 Investigative Rights. From the date of this Agreement until the
Closing Date, each party shall provide to the other party, and such other
party's counsels, accountants, auditors, and other authorized representatives,
full access during normal business hours and upon reasonable advance written
notice to all of each party's properties, books, contracts, commitments, and
records for the purpose of examining the same. Each party shall furnish the
other party with all information concerning each party's affairs as the other
party may reasonably request. If the transaction contemplated hereby is not
completed, all documents received by each party and/or its attorneys and
accountants, auditors or other authorized representatives shall be returned to
the other party who provided same upon request. The parties hereto, their
directors, employees, agents and representatives shall not disclose any of the
information described above unless such information is already disclosed to
the public, without the prior written consent of the party to which the
confidential information pertains. Each party shall take such steps as are
necessary to prevent disclosure of such information to unauthorized third
parties.
5.2 Conduct of Business. Prior to the Closing, Beechport and
Marketplace shall each conduct its business in the normal course, and shall
not sell, pledge, or assign any assets, without the prior written approval of
the other party, except in the regular course of business. Neither Beechport
nor Marketplace shall amend its Articles of Incorporation or Bylaws, declare
dividends, redeem or sell stock or other securities, incur additional or
newly-funded liabilities, acquire or dispose of fixed assets, change
employment terms, enter into any material or long-term contract, guarantee
obligations of any third party, settle or discharge any balance sheet
receivable for less than its stated amount, pay more on any liability than its
stated amount, or enter into any other transaction other than in the regular
course of business except as otherwise contemplated herein.
ARTICLE 6
CONDITIONS PRECEDENT TO BEECHPORT'S PERFORMANCE
6.1 Conditions. The obligations of Beechport hereunder shall be
subject to the satisfaction, at or before the Closing, of all the conditions
set forth in this Article 6. Beechport may waive any or all of these
conditions in whole or in part without prior notice; provided, however, that
no such waiver of a condition shall constitute a waiver by Beechport of any
other condition of or any of Beechport's other rights or remedies, at law or
in equity, if Marketplace shall be in default of any of their representations,
warranties, or covenants under this Agreement.
8
6.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by Marketplace in this
Agreement or in any written statement that shall be delivered to Beechport by
Marketplace under this Agreement shall be true and accurate on and as of the
Closing Date as though made at that time.
6.3 Performance. Marketplace shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by it, on or before the Closing
Date.
6.4 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Marketplace on or before the Closing Date.
ARTICLE 7
CONDITIONS PRECEDENT TO MARKETPLACE'S PERFORMANCE
7.1 Conditions. Marketplace's obligations hereunder shall be subject
to the satisfaction, at or before the Closing, of all the conditions set forth
in this Article 7. Marketplace may waive any or all of these conditions in
whole or in part without prior notice; provided, however, that no such waiver
of a condition shall constitute a waiver by Marketplace of any other condition
of or any of Marketplace's rights or remedies, at law or in equity, if
Beechport shall be in default of any of its representations, warranties, or
covenants under this Agreement.
7.2 Accuracy of Representations. Except as otherwise permitted by
this Agreement, all representations and warranties by Beechport in this
Agreement or in any written statement that shall be delivered to Marketplace
by Beechport under this Agreement shall be true and accurate on and as of the
Closing Date as though made at that time.
7.3 Performance. Beechport shall have performed, satisfied, and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed or complied with by them, on or before the Closing
Date.
7.4 Absence of Litigation. No action, suit or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this Agreement or to its consummation, shall have been
instituted or threatened against Beechport on or before the Closing Date.
7.5 Directors of Beechport. Effective on the Closing, Beechport
shall have fixed the size of its Board of Directors at four (4) persons, and
such Board of Directors shall include Xxxxxxx X. Xxxxxx, Xxxxxxxx Xxxxxxxxx,
Xxxxxx Xxxxxx, and Xxxxx Xxxxxxxx.
7.6 Officers of Beechport. Effective on the Closing, Beechport shall
have elected the following new Officers of Beechport:
Xxxxxxxx Xxxxxxxxx - President
9
ARTICLE 8
CLOSING
8.1 Closing. The Closing of this transaction shall be held at the
offices of Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C., 600 Seventeenth Street, Suite
0000 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, or such other place as shall be
mutually agreed upon, on such date as shall be mutually agreed upon by the
parties. At the Closing:
(a) Shareholders shall deliver duly endorsed certificates
representing their shares of Marketplace being exchanged for shares of
Beechport.
(b) Shareholders shall receive a certificate or certificates
representing the number of shares of Beechport Common Stock for which the
shares of Marketplace common stock shall have been exchanged.
(c) Beechport shall deliver a signed Consent and/or Minutes of
the Directors of Beechport approving this Agreement and each matter to be
approved by the Directors of Beechport under this Agreement.
(d) Marketplace shall deliver a signed Consent or Minutes of the
Directors of Marketplace approving this Agreement and each matter to be
approved by the Directors of Marketplace under this Agreement.
(e) Xxxxxxxx Xxxxxxxxx shall deliver a check or wire payable to
Xxxx Xxxxx Xxxxxxxx Xxxxx & Xxxxxx, P.C. Trust Account for $20,000 for the
purpose of contributing this amount to the capital of Beechport at the price
of $.25 per share.
(f) Beechport shall deliver a certificate to Xxxxxxxx Xxxxxxxxx
for 80,000 shares of Beechport's Common Stock.
ARTICLE 9
RIGHT OF FIRST REFUSAL
9.1 Xxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx,
shareholders of Beechport, hereby grant to Xxxxxxxx Xxxxxxxxx a right of first
refusal to purchase shares and Class A and Class B Warrants of Beechport they,
or the members of their immediate family, currently own (as reflected on the
transfer agent's shareholder list as of April 15, 1998) or control during the
two year period commencing on the Closing Date. Before any sales are made of
stock or warrants subject to this provision, the selling shareholder must
provide to Xxxxxxxxx written notice of his intent to sell and Xxxxxxxxx shall
have five business days to purchase the stock or warrants at the closing
market price on the date of the written notice. If Xxxxxxxxx does not
purchase the stock or warrants by the end of the five business days, the
shareholder will be free to sell the stock or warrants..
ARTICLE 10
MISCELLANEOUS
10.1 Captions 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.
10
10.2 No Oral Change. This Agreement and any provision hereof, may
not be waived, changed, modified, or discharged orally, but it can be changed
by an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
10.3 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 or 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.
10.4 Time of Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
10.5 Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
10.6 Choice of Law. This Agreement and its application shall be
governed by the laws of the State of Colorado, except to the extent its
conflict of laws provisions would apply the laws of another jurisdiction.
10.7 Notices. All notices, requests, demands, and other
communications under this Agreement shall be in 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 if mailed to
the party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows:
Beechport:
Beechport Capital Corp.
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
with a copy to:
Xxx X. Xxxxxx, Esq.
Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C.
600 Seventeenth Street, Suite 0000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Marketplace:
Marketplace 2000, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
with a copy to:
11
10.8 Binding Effect. This Agreement shall inure to and be binding
upon the heirs, executors, personal representatives, successors and assigns of
each of the parties to this Agreement.
10.9 Mutual Cooperation. The parties hereto shall cooperate with
each other to achieve the purpose of this Agreement, and shall execute such
other and further documents and take such other and further actions as may be
necessary or convenient to effect the transaction described herein.
10.10 Brokers. The parties hereto represent and agree that no broker
has brought about the aforementioned transaction and no finder's fee has been
paid or is payable by any party. Each of the parties hereto shall indemnify
and hold the other harmless against any and all claims, losses, liabilities or
expenses which may be asserted against it as a result of its dealings,
arrangements or agreements with any broker or person, except as described in
this paragraph.
10.11 Announcements. Beechport and Marketplace will consult and
cooperate with each other as to the timing and content of any announcements of
the transactions contemplated hereby to the general public or to employees,
customers or suppliers.
10.12 Expenses. Beechport and Marketplace will pay their own legal,
accounting and any other out-of-pocket expenses reasonably incurred in
connection with this transaction, whether or not the transaction contemplated
hereby is consummated.
10.13 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for hereinabove, including any
items referenced therein or required to be attached thereto. Any material
changes to the Exhibits shall be immediately disclosed to the other party.
AGREED TO AND ACCEPTED as of the date first above written.
BEECHPORT CAPITAL CORP. MARKETPLACE 2000, INC.
By /s/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxx, President Xxxxxxxx Xxxxxxxxx, President
SHAREHOLDER:
/s/ Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx
AS TO ARTICLE 9 ONLY:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
12
SCHEDULE 1
Stock Ownership of Marketplace and
Shares of Beechport to be Exchanged Therefor
Number of
Number of Beechport
Name of Shares Shares
Xxxxxxxx Xxxxxxxxx 80 800,000
Total 80 800,000
SCHEDULE 2
MARKETPLACE 2000, INC.
("Marketplace")
2.4 Directors and Officers of Marketplace:
Xxxxxxxx Xxxxxxxxx - President and Director
2.17 Material Contracts of Marketplace:
None.
SCHEDULE 3
BEECHPORT CAPITAL CORP.
("Beechport")
3.2 Directors and Officers of Beechport:
Xxxxxxx X. Xxxxxx - President, Secretary and Director
3.7 Liabilities of Beechport:
Xxxxxxxxxx & Associates $ 256.16 (plus audit)
Corporate Stock Transfer 1,573.51
Xxxx Xxxxx Xxxxxxxx & Xxxxxx, P.C. 2,457.32 (plus work on 10-K
and Marketplace
transaction)
Loan from Xxxxxx Family Partners 7,082.72
Total $11,369.71
3.19 Material Contracts of Beechport
None.
CERTIFICATE
I, Xxxxxxx X. Xxxxxx, President of Beechport Capital Corp. ("Beechport"),
on behalf of Beechport hereby certify as follows:
All of the representations and warranties, covenants and conditions made
by or on behalf of Beechport which are set forth in the Share Exchange
Agreement with Marketplace 2000, Inc. (the "Agreement") are true and correct
as of this date and that each of the conditions set forth in Sections 7.2
through 7.6 of the Agreement have been fulfilled as of this date.
Dated: June 30, 1998
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
Beechport Capital Corp.
CERTIFICATE
I, Xxxxxxxx Xxxxxxxxx, President of Marketplace 2000, Inc.
("Marketplace"), on behalf of Marketplace hereby certify as follows:
All of the representations and warranties, covenants and conditions made
by or on behalf of Marketplace which are set forth in the Share Exchange
Agreement with Beechport Capital Corp. (the "Agreement") are true and correct
as of this date and that each of the conditions set forth in Sections 6.2
through 6.4 of the Agreement have been fulfilled as of this date.
Dated: June 30, 1998
/s/ Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx, President
Marketplace 2000, Inc.
