Exhibit 2.1
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (this "AGREEMENT") dated this 9th day of August, 2001
by and between INLITE COMPUTERS INCORPORATED, a Delaware corporation ("INLITE"),
and XXXXX X'XXXXX ("X'XXXXX").
RECITALS
O'Brien owns an aggregate of 100 shares of CopyData Limited, a company
formed under the laws of England and Wales ("COPYDATA") which shares constitute
all of the issued and outstanding capital stock of CopyData (the "COPYDATA
SHARES").
Inlite and O'Brien desire to effect the exchange of 7,000,000 shares of
common stock of Inlite for the CopyData Shares upon the terms and subject to the
conditions set forth herein.
In consideration of the foregoing and the mutual covenants,
representations, warranties and agreements hereinafter set forth, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
When used herein, the following terms shall have the meanings set forth
below:
"AFFILIATE" means, with respect to any given Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. The term "control"
(including, with correlative meaning, the terms "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"ASSETS" means all properties, assets, Contracts, business, goodwill and
rights of CopyData or Inlite, as the case may be, as a going concern, of every
kind, nature, character and description, tangible and intangible, wherever
located and whether or not carried or reflected on the books and records of
CopyData or Inlite, as the case may be, on the Closing Date
"CONTRACT" means any contract, agreement, lease, license, arrangement,
commitment, sales order, purchase order or any claim or right or any benefit or
obligation arising thereunder or resulting therefrom and currently in effect,
whether oral or written.
"LIABILITIES" means any direct or indirect liability, indebtedness, claim,
loss, damage, deficiency, obligation or responsibility, fixed or unfixed, xxxxxx
or inchoate, liquidated or unliquidated, secured or unsecured, accrued,
absolute, known or unknown, contingent or otherwise.
"LIEN" means any mortgage, lien, pledge, charge, security interest,
license, lease, claim, restriction, option, conditional sale or installment
Contract or encumbrance of any kind.
"PERSON" shall include an individual, a partnership, a corporation, or a
division or business unit thereof, a trust, an unincorporated organization, a
government or any department or agency thereof and any other entity.
"SECURITIES ACT" shall mean the United States Securities Act of 1933, as
amended.
ARTICLE II
EXCHANGE OF SHARES
2.1 DELIVERY OF COPYDATA SHARES. At the Closing, O'Brien shall deliver to
Inlite share certificates representing the CopyData Shares, duly endorsed to
Inlite or accompanied by stock powers duly executed in proper form for transfer
to Inlite from O'Brien.
2.2 ISSUANCE OF INLITE SHARES. In exchange for the CopyData Shares, Inlite
shall, at the Closing, issue to O'Brien share certificates representing
7,000,000 shares of common stock of Inlite (the "INLITE SHARES").
ARTICLE III
CLOSING
3.1 CLOSING. The closing (the "CLOSING") of the transactions contemplated
hereby shall be held at the offices of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP,
located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., local
time, on or before August 9, 2001 or within five (5) days after the conditions
contained in Articles VII and VIII have been satisfied or waived, or at such
other place and time as may be agreed upon by the parties hereto, but in no
event later than sixty-five (65) days from the execution of this Agreement
unless further extended by agreement of the parties. The time and date of the
Closing is referred to herein as the "CLOSING DATE." At the Closing, in addition
to the exchange of the CopyData Shares for the
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Inlite Shares, the parties hereto shall deliver such, certificates, opinions and
other documents as are specified in Articles VII and VIII.
3.2 TRANSFER TAXES. Each party shall be responsible for its own transfer
and similar taxes assessed or payable in connection with the sale and transfer
of the CopyData Shares or Inlite Shares, as the case may be, and the
transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INLITE
Inlite hereby represents and warrants to, and agrees with, O'Brien as
follows:
4.1 ORGANIZATION. Inlite is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Inlite has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. Inlite has previously
delivered to O'Brien true, accurate and complete copies of its Certificates of
Incorporation and By-Laws as in effect on the date hereof and minutes of all
meetings of stockholders and directors of Inlite held as of the date of this
Agreement. Inlite is not in violation of any of the provisions of its
Certificate of Incorporation or By-Laws.
4.2 AUTHORITY. Inlite has full corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors and, if necessary, the stockholders of Inlite, and no other
corporate proceedings on the part of Inlite are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by Inlite and constitutes the
legal, valid and binding obligation of Inlite, enforceable against it in
accordance with its terms.
4.3 CAPITALIZATION.
(a) Inlite has authorized capital stock of 50,000,000 shares of common
stock, par value $.001 per share, none of which are issued and outstanding as of
the date hereof and 1,000,000 shares of Series Preferred Stock, $.001 par value
per share, none of which are issued and outstanding as of the date hereof. There
are no other convertible securities, options, warrants, subscription calls or
other rights or agreements, arrangements or commitments obligating Inlite to
issue, transfer or sell any of its securities.
(b) The issuance and delivery of the Inlite Shares have been duly
authorized by all required corporate action on the part of Inlite. The Inlite
Shares when issued and paid for in accordance with this Agreement, will be
validly issued, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof and will be free and clear of all Liens.
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4.4 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, (i) conflict with
or violate any law, regulation, court order, judgment or decree, (ii) violate or
conflict with the Certificate of Incorporation or By-Laws of Inlite, or (iii)
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination or cancellation of any Contract, permit, license or
franchise to which Inlite is bound or affected, except for conflicts,
violations, breaches or defaults which, in the aggregate, would not have a
material adverse effect on the business, operations, Assets, Liabilities,
condition (financial or otherwise), results of operations or prospects (a
"MATERIAL ADVERSE EFFECT") of Inlite.
(b) The execution, delivery or performance of this Agreement does not, and
the consummation of the transactions contemplated hereby will not require any
notice, report or other filing with any governmental authority, domestic or
foreign, or require any waiver, consent, approval or authorization of any Person
or any governmental or regulatory authority, domestic or foreign.
4.5 FINDER'S FEE. There is no investment banker, broker, finder or other
intermediary which has been retained by, or is authorized to act on behalf of
Inlite or its Affiliates who might be entitled to any fee or commission from any
of O'Brien or their respective Affiliates upon the consummation of the
transactions contemplated hereby or thereafter.
4.6 ACCURACY OF REPRESENTATIONS. The representations and warranties made
by Inlite in this Agreement, and in any certificate or schedule referenced
hereby or attached hereto, do not contain, and will not contain, any statement
which is false or misleading with respect to any material fact and do not and
will not omit to state a material fact required to be stated herein or therein
or necessary in order to make the statements contained herein or therein not
materially false or misleading. There is no material fact or condition which
could have a Material Adverse Effect on Inlite which has not been set forth in
this Agreement or described in the Schedules hereto.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF O'BRIEN
O'Brien hereby, severally and not jointly, represents and warrants to, and
agrees with, Inlite as follows:
5.1 ORGANIZATION AND AUTHORITY.
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(a) CopyData is a corporation duly organized, validly existing and in good
standing under the laws of England and Wales. CopyData has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. CopyData is duly qualified to do
business and in good standing as a foreign corporation in each jurisdiction in
which the property owned, leased or operated by CopyData or the nature of the
business conducted by it makes such qualification necessary.
(b) O'Brien is of full age and has the legal capacity to enter into this
Agreement and to carry out the transactions contemplated hereby, and this
Agreement constitutes the valid and binding obligation of such O'Brien,
enforceable in accordance with its terms.
5.2 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, (i) conflict with
or violate any law, regulation, court order, judgment or decree applicable to
O'Brien, (ii) result in any breach of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to
others any rights of termination or cancellation of any Contract, permit,
license or franchise to which any of O'Brien is a party or is bound or affected,
which conflict, violation, breach, default or right of termination or
cancellation would impair O'Brien's ability to consummate the transactions
contemplated hereby.
(b) The execution, delivery or performance of this Agreement does not, and
the consummation of the transactions contemplated hereby will not require any
notice, report or other filing with any governmental authority, domestic or
foreign, or require any waiver, consent, approval or authorization of any Person
or any governmental or regulatory authority, domestic or foreign.
5.3 CAPITALIZATION. CopyData has authorized capital stock of _____________
shares, of which 100 shares are issued and outstanding as of the date hereof.
All issued and outstanding shares of capital stock of CopyData have been duly
authorized, validly issued, fully paid, nonassessable and free of preemptive
rights. There are no other convertible securities, options, warrants,
subscription calls or other rights or agreements, arrangements or commitments
obligating CopyData to issue, transfer or sell any of its securities. None of
such issued and outstanding shares is the subject of any voting trust agreement
or other agreement relating to the voting thereof or restricting in any way the
sale or transfer thereof.
5.4 SHARE OWNERSHIP. O'Brien is the record and beneficial owner of all of
the CopyData Shares free and clear of Lien. O'Brien has full right and authority
to transfer such CopyData Shares pursuant to the terms of this Agreement
5.5 SECURITIES LAW ACKNOWLEDGMENTS. O'Brien acknowledges that the Inlite
Shares are being and will be issued to O'Brien in reliance on specific
exemptions from the registration requirements of federal and state securities
laws. O'Brien and any transferee of O'Brien will not
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sell or otherwise transfer the Inlite Shares without registration under the
Securities Act or an exemption therefrom, and fully understands and agrees that
O'Brien or any such transferee must bear the economic risk of holding the Inlite
Shares for an indefinite period of time because, among other reasons, the Inlite
Shares have not been registered under the Securities Act or under the securities
laws of certain states and, therefore, cannot be resold, pledged, assigned or
otherwise disposed of unless the securities are subsequently registered under
the Securities Act and under the applicable securities laws of such states or
unless an exemption from such registration is available in the opinion of
counsel for the holder, which counsel and opinion are reasonably satisfactory to
counsel for Inlite. O'Brien is acquiring the Inlite Shares for the account of
O'Brien for investment and not with a view to resale or distribution except in
compliance with the Securities Act.
5.6 FINDER'S FEE. There is no investment banker, broker, finder or other
intermediary which has been retained by, or is authorized to act on behalf of,
O'Brien who might be entitled to any fee or commission from Inlite or any of its
Affiliates upon the consummation of the transactions contemplated by this
Agreement thereafter.
5.7 ACCURACY OF REPRESENTATIONS. The representations and warranties made
by O'Brien in this Agreement, and in any certificate or schedule referenced
hereby or attached hereto, do not contain, and will not contain, any statement
which is false or misleading with respect to any material fact and do not and
will not omit to state a material fact required to be stated herein or therein
or necessary in order to make the statements contained herein or therein not
materially false or misleading. There is no material fact or condition which
could have a Material Adverse Effect on any of O'Brien which has not been set
forth in this Agreement or described in the Schedules hereto.
ARTICLE VI
COVENANTS
6.1 CONSENTS. Each party hereto shall use its best efforts to obtain, at
its expense, all consents, approvals and waivers of third Persons or
governmental entities or regulatory bodies required to consummate the
transactions contemplated hereby.
6.2 PUBLIC ANNOUNCEMENTS. Each of the parties hereto will consult with one
another before issuing any press release or otherwise making any public
statement with respect to the transactions contemplated hereby and shall not,
except as may be required by law or any listing agreements with any national
securities exchange, issue any such press release or make any such public
statement without the approval of one another.
6.2 EXPENSES. Except as otherwise provided herein, whether or not the
transactions contemplated hereby are consummated, all expenses incurred in
connection with this Agreement
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and the transactions contemplated hereby shall be the obligation of the party
incurring such expenses.
ARTICLE VII
CONDITIONS PRECEDENT TO
THE PERFORMANCE OF INLITE
The obligations of Inlite under this Agreement are subject to the
following conditions which may be waived in whole or in part by Inlite at its
election:
7.1 BRING DOWN OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each of O'Brien in this Agreement shall be true and correct in all
material respects on the date hereof and shall also be true and correct in all
material respects on the Closing Date with the same force and effect as if made
on and as of the Closing Date, and O'Brien shall have performed or complied in
all material respects with all agreements, conditions and covenants required by
this Agreement to be performed or complied with by them on or before the Closing
Date.
7.2 CONSENTS. O'Brien shall have obtained all approvals, authorizations
and consents required to consummate the transactions contemplated hereby upon
terms and subject to conditions satisfactory to Inlite in its sole discretion
and they shall be in full force and effect. Inlite shall have been furnished
with appropriate evidence, reasonably satisfactory to it and its counsel, of the
granting of such approvals, authorizations and consents.
ARTICLE VIII
CONDITIONS PRECEDENT TO
PERFORMANCE OF O'BRIEN
The obligations of O'Brien under this Agreement are subject to the
following conditions which may be waived in whole or in part by O'Brien at their
election:
8.1 BRING DOWN OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Inlite contained in this Agreement shall be true and correct in
all material respects on the date hereof and shall also be true and correct in
all material respects on and as at the Closing Date with the same force and
effect as if made on and as of the Closing Date, and Inlite shall have performed
or complied in all material respects with all agreements, conditions and
covenants required by this Agreement to be performed or complied with by it on
or before the Closing Date.
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8.2 AUTHORITY. Inlite shall have delivered to O'Brien a certificate of the
Secretary of Inlite certifying to the resolutions of the Board of Directors of
Inlite authorizing the transactions contemplated hereby and certifying that such
resolutions have not been revoked, suspended or amended and remain in full force
and effect. O'Brien shall have received all other documents he may reasonably
request relating to the existence of Inlite and the authority of Inlite to enter
into this Agreement and to consummate the transactions contemplated hereby.
8.3 CONSENTS. All approvals, authorizations and consents required by
Inlite to consummate the transactions contemplated hereby shall have been
obtained on terms and conditions satisfactory to O'Brien in his sole discretion
and shall be in full force and effect, and O'Brien shall have been furnished
with appropriate evidence, reasonably satisfactory to him and his counsel, of
the granting of such approvals, authorizations and consents.
8.4 INJUNCTION. There shall be no effective injunction, writ or
preliminary restraining order of any nature issued by a court or governmental
agency of competent jurisdiction directing that the transactions provided for
herein or any of them not be consummated as herein provided.
ARTICLE IX
MISCELLANEOUS
9.1 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement, together with all
Schedules and Exhibits, constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, among the parties or between any of
them with respect to the subject matter hereof. All references to Sections,
Exhibits and Schedules shall be deemed references to such parts of this
Agreement unless the text requires otherwise. This Agreement shall not be
assigned by operation of law or otherwise.
9.2 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made as of
the date delivered or mailed if delivered in person, by telecopy, cable,
telegram or telex, or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties as follows:
If to Inlite:
c/o Xxxxx X'Xxxxx
Fax:
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with a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
If to O'Brien :
Xxxxx X'Xxxxx
CopyData Limited
with a copy to:
Fox Hayes
Bank House
000 Xxxxxxxx Xxxx
Xxxxx, XX0 0XX
Xxxxxx Xxxxxxx
Fax: 000-00-000-000-0000
Attn: Mr. J. Xxxxxx Xxxxxxx
or to such other address as the Person to whom notices is given may have
previously furnished to the others in writing in the manner set forth above.
9.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
applicable principles of conflicts of laws thereof.
9.4 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, its successors and assigns.
9.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
9.6 SPECIFIC PERFORMANCE. Irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with the terms
hereof, and the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
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9.7 CONSTRUCTION. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. Nothing in the
Schedules shall be deemed adequate to disclose an exception to a representation
or warranty made herein unless the Schedule identifies the exception with
reasonable particularity and describes the relevant facts in reasonable detail.
Without limiting the generality of the foregoing, the mere listing (or inclusion
of a copy) of a document or other item shall not be deemed adequate to disclose
an exception to a representation or warranty made herein (unless the
representation or warranty has to do with the existence of the document or other
item itself). The parties intend that each representation, warranty, and
covenant contained herein shall have independent significance. If any party has
breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative levels
of specificity) which the party has not breached shall not detract from or
mitigate the fact that the party is in breach of the first representation,
warranty, or covenant.
9.8 INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, or
individually, as the case may be, all as of the day and year first above
written.
INLITE COMPUTERS INCORPORATED
By:
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Name: XXXX XXXXXX X'XXXXX
Title: CHAIRMAN
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Xxxxx X'Xxxxx
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