EXHIBIT 99.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT is made June 16, 2004, by and between
Xxxx.Xxx, Inc., a Nevada corporation ("Xxxx.Xxx"), and the board of directors of
Pluto Communications International A.S., a Norwegian company ("Pluto") and
additionally requires the acceptance by the Pluto Shareholders at a shareholder
meeting to be held no later than June 24, 2004 by execution of an acceptance by
each Shareholder in accordance with Section 5.4 below no later than June 28,
2004.
WHEREAS, Xxxx.Xxx desires to acquire all of the issued and outstanding
shares of common stock of Pluto in exchange for an aggregate of 5,010,495
authorized but unissued restricted shares of the common stock, $.001 par value,
of Xxxx.Xxx (the "Common Stock") (the "Exchange Offer"); and
WHEREAS, Pluto desires to assist Xxxx.Xxx in a business combination which
will result, if Pluto's shareholders desire to participate, in Xxxx.Xxx holding
100%of the issued and outstanding shares of Pluto's common stock; and
WHEREAS, the voluntary share exchange contemplated hereby will result in
the Pluto shareholders tendering all or substantially all of the outstanding
common stock of Pluto to Xxxx.Xxx in exchange SOLELY for the Common Stock and no
other consideration, which the parties hereto intend to treat as a tax free
exchange of shares under U.S. Internal Revenue Code 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, Xxxx.Xxx agrees to offer 2.1 shares of Common Stock
for each share of Pluto common stock issued and outstanding, or a
total of 5,010,495 shares of Xxxx.Xxx's Common Stock. The Common
Stock will be issued directly to the shareholders of Pluto who
accept the Exchange Offer.
1.2 Exemption from Registration. The parties hereto intend that the
Common Stock to be issued by Xxxx.Xxx to Pluto 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. Within 90 days
of closing, Cyco shall file with the SEC to register the shares that
will have been exchanged hereunder and will endeavor to complete
such registration in a timely manner. It is understood by the
parties that such registration may take approximately 90 to 12 days,
but thisd is not in the control of Cyco.
1.3 Investment Intent. Prior to the consummation of the Exchange Offer,
the shareholders of Pluto accepting the Exchange Offer shall execute
Letters of Acceptance and such other documents containing, among
other things, representations and warranties relating to investment
intent and investor status, restrictions on transferability and
restrictive legends such that the counsel for both Xxxx.Xxx and
Pluto shall be satisfied that the offer and sale of Xxxx.Xxx shares
as contemplated by this Agreement shall be exempt from the
registration requirements of the Act and any applicable state blue
sky laws.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF PLUTO
Except as disclosed in Schedule 2 which is attached hereto and
incorporated herein by reference, Pluto hereby represents and warrants to
Xxxx.Xxx that:
2.1 Organization. Pluto is a Corporation duly organized, validly
existing, and in good standing under the laws of Norway, 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 Pluto consists of 2,385,950
shares of Common Stock. All of the issued and outstanding shares of
Pluto are duly authorized, validly issued, fully paid, and
nonassessable. Except as set forth in Schedule 2, there are no
outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities, or other agreements or
commitments obligating Pluto to issue any additional shares of its
capital stock of any class.
2.3 Subsidiaries. Pluto does not have any subsidiaries or own any
interest in any other enterprise (whether or not such enterprise is
a corporation) except as disclosed in Schedule 2.
2.4 Directors and Officers. Schedule 2 contains the names and titles of
all directors and officers of Pluto ------------------------ as of
the date of this Agreement.
2.5 Financial Statements. Pluto has delivered to Xxxx.Xxx its audited
balance sheet and statement of operations for the period ended
December 31, 2003 and its unaudited balance sheet and statement of
operations as of and for the period through April 30, 2004 (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
of the Company as of April 30, 2004.
2.6 Absence of Changes. Since April 30, 2004, except for changes in the
ordinary course of business which have not in the aggregate been
materially adverse, to the best of Pluto's knowledge, Pluto 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 Pluto or waived or surrendered any claim or
right of material value.
2.7 Absence of Undisclosed Liabilities. Neither Pluto 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 Xxxx.Xxx or have otherwise
been disclosed in writing to Xxxx.Xxx.
2.8 Tax Returns. Within the times and in manner prescribed by law, Pluto
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.
2.9 Investigation of Financial Condition. Without in any manner reducing
or otherwise mitigating the representations contained herein,
Xxxx.Xxx and/or its attorneys shall have the opportunity to meet
with accountants and attorneys to discuss the financial conditions
of Pluto. Pluto shall make available to Xxxx.Xxx and/or its
attorneys all books and records of Pluto.
2.10 Trade Names and Rights. Schedule 2 sets forth a complete and
accurate schedule of (i) all registered trademarks and service marks
and all trademark and service xxxx applications, including country
of filing, filing number, date of issue and expiration date used in
the business of Pluto; and (ii) all registered copyrights of
property owned by Pluto. Except as set forth in such schedule, to
Pluto's knowledge, no third party has asserted, or threatened to
assert against Pluto or any of its officers or directors any
conflicting rights to any intellectual property and Pluto has no
knowledge of facts that Pluto believes could reasonably be expected
to give rise to such a claim.
2.11 Compliance with Laws. To the best of Pluto's knowledge, Pluto 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 an material affect
on Pluto or its properties.
2.12 Litigation. Pluto is not party to any suit, action, arbitration or
legal, administrative or other proceeding, or governmental
investigation pending or, to the best knowledge of Pluto, threatened
against or affecting Pluto or its business, assets or financial
condition, except for matters which would not have a material affect
on Pluto or its properties. Pluto 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. Pluto is not engaged in any lawsuit to recover any material
amount of monies due to it.
2.13 Authority. Pluto has full corporate power and authority to enter
into this Agreement. The board of directors of Pluto has taken all
action required to authorize the execution and delivery of this
Agreement by or on behalf of Pluto and the performance of the
obligations of Pluto under this Agreement. No other corporate
proceedings on the part of Pluto are necessary to authorize the
execution and delivery of this Agreement by Pluto in the performance
of its obligations under this Agreement. This Agreement is, when
executed and delivered by Pluto, and will be a valid and binding
agreement of Pluto, enforceable against Pluto 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 Pluto of its obligations under
this Agreement, nor the consummation of the transactions
contemplated under this Agreement will to the best of Pluto's
knowledge; (a) materially violate any provision of Pluto's articles
of incorporation or bylaws; (b) with or without the giving 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 Pluto, 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 Pluto is bound; (d) result in the creation or
imposition of any security interest, lien, or other encumbrance upon
any material property or assets of Pluto; or (e) violate any
material statute or law or any judgment, decree, order, regulation
or rule of any court or governmental authority to which Pluto is
bound or subject.
2.15 Full Disclosure. None of the representations and warranties made by
Pluto herein, or in any schedule, exhibit or certificate furnished
or to be furnished in connection with this Agreement by Pluto, or on
its behalf, contains or will contain any untrue statement of
material fact.
2.16 Assets. Pluto has good and marketable title to all its tangible
properties and such tangible properties are not subject to any
material liens or encumbrances except as disclosed in the financial
statements.
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 Pluto 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 50,000 NOK; or which involve transactions or proposed
transactions between the Company and its officers, directors,
affiliates or any affiliate thereof. Copies of such agreements and
contracts and documentation evidencing such liabilities and other
obligations have been made available for inspection by Xxxx.Xxx 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 Pluto in
connection with; (a) the execution and delivery by Pluto of this
Agreement; (b) the performance by Pluto of its obligations under
this Agreement; or (c) the consummation by Pluto of the transactions
contemplated under this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF XXXX.XXX
Except as disclosed in Schedule 3 which is attached hereto and
incorporated herein by reference, Xxxx.Xxx represents and warrants to Pluto
that:
3.1 Organization. Xxxx.Xxx is a corporation duly organized, valid
existing, and in good standing under the laws of Nevada, has all
necessary corporate powers to own properties and to carry on
business.
3.2 Capitalization. The authorized capital stock of Xxxx.Xxx consists of
100,000,000 shares of $.001 par values Common Stock of which
[approximately 87,000,000] 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 Xxxx.Xxx to issue or to transfer from
treasury any additional shares of its capital stock of any class.
3.3 Subsidiaries. Xxxx.Xxx currently has two wholly owned subsidiaries
which are set forth in Schedule 3. -------------
3.4 Directors and Officers. Schedule 3 contains the names and titles of
all directors and officers of ------------------------- Xxxx.Xxx as
of the date of this Agreement.
3.5 Financial Statements. Xxxx.Xxx has delivered to Pluto its audited
balance sheet and statements of operations and cash flows as of and
for the period ended December 31, 2003 and its unaudited balance
sheet and statements of operations and cash flows as of and for the
period ended March 31, 2004 (collectively 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 specified dates, and for
the periods, indicated therein.
3.6 Absence of Changes. Since December 31, 2003, except for changes in
the ordinary course of business which have not in the aggregate been
materially adverse, to the best of Xxxx.Xxx's knowledge, Xxxx.Xxx
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. Neither Xxxx.Xxx 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 Pluto.
3.8 Tax Returns. Within the times and in the manner prescribed by law,
Xxxx.Xxx 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, Pluto
shall have the opportunity to meet with Xxxx.Xxx's accountants and
attorneys to discuss the financial condition of Xxxx.Xxx. Xxxx.Xxx
shall make available to Pluto all books and records of Xxxx.Xxx.
3.10 Compliance With Laws. To the best of Xxxx.Xxx's knowledge, Xxxx.Xxx
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 or with which it is otherwise required to comply.
3.11 Litigation. Xxxx.Xxx 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
Xxxx.Xxx, threatened against or affecting Xxxx.Xxx or its business,
assets, or financial condition, except as set forth in Schedule 3.
Xxxx.Xxx 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. Xxxx.Xxx is not engaged in
any legal action to recover moneys due to it.
3.12 No Pending Investigation. Xxxx.Xxx is not aware of any pending
investigations or legal proceedings by the SEC, any state securities
regulatory agency, or any other governmental agency regarding
Xxxx.Xxx or any officers or directors of Xxxx.Xxx or any
shareholders or controlling persons of such shareholders.
3.13 Authority. Xxxx.Xxx 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 Xxxx.Xxx has taken all
action required to authorize the execution and delivery of this
Agreement by or on behalf of Xxxx.Xxx, the performance of the
obligations of Xxxx.Xxx under this Agreement and the consummation by
Xxxx.Xxx of the transactions contemplated under this Agreement. No
other corporate proceedings on the part of Xxxx.Xxx are necessary to
authorize the execution and delivery of this Agreement by Xxxx.Xxx
in the performance of its obligation under this Agreement. This
Agreement is, and when executed and delivered by Xxxx.Xxx, will be
valid and binding agreement of Xxxx.Xxx, enforceable against
Xxxx.Xxx 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.
3.14 Ability to Carry Out Obligations. Neither the execution and delivery
of this Agreement, the performance by Xxxx.Xxx of its obligations
under this Agreement, nor the consummation of the transactions
contemplated under this Agreement will, to the best of Xxxx.Xxx's
knowledge: (a) violate any provision of Xxxx.Xxx'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 Xxxx.Xxx, 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
Xxxx.Xxx is bound; (d) result in the creation or imposition of any
security interest, lien or other encumbrance upon any property or
assets of Xxxx.Xxx; or (e) violate any statute or law or any
judgment, decree, order, regulation or rule of any court or
governmental authority to which Xxxx.Xxx is bound or subject.
3.15 Validity of Xxxx.Xxx Shares. The Shares of Xxxx.Xxx 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.
3.16 Full Disclosure. None of the representations and warranties made by
Xxxx.Xxx herein, or in any exhibit, certificate or memorandum
furnished or to be furnished by Xxxx.Xxx, 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.
3.17 Assets. Xxxx.Xxx has good and marketable title to all its tangible
properties and such tangible properties are not subject to any
material liens or encumbrances except as disclosed in the financial
statements.
3.18 Material Contracts and Obligations. Attached hereto on Schedule 2 is
a list of all agreements, contracts, indebtedness, liabilities and
other obligations to which Xxxx.Xxx 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 US$40,000; or which involve transactions or
proposed transactions between the Company and its officers,
directors, affiliates or any affiliate thereof. Copies of such
agreements and contracts and documentation evidencing such
liabilities and other obligations have been made available for
inspection by Xxxx.Xxx 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.
3.19 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 Xxxx.Xxx
in connection with: (a) the execution and delivery by Xxxx.Xxx of
its obligations under this Agreement; (b) performance by Xxxx.Xxx of
its obligations under this Agreement; or (c) the consummation by
Xxxx.Xxx of the transactions contemplated by this Agreement.
ARTICLE 4
COVENANTS
4.1 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.
4.2 Conduct of Business. Prior to the Closing, Xxxx.Xxx and Pluto shall
each conduct its business in the normal course, and shall not sell,
pledge, or assign any assets, without prior written approval of the
other party, except in the regular course of business or as
contemplated in previously disclosed contractual obligations. Pluto
shall not 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 5
CONDITIONS PRECEDENT TO XXXX.XXX'S PERFORMANCE
5.1 Conditions. The obligations of Xxxx.Xxx hereunder shall be subject
to the satisfaction, at or before the Closing, of all the conditions
set forth in this Article 5. Xxxx.Xxx 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 Xxxx.Xxx of any other condition of or any of Xxxx.Xxx's
other rights or remedies, at law or in equity, if Pluto shall be in
default of any of their representations, warranties, or covenants
under this Agreement.
5.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Pluto in this
Agreement or in any written statement that shall be delivered to
Xxxx.Xxx by Pluto under this Agreement shall be true and accurate on
and as of the Closing Date as though made at that time.
5.3 Performance. Pluto 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.
5.4 Acceptance by Pluto Shareholders. The holders of not less than 91%
of the issued and outstanding shares of common stock of Pluto shall
have agreed to exchange their shares for shares of Xxxx.Xxx Common
Stock. If holders of at least 91% of the issued and outstanding
shares of common stock of Pluto do not agree to exchange their
shares for shares of Xxxx.Xxx Common Stock, then Xxxx.Xxx shall have
the option of terminating this agreement in its entirety or of
waiving this condition and completing an exchange with the accepting
Pluto shareholders.
5.5 Employment Agreements for Employees of Pluto. On or before the
Closing Date, Svein Xxxx Sauskanjger, Xxxxx Xxxxxxxx, Symmoeve
Skjelbreid, Stian Sjeldstad and Xxxxx Xxxxxxxxxxx Xxxxxxx shall have
entered into employment agreements with Pluto which are satisfactory
to Xxxx.Xxx.
5.5 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 Pluto on or before
the Closing.
5.6 Officers's Certificate. Pluto shall have delivered to Xxxx.Xxx a
certificate, dated the Closing Date, and signed by the Chief
Executive Officer of Pluto, certifying that each of the conditions
specified in Sections 5.2 trough 5.5 hereof have been fulfilled.
ARTICLE 6
CONDITIONS PRECEDENT TO PLUTO'S PERFORMANCE
6.1 Conditions. Pluto's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set
forth in this Article 6. Pluto 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 Pluto of any other condition of or any of Pluto's rights
or remedies, at law or in equity, if Xxxx.Xxx shall be in default of
any of its representations, warranties, or covenants under this
Agreement.
6.2 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by Xxxx.Xxx in this
Agreement or in any written statement that shall be delivered to
Pluto by Xxxx.Xxx under this Agreement shall be true and accurate on
and as of the Closing Date as though made at the time.
6.3 Performance. Xxxx.Xxx 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.
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 Xxxx.Xxx on or
before the Closing Date.
6.5 Officers' Certificate. Xxxx.Xxx shall have delivered to Pluto a
certificate, dated the Closing date and signed by the President of
Xxxx.Xxx certifying that each of the conditions specified in
Sections 6.2 through 6.7 have been fulfilled.
ARTICLE 7
CLOSING
7.1 Closing. The Closing of this transaction shall be held at the
offices of Xxxx.Xxx, XxXxxxx Virginia, USA, or such other place as
shall be mutually agreed upon, on such date as shall be mutually
agreed upon by the parties, but in no event shall the Closing be
later than [4 WEEKS AFTER ACCEPTANCE BY PLUTO SHAREHOLDERS ] July
31, 2004. At the Closing:
7.2 Pluto shall deliver Letters of Acceptance and the certificates
representing the shares of Pluto held by the shareholders of Pluto
accepting the Exchange Offer ("Accepting Shareholders") to Xxxx.Xxx.
7.3 Each Accepting Shareholder shall receive a certificate or
certificates representing the number of shares of Xxxx.Xxx Common
Stock for which the shares of Pluto common stock shall have been
exchanged.
7.4 Xxxx.Xxx shall deliver an officer's certificate, as described in
Section 6.8 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth in
this Agreement on behalf of Xxxx.Xxx are true and correct as of, or
have been fully performed and complied with by, the Closing Date.
7.5 Xxxx.Xxx shall deliver a signed Consent and/or Minutes of the
Directors of Xxxx.Xxx approving this Agreement and each matter to be
approved by the Directors of Xxxx.Xxx under this Agreement.
7.6 Pluto shall deliver an officer's certificate, as described in
Section 5.6 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth in
this Agreement on behalf of Pluto are true and correct as of, or
have been fully performed and complied with by, the Closing Date.
7.7 Pluto shall deliver a signed Consent or Minutes of the Directors of
Pluto approving this Agreement and each matter to be approved by the
Directors of Pluto under this Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 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.
8.2 No Oral Change. This Agreement and any provision hereof, many 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.
8.3 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.
8.4 Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
8.5 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
8.6 Choice of Law. This Agreement and its application shall be governed
by the laws of the State of Virginia, USA except to the extent its
conflict of laws provisions would apply the laws of another
jurisdiction.
8.7 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 being given, by
first class mail, registered or certified, postage prepaid, and
properly addressed as follow:
Xxxx.Xxx:
Xxxx.Xxx, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
XXX
Pluto:
Pluto Communications International A S
Xxxxxxxxxxxx 00, 0000 Xxxxxx
Xxxxxx
8.8 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.
8.9 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 further actions
as may be necessary or convenient to effect the transaction
described herein.
8.10 Brokers. The parties hereto represent and agree that no broker has
brought about the aforementioned transaction.
8.11 Announcements. Xxxx.Xxx and Pluto 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.
8.12 Expenses. Pluto and Xxxx.Xxx will pay their own expenses reasonably
incurred in connection with this transaction.
8.13 Exhibits. As of the execution hereof, the parties hereto have
provided each other with the Exhibits provided for herein above,
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.
XXXX.XXX INC. PLUTO COMMUNICATIONS INTERNATIONAL AS
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxx Xxxxxxxx
--------------------------------- --------------------------------
President/CEO Chairman
SCHEDULE 2
PLUTO
("Pluto")
2.2 Capital. [DESCRIPTION OF OPTION PLAN CURRENTLY IN PLACE]
2.4 The Officers and Directors of Pluto are as follows:
Name Position
2.10 Trade Names and Rights:
2.17 Material Contracts and Obligations.
SCHEDULE 3
XXXX.XXX INCORPORATED
("Xxxx.Xxx")
3.4 Directors and Officers of Xxxx.Xxx:
3.19 Material Contracts of Xxxx.Xxx:
