SHARE EXCHANGE AGREEMENT
Exhibit
2.1
SHARE EXCHANGE AGREEMENT,
dated as of February 3, 2010 (this “Agreement”) by and among Reach
Messaging, Inc., a California corporation (“Reach Messaging”), the
stockholders of Reach Messaging set forth on Schedule I hereto (the “Reach Messaging
Shareholders”), FormulaWon, Inc., a Delaware corporation (“FormulaWon”), and a majority
of the stockholders of FormulaWon set forth on Schedule II hereto (the “FormulaWon Controlling
Stockholders”).
WHEREAS, the Reach Messaging
Shareholders own 100% of the issued and outstanding ordinary shares of Reach
Messaging (such shares being hereinafter referred to as the “Reach Messaging Shares”);
and
WHEREAS, (i) the Reach
Messaging Shareholders and Reach Messaging believe it is in their respective
best interests for the Reach Messaging Shareholders to exchange 48,000,000
shares of Reach Messaging Shares for 48,000,000 newly-issued shares as set forth
on Schedule III hereto (the “FormulaWonShares”) of common stock,
$0.001 par value per share, of FormulaWon (the “Common Stock”), which, at the
time of this Agreement, prior to any financing, shall constitute 44% of the
issued and outstanding shares of FormulaWon Common Stock immediately after the
closing of the transactions contemplated herein, and (ii) FormulaWon believes it
is in its best interest and the best interest of its stockholders to acquire the
Reach Messaging Shares in exchange for the FormulaWon Shares, all upon the terms
and subject to the conditions set forth in this Agreement (the “Share Exchange”);
and
WHEREAS, it is the intention
of the parties that: (i) the Share Exchange shall qualify as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended (the “Code”);
and (ii) the Share Exchange shall qualify as a transaction in securities exempt
from registration or qualification under the Securities Act of 1933, as amended
and in effect on the date of this Agreement (the “Securities Act”);
and
NOW, THEREFORE, in
consideration of the mutual terms, conditions and other agreements set forth
herein, the parties hereto agree as follows:
ARTICLE
I
EXCHANGE
OF REACH MESSAGING SHARES FOR FORMULAWON SHARES
Section 1.1 Agreement to Exchange Reach
Messaging Shares for FormulaWon Shares. On the Closing Date (as
hereinafter defined) and upon the terms and subject to the conditions set forth
in this Agreement, the Reach Messaging Shareholders shall assign, transfer,
convey and deliver the Reach Messaging Shares to FormulaWon. In
consideration and exchange for the Reach Messaging Shares, FormulaWon shall
issue, transfer, convey and deliver the FormulaWon Shares to the Reach Messaging
Shareholders.
Section 1.2 Closing and Actions at
Closing. The closing of the Share Exchange (the “Closing”) shall take place
remotely via the exchange of documents and signatures at 10:00 a.m. E.D.T. on
the day the conditions to closing set forth in Articles V and VI herein have
been satisfied or waived, or at such other time and date as the parties hereto
shall agree in writing (the “Closing Date”).
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Section 1.3 Directors of FormulaWon at
Closing Date. On the Closing Date, Fitra Iriani, the current director of
FormulaWon, shall resign from the board of directors of FormulaWon (the “FormulaWon Board”) and Xxxxx
Xxx, Xxxxx Xxxxxxxx and Xxxxx X. Xxxxx appointment to the FormulaWon Board shall
become effective.
Section 1.4 Officers of FormulaWon at
Closing Date. On the Closing Date, Fitra Iriani shall resign from each
officer position held at FormulaWon and immediately thereafter, the FormulaWon
Board shall appoint Xxxxx Xxx to serve as President and Chief Executive Officer;
Xxxxx X. Xxxxx to serve as Chief Financial Officer and Secretary; and Xxxxx
Xxxxxxxx to serve as Chief Technology Officer.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF FORMULAWON
FormulaWon
represents, warrants and agrees that all of the statements in the following
subsections of this Article II are true and complete as of the date
hereof.
Section 2.1 Corporate
Organization
a. FormulaWon
is a corporation duly organized, validly existing and in good standing under the
laws of Delaware, and has all requisite corporate power and authority to own its
properties and assets and governmental licenses, authorizations, consents and
approvals to conduct its business as now conducted and is duly qualified to do
business and is in good standing in each jurisdiction in which the nature of its
activities makes such qualification and being in good standing necessary, except
where the failure to be so qualified and in good standing will not have a
Material Adverse Effect on the activities, business, operations, properties,
assets, condition or results of operation of FormulaWon. “Material Adverse Effect”
means, when used with respect to FormulaWon, any event, occurrence, fact,
condition, change or effect, which, individually or in the aggregate, would
reasonably be expected to be materially adverse to the business, operations,
properties, assets, condition (financial or otherwise), or operating results of
FormulaWon, or materially impair the ability of FormulaWon to perform its
obligations under this Agreement, excluding any change, effect or circumstance
resulting from (i) the announcement, pendency or consummation of the
transactions contemplated by this Agreement, or (ii) changes in the United
States securities markets generally.
b. Copies
of the certificate of incorporation and by-laws of FormulaWon with all
amendments thereto, as of the date hereof (the “FormulaWon Charter
Documents”), have been furnished to the Reach Messaging Shareholders and
to Reach Messaging, and such copies are accurate and complete as of the date
hereof. The minute books of FormulaWon are current as required by law, contain
the minutes of all meetings of the FormulaWon Board and stockholders of
FormulaWon from its date of incorporation to the date of this Agreement, and
adequately reflect all material actions taken by the FormulaWon Board and
stockholders of Reach Messaging. FormulaWon is not in violation of any of the
provisions of the FormulaWon Charter Documents.
Section 2.2 Capitalization of
FormulaWon.
a. The
authorized capital stock of FormulaWon consists of shares are authorized as
Common Stock and Preferred Stock, of which 136,897,306 common shares are issued
and outstanding, immediately prior to this Share Exchange. There are
no preferred shares issued and outstanding.
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b. All
of the issued and outstanding shares of Common Stock of FormulaWon immediately
prior to this Share Exchange are, and all shares of Common Stock of FormulaWon
when issued in accordance with the terms hereof will be, duly authorized,
validly issued, fully paid and non-assessable, have been issued in compliance
with all applicable U.S. federal and state securities laws and state corporate
laws, and have been issued free of preemptive rights of any security holder.
Except with respect to securities to be issued in connection with the Private
Placement and to the Reach Messaging Shareholders pursuant to the terms hereof,
as of the date of this Agreement there are no outstanding or authorized options,
warrants, agreements, commitments, conversion rights, preemptive rights or other
rights to subscribe for, purchase or otherwise acquire or receive any shares of
FormulaWon’s capital stock, nor are there or will there be any outstanding or
authorized stock appreciation, phantom stock, profit participation or similar
rights, pre-emptive rights or rights of first refusal with respect to FormulaWon
or any Common Stock, or any voting trusts, proxies or other agreements,
understandings or restrictions with respect to the voting of FormulaWon’s
capital stock. There are no registration or anti-dilution rights, and there is
no voting trust, proxy, rights plan, anti-takeover plan or other agreement or
understanding to which FormulaWon is a party or by which it is bound with
respect to any equity security of any class of FormulaWon. FormulaWon is not a
party to, and it has no knowledge of, any agreement restricting the transfer of
any shares of the capital stock of FormulaWon. The issuance of all of
the shares of FormulaWon described in this Section 2.2 have been, or will be, as
applicable, in compliance with U.S. federal and state securities laws and state
corporate laws and no stockholder of FormulaWon has any right to rescind or
bring any other claim against FormulaWon for failure to comply with the
Securities Act of 1933, as amended (the “Securities Act”), or state securities
laws.
c. There
are no outstanding contractual obligations (contingent or otherwise) of
FormulaWon to retire, repurchase, redeem or otherwise acquire any outstanding
shares of capital stock of, or other ownership interests in, FormulaWon or to
provide funds to or make any investment (in the form of a loan, capital
contribution or otherwise) in any other person.
Section 2.3 Subsidiaries and Equity
Investments. FormulaWon does not directly or indirectly own any capital
stock or other securities of, or any beneficial ownership interest in, or hold
any equity or similar interest, or have any investment in any corporation,
limited liability company, partnership, limited partnership, joint venture or
other company, person or other entity.
Section 2.4 Authorization, Validity and
Enforceability of Agreements. FormulaWon has all corporate power and
authority to execute and deliver this Agreement and all agreements, instruments
and other documents to be executed and delivered in connection with the
transactions contemplated by this Agreement to perform its obligations hereunder
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement by FormulaWon and the consummation by
FormulaWon of the transactions contemplated hereby and thereby, have been duly
authorized by all necessary corporate action of FormulaWon, and no other
corporate proceedings on the part of FormulaWon are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby and thereby.
This Agreement constitutes the valid and legally binding obligation of
FormulaWon and is enforceable in accordance with its terms, except as such
enforcement may be limited by general equitable principles, or by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors rights
generally. FormulaWon does not need to give any notice to, make any filings
with, or obtain any authorization, consent or approval of any government or
governmental agency or other person in order for it to consummate the
transactions contemplated by this Agreement, other than filings that may be
required or permitted under states securities laws, the Securities Act and/or
the Exchange Act resulting from the issuance of the FormulaWon Shares or
securities in connection with the Private Placement.
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Section 2.5 No Conflict or
Violation. Neither the execution and delivery of this Agreement by
FormulaWon, nor the consummation by FormulaWon of the transactions contemplated
hereby will: (i) contravene, conflict with, or violate any provision of the
FormulaWon Charter Documents; (ii) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency, court, administrative panel
or other tribunal to which FormulaWon is subject, (iii) conflict with,
result in a breach of, constitute a default (or an event or condition which,
with notice or lapse of time or both, would constitute a default) under, result
in the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which FormulaWon is a party or by
which it is bound, or to which any of its assets or properties are subject; or
(iv) result in or require the creation or imposition of any encumbrance of any
nature upon or with respect to any of FormulaWon’s assets, including without
limitation the FormulaWon Shares.
Section 2.6 Agreements. Except as
disclosed on documents filed with the Securities and Exchange Commission (the
“Commission”),
FormulaWon is not a party to or bound by any contracts, including, but not
limited to, any:
a. employment,
advisory or consulting contract;
b. plan
providing for employee benefits of any nature, including any severance
payments;
c. lease
with respect to any property or equipment;
d. contract,
agreement, understanding or commitment for any future expenditure in excess of
$5,000 in the aggregate;
e. contract
or commitment pursuant to which it has assumed, guaranteed, endorsed, or
otherwise become liable for any obligation of any other person, entity or
organization; or
f. agreement
with any person relating to the dividend, purchase or sale of securities, that
has not been settled by the delivery or payment of securities when due, and
which remains unsettled upon the date of this Agreement, except with respect to
the FormulaWon Shares or the securities to be issued pursuant to the Securities
Purchase Agreement.
FormulaWon
has provided to Reach Messaging and the Reach Messaging Shareholders, prior to
the date of this Agreement, true, correct and complete copies of each contract
(whether written or oral), including each amendment, supplement and modification
thereto (the “FormulaWon
Contracts”). The Company shall satisfy all liabilities due
under the FormulaWon Contracts as of the date of Closing. All such
liabilities shall be satisfied or released at or prior to
Closing. Any amounts accrued post-Closing shall be the sole
responsibility of Reach Messaging.
Section 2.7 Litigation. There is
no action, suit, proceeding or investigation (“Action”) pending or, to the
knowledge of FormulaWon, currently threatened against FormulaWon or any of its
affiliates, that may affect the validity of this Agreement or the right of
FormulaWon to enter into this Agreement or to consummate the transactions
contemplated hereby or thereby. There is no Action pending or, to the knowledge
of FormulaWon, currently threatened against FormulaWon or any of its affiliates,
before any court or by or before any governmental body or any arbitration board
or tribunal, nor is there any judgment, decree, injunction or order of any
court, governmental department, commission, agency, instrumentality or
arbitrator against FormulaWon or any of its affiliates. Neither FormulaWon nor
any of its affiliates is a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no Action by FormulaWon or any of its affiliates
relating to FormulaWon currently pending or which FormulaWon or any of its
affiliates intends to initiate.
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Section 2.8 Compliance with Laws.
FormulaWon has been and is in compliance with, and has not received any notice
of any violation of any, applicable law, order, ordinance, regulation or rule of
any kind whatsoever, including without limitation the Securities Act, the
Exchange Act, the applicable rules and regulations of the SEC or the applicable
securities laws and rules and regulations of any state.
Section 2.9 Financial Statements; SEC
Filings.
a. FormulaWon’s
financial statements (the “Financial Statements”)
contained in its periodic reports filed with the SEC have been prepared in
accordance with generally accepted accounting principles applicable in the
United States of America (“U.S.
GAAP”) applied on a consistent basis throughout the periods indicated,
except that those Financial Statements that are not audited do not contain all
footnotes required by U.S. GAAP. The Financial Statements fairly present the
financial condition and operating results of FormulaWon as of the dates, and for
the periods, indicated therein, subject to normal year-end audit adjustments.
FormulaWon has no material liabilities (contingent or otherwise). FormulaWon is
not a guarantor or indemnitor of any indebtedness of any other person, entity or
organization. FormulaWon maintains a standard system of accounting established
and administered in accordance with U.S. GAAP.
b.
FormulaWon has timely made all filings with the SEC that it has been required to
make under the Securities Act and the Exchange Act (the “Public Reports”). Each of the
Public Reports has complied in all material respects with the applicable
provisions of the Securities Act, the Exchange Act, and the Sarbanes/Oxley Act
of 2002 (the “Sarbanes/Oxley
Act”) and/or regulations promulgated thereunder. None of the Public
Reports, as of their respective dates, contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading. There is no event, fact or circumstance
that would cause any certification signed by any officer of FormulaWon in
connection with any Public Report pursuant to the Sarbanes/Oxley Act to be
untrue, inaccurate or incorrect in any respect. There is no revocation order,
suspension order, injunction or other proceeding or law affecting the trading of
FormulaWon’s Common Stock, it being acknowledged that none of FormulaWon’s
securities are approved or listed for trading on any exchange or quotation
system.
Section 2.10 Books, Financial Records and
Internal Controls. All the accounts, books, registers, ledgers,
FormulaWon Board minutes and financial and other records of whatsoever kind of
FormulaWon have been fully, properly and accurately kept and completed; there
are no material inaccuracies or discrepancies of any kind contained or reflected
therein; and they give and reflect a true and fair view of the financial,
contractual and legal position of FormulaWon. FormulaWon maintains a system of
internal accounting controls sufficient, in the judgment of FormulaWon, to
provide reasonable assurance that (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate actions are taken
with respect to any differences.
Section 2.11 Employee Benefit
Plans. FormulaWon does not have any “Employee Benefit Plan” as defined in
the U.S. Employee Retirement Income Security Act of 1974 or similar plans under
any applicable laws.
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Section 2.12 Tax Returns, Payments and
Elections. FormulaWon has filed all Tax (as defined below) returns,
statements, reports, declarations and other forms and documents (including,
without limitation, estimated tax returns and reports and material information
returns and reports) (“Tax
Returns”) required pursuant to applicable law to be filed with any Tax
Authority (as defined below). All such Tax Returns are accurate, complete and
correct in all material respects, and FormulaWon has timely paid all Taxes due
and adequate provisions have been and are reflected in FormulaWon’s Financial
Statements for all current taxes and other charges to which FormulaWon is
subject and which are not currently due and payable. None of FormulaWon’s
federal income tax returns have been audited by the Internal Revenue Service.
FormulaWon has no knowledge of any additional assessments, adjustments or
contingent tax liability (whether federal or state) of any nature whatsoever,
whether pending or threatened against the FormulaWon for any period, nor of any
basis for any such assessment, adjustment or contingency. FormulaWon has
withheld or collected from each payment made to each of its employees, if
applicable, the amount of all Taxes (including, but not limited to, United
States income taxes and other foreign taxes) required to be withheld or
collected therefrom, and has paid the same to the proper Tax Authority. For
purposes of this Agreement, the following terms have the following meanings:
“Tax” (and, with
correlative meaning, “Taxes” and “Taxable”) means any and all taxes including,
without limitation, (x) any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise, profits,
value added, net worth, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty or other tax, governmental fee or other like assessment
or charge of any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed by any United States, local or
foreign governmental authority or regulatory body responsible for the imposition
of any such tax (domestic or foreign) (a “Tax Authority”), (y) any
liability for the payment of any amounts of the type described in (x) as a
result of being a member of an affiliated, consolidated, combined or unitary
group for any taxable period or as the result of being a transferee or successor
thereof, and (z) any liability for the payment of any amounts of the type
described in (x) or (y) as a result of any express or implied obligation to
indemnify any other person.
Section 2.13 No Debt Obligations.
Upon the Closing Date, FormulaWon will have no debt, obligations or liabilities
of any kind whatsoever other than with respect to the transactions contemplated
hereby. FormulaWon is not a guarantor of any indebtedness of any other person,
entity or corporation.
Section 2.14 No Broker
Fees. No brokers, finders or financial advisory fees or commissions
will be payable by or to FormulaWon or any of their affiliates with respect to
the transactions contemplated by this Agreement.
Section 2.15 No Disagreements with
Accountants and Lawyers. There are no disagreements of any kind presently
existing, or anticipated by FormulaWon to arise, between FormulaWon and any
accountants and/or lawyers formerly or presently engaged by FormulaWon.
FormulaWon is current with respect to fees owed to its accountants and
lawyers.
Section 2.16 Disclosure. This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of FormulaWon in connection with the
transactions contemplated by this Agreement do not contain any untrue statement
of a material fact or omit any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
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Section 2.17 Absence of Undisclosed
Liabilities. Since the date of the filing of its quarterly report on Form
10-Q for the quarter ended September 30, 2009, except as specifically disclosed
in the Public Reports: (A) there has been no event, occurrence or development
that has resulted in or could result in a Material Adverse Effect; (B)
FormulaWon has not incurred any liabilities, obligations, claims or losses,
contingent or otherwise, including debt obligations, other than professional
fees; (C) FormulaWon has not declared or made any dividend or distribution of
cash or property to its shareholders, purchased, redeemed or made any agreements
to purchase or redeem any shares of its capital stock, or issued any equity
securities other than with respect to transactions contemplated hereby; (D)
FormulaWon has not made any loan, advance or capital contribution to or
investment in any person or entity; (E) FormulaWon has not discharged or
satisfied any lien or encumbrance or paid any obligation or liability (absolute
or contingent), other than current liabilities paid in the ordinary course of
business; (F) FormulaWon has not suffered any substantial losses or waived any
rights of material value, whether or not in the ordinary course of business, or
suffered the loss of any material amount of prospective business; and (G) except
for the Share Exchange, FormulaWon has not entered into any other transaction
other than in the ordinary course of business, or entered into any other
material transaction, whether or not in the ordinary course of
business.
Section 2.18 No Integrated
Offering. FormulaWon does not have any registration statement pending
before the Commission or currently under the Commission’s review and since the
Closing Date, except as contemplated under this Agreement, FormulaWon has not
offered or sold any of its equity securities or debt securities convertible into
shares of Common Stock.
Section 2.19 Employees.
a. FormulaWon
has no employees.
b. Other
than Fitra Iriani, FormulaWon does not have any officers or directors. No
director or officer of FormulaWon is a party to, or is otherwise bound by, any
contract (including any confidentiality, non-competition or proprietary rights
agreement) with any other person that in any way adversely affects or will
materially affect (a) the performance of her duties as a director or officer of
FormulaWon or (b) the ability of FormulaWon to conduct its
business.
Section 2.20 No Undisclosed Events or
Circumstances. No event or circumstance has occurred or exists with
respect to FormulaWon or its respective businesses, properties, prospects,
operations or financial condition, which, under applicable law, rule or
regulation, requires public disclosure or announcement by FormulaWon but which
has not been so publicly announced or disclosed. FormulaWon has not provided to
Reach Messaging, or the Reach Messaging Shareholders, any material non-public
information or other information which, according to applicable law, rule or
regulation, was required to have been disclosed publicly by FormulaWon but which
has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement and/or the Private Placement.
Section 2.21 Disclosure. This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereof by or on behalf of FormulaWon or any of the FormulaWon
Controlling Stockholders in connection with the transactions contemplated by
this Agreement, when taken together, do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
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Section 2.22 No Assets or Real
Property. Except as set forth on the most recent Financial Statements,
FormulaWon does not have any assets of any kind. FormulaWon does not
own or lease any real property.
Section 2.23 Interested Party
Transactions. Except as disclosed on Schedule 2.23 and in
Commission filings, no officer, director or shareholder of FormulaWon or any
affiliate or “associate” (as such term is defined in Rule 405 of the Commission
under the Securities Act) of any such person or entity, has or has had, either
directly or indirectly, (a) an interest in any person or entity which (i)
furnishes or sells services or products which are furnished or sold or are
proposed to be furnished or sold by FormulaWon, or (ii) purchases from or sells
or furnishes to, or proposes to purchase from, sell to or furnish FormulaWon any
goods or services; or (b) a beneficial interest in any contract or agreement to
which FormulaWon is a party or by which it may be bound or affected.
Section 2.24 Intellectual
Property. Except as in documents filed with the Commission,
FormulaWon does not own, use or license any intellectual property in its
business as presently conducted.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF REACH MESSAGING
Reach
Messaging represents, warrants and agrees that all of the statements in the
following subsections of this Article III, pertaining to Reach Messaging, are
true and complete as of the date hereof.
Section 3.1 Incorporation.
Reach
Messaging is a company duly incorporated, validly existing, and in good standing
under the laws of California and has the corporate power and is duly authorized
under all applicable laws, regulations, ordinances, and orders of public
authorities to carry on its business in all material respects as it is now being
conducted. The execution and delivery of this Agreement does not, and
the consummation of the transactions contemplated hereby will not, violate any
provision of Reach Messaging’s Articles of Organization or
bylaws. Reach Messaging has taken all actions required by law, its
Articles of Organization or bylaws, or otherwise to authorize the execution and
delivery of this Agreement. Reach Messaging has full power,
authority, and legal capacity and has taken all action required by law, its
Articles of Organization or bylaws, and otherwise to consummate the transactions
herein contemplated.
Section 3.2 Authorized
Shares.
The
number of shares which Reach Messaging is authorized to issue consists of shares
of Common Stock, consisting of 50,000,000 shares of common stock, par value of
$0.001 per share. There are 48,000,000 shares of common stock issued
and outstanding. The issued and outstanding shares are validly
issued, fully paid, and non-assessable and not issued in violation of the
preemptive or other rights of any person.
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Section 3.3 Subsidiaries and Predecessor
Corporations
Reach
Messaging does not have any subsidiaries, and does not own, beneficially or of
record, any shares of any other corporation.
Section 3.4 Financial
Statements.
Reach
Messaging has kept all books and records since inception and such financial
statements have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved. The balance
sheets are true and accurate and present fairly as of their respective dates the
financial condition of Reach Messaging. As of the date of such
balance sheets, except as and to the extent reflected or reserved against
therein, Reach Messaging had no liabilities or obligations (absolute or
contingent) which should be reflected in the balance sheets or the notes thereto
prepared in accordance with generally accepted accounting principles, and all
assets reflected therein are properly reported and present fairly the value of
the assets of Reach Messaging, in accordance with generally accepted accounting
principles. The statements of operations, stockholders’ equity and cash flows
reflect fairly the information required to be set forth therein by generally
accepted accounting principles.
Reach
Messaging has duly and punctually paid all Governmental fees and taxation which
it has become liable to pay and has duly allowed for all taxation reasonably
foreseeable and is under no liability to pay any penalty or interest in
connection with any claim for governmental fees or taxation and Reach Messaging
has made any and all proper declarations and returns for taxation purposes and
all information contained in such declarations and returns is true and complete
and full provision or reserves have been made in its financial statements for
all Governmental fees and taxation.
The books
and records, financial and otherwise, of Reach Messaging are, in all material
aspects, complete and correct and have been maintained in accordance with good
business and accounting practices.
All of
Reach Messaging’s assets are reflected on its financial statements, and Reach
Messaging has no material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise.
Section 3.5 Information
The
information concerning Reach Messaging set forth in this Agreement is complete
and accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state a material fact required to make the
statements made, in light of the circumstances under which they were made, not
misleading.
Section 3.6 Absence of Certain Changes or Events
Since
September 30, 2009, (a) there has not been any material adverse change in the
business, operations, properties, assets, or condition (financial or otherwise)
of Reach Messaging; and (b) Reach Messaging has not (i) declared or made, or
agreed to declare or make, any payment of dividends or distributions of any
assets of any kind whatsoever to stockholders or purchased or redeemed, or
agreed to purchase or redeem, any of its shares; (ii) made any material change
in its method of management, operation or accounting, (iii) entered into any
other material transaction other than sales in the ordinary course of its
business; or (iv) made any increase in or adoption of any profit sharing, bonus,
deferred compensation, insurance, pension, retirement, or other employee benefit
plan, payment, or arrangement made to, for, or with its officers, directors, or
employees; and
Section 3.7 Litigation and
Proceedings
There are
no actions, suits, proceedings, or investigations pending or, to the knowledge
of Reach Messaging after reasonable investigation, threatened by or
against Reach Messaging or affecting Reach Messaging or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any
kind. Reach Messaging does not have any knowledge of any material
default on its part with respect to any judgment, order, injunction, decree,
award, rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality or of any circumstances
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The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, constitute a default under, or terminate, accelerate or modify the
terms of any indenture, mortgage, deed of trust, or other material agreement, or
instrument to which Reach Messaging is a party or to which any of its assets,
properties or operations are subject.
Section 3.9 Compliance With Laws and
Regulations
To the
best of its knowledge, Reach Messaging has complied with all applicable statutes
and regulations of any federal, state, or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or condition of
Reach Messaging or except to the extent that noncompliance would not result in
the occurrence of any material liability for Reach Messaging. This
compliance includes, but is not limited to, the filing of all reports to date
with federal and state securities authorities.
Section 3.10 Approval of
Agreement
The Board
of Directors of Reach Messaging has authorized the execution and delivery of
this Agreement by Reach Messaging and has approved this Agreement and the
transactions contemplated hereby.
Section 3.11 Valid
Obligation
This
Agreement and all agreements and other documents executed by Reach Messaging in
connection herewith constitute the valid and binding obligation of Reach
Messaging, enforceable in accordance with its or their terms, except as may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
the enforcement of creditors’ rights generally and subject to the qualification
that the availability of equitable remedies is subject to the discretion of the
court before which any proceeding therefore may be brought.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF REACH MESSAGING SHAREHOLDERS
The Reach
Messaging Shareholders hereby represents and warrants to
FormulaWon:
Section 4.1 Authority. The Reach
Messaging Shareholders have the right, power, authority and capacity to execute
and deliver this Agreement to which the Reach Messaging Shareholders is a party,
to consummate the transactions contemplated by this Agreement to which the Reach
Messaging Shareholders is a party, and to perform the Reach Messaging
Shareholders’ obligations under this Agreement to which the Reach Messaging
Shareholders is a party. This Agreement has been duly and validly authorized and
approved, executed and delivered by the Reach Messaging Shareholders. Assuming
this Agreement has been duly and validly authorized, executed and delivered by
the parties thereto other than the Reach Messaging Shareholders, this Agreement
is duly authorized, executed and delivered by the Reach Messaging Shareholders
and constitutes the legal, valid and binding obligation of the Reach Messaging
Shareholders, enforceable against the Reach Messaging Shareholders in accordance
with their respective terms, except as such enforcement is limited by general
equitable principles, or by bankruptcy, insolvency and other similar Laws
affecting the enforcement of creditors rights generally.
Section 4.2 No Conflict. Neither
the execution or delivery by the Reach Messaging Shareholders of this Agreement
to which the Reach Messaging Shareholders is a party nor the consummation or
performance by the Reach Messaging Shareholders of the transactions contemplated
hereby or thereby will, directly or indirectly, (a) contravene, conflict
with, or result in a violation of any provision of the organizational documents
of the Reach Messaging Shareholders (if the Reach Messaging Shareholders is not
a natural person); (b) contravene, conflict with, constitute a default (or
an event or condition which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination or acceleration of,
any agreement or instrument to which the Reach Messaging Shareholders is a party
or by which the properties or assets of the Reach Messaging Shareholders are
bound; or (c) contravene, conflict with, or result in a violation of, any
Law or Order to which the Reach Messaging Shareholders, or any of the properties
or assets of the Reach Messaging Shareholders, may be subject.
10
Section 4.3 Litigation. There is
no pending Action against the Reach Messaging Shareholders that involves the
Reach Messaging Shares or that challenges, or may have the effect of preventing,
delaying or making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement or the business of Reach Messaging
and, to the knowledge of the Reach Messaging Shareholders, no such Action has
been threatened, and no event or circumstance exists that is reasonably likely
to give rise to or serve as a basis for the commencement of any such
Action.
Section 4.4 Acknowledgment. The
Reach Messaging Shareholders understands and agrees that the FormulaWon Shares
to be issued pursuant to this Agreement have not been registered under the
Securities Act or the securities laws of any state of the U.S. and that the
issuance of the FormulaWon Shares is being effected in reliance upon an
exemption from registration afforded either under Section 4(2) of the Securities
Act for transactions by an issuer not involving a public offering or Regulation
D promulgated thereunder or Regulation S for offers and sales of securities
outside the U.S.
Section 4.5 Stock Legends. The
Reach Messaging Shareholders hereby agrees with FormulaWon as
follows:
a. Securities
Act Legend Accredited Investors. The certificates evidencing the FormulaWon
Shares issued to the Reach Messaging Shareholders will bear the following
legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, OR (3) IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S PROMULGATED UNDER THE SECURITIES ACT, AND BASED ON AN OPINION OF
COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY,
THAT THE PROVISIONS OF REGULATION S HAVE BEEN SATISFIED.
b. Other Legends. The
certificates representing such FormulaWon Shares, and each certificate issued in
transfer thereof, will also bear any other legend required under any applicable
law, including, without limitation, any U.S. state corporate and state
securities law, or contract.
11
c. Opinion. The Reach
Messaging Shareholders shall not transfer any or all of the FormulaWon Shares
pursuant to Rule 144, under the Securities Act, Regulation S or absent
an effective registration statement under the Securities Act and applicable
state securities law covering the disposition of the FormulaWon Shares, without
first providing FormulaWon with an opinion of counsel (which counsel and opinion
are reasonably satisfactory to the FormulaWon) to the effect that such transfer
will be made in compliance with Rule 144, under the Securities Act,
Regulation S or will be exempt from the registration and the prospectus
delivery requirements of the Securities Act and the registration or
qualification requirements of any applicable U.S. state securities
laws.
Section 4.6 Ownership of Shares.
The Reach Messaging Shareholders are both the record and beneficial owner of the
Reach Messaging Shares. The Reach Messaging Shareholders is not the record or
beneficial owner of any other shares of Reach Messaging. The Reach Messaging
Shareholders has and shall transfer at the Closing, good and marketable title to
the Reach Messaging Shares, free and clear of all liens, claims, charges,
encumbrances, pledges, mortgages, security interests, options, rights to
acquire, proxies, voting trusts or similar agreements, restrictions on transfer
or adverse claims of any nature whatsoever, excepting only restrictions on
future transfers imposed by applicable law.
Section 4.7 Pre-emptive Rights.
Subject At Closing, no Reach Messaging
Shareholders has any pre-emptive rights or any other rights to acquire any
shares of Reach Messaging that have not been waived or exercised.
Section 4.8 Accredited
Investor. All Reach Messaging Shareholders receiving shares of
FormulaWon pursuant to this Agreement are “accredited investors” within the
meaning of Rule 501(a) of Regulation D promulgated under the Securities
Act.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF REACH MESSAGING
AND
THE REACH MESSAGING SHAREHOLDERS
The
obligations of Reach Messaging and the Reach Messaging Shareholders to
consummate the transactions contemplated by this Agreement are subject to the
fulfillment, at or before the Closing Date, of the following conditions, any one
or more of which may be waived by Reach Messaging and the Reach Messaging
Shareholders at their sole discretion:
Section 5.1 Representations and
Warranties of FormulaWon. All representations and warranties made by
FormulaWon in this Agreement shall be true and correct in all material respects
on and as of the Closing Date, except insofar as the representations and
warranties relate expressly and solely to a particular date or period, in which
case, subject to the limitations applicable to the particular date or period,
they will be true and correct in all material respects on and as of the Closing
Date with respect to such date or period.
12
Section 5.2 Agreements and
Covenants. FormulaWon shall have performed and complied in all material
respects with all agreements and covenants required by this Agreement to be
performed or complied with on or prior to the Closing Date.
Section 5.3 Consents and
Approvals. All consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement shall be in full force and effect on the
Closing Date.
Section 5.4 No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition of
FormulaWon shall be in effect; and no action or proceeding before any court or
governmental or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
Section 5.5 Other Closing
Documents. Reach Messaging shall have received such certificates,
instruments and documents in confirmation of the representations and warranties
of FormulaWon, FormulaWon’s performance of its obligations hereunder, and/or in
furtherance of the transactions contemplated by this Agreement as the Reach
Messaging Shareholders and/or their respective counsel may reasonably
request.
Section 5.6 Documents. FormulaWon
must have caused the following documents to be delivered to Reach Messaging and
the Reach Messaging Shareholder:
a. share
certificates evidencing the FormulaWon Shares registered in the name of the
Reach Messaging Shareholders;
b. a
Secretary’s Certificate, dated the Closing Date, certifying attached copies of
(A) the FormulaWon Charter Documents, (B) the resolutions of the
FormulaWon Board approving this Agreement and the transactions contemplated
hereby and thereby; and (C) the incumbency of each authorized officer of
FormulaWon signing this Agreement to which FormulaWon is a party;
c. an
Officer’s Certificate, dated the Closing Date, certifying as to
Sections 5.1, 5.2, 5.3, 5.4, 5.7, and 5.8.
d. a
Certificate of Good Standing of FormulaWon, dated as of a date not more than
five business days prior to the Closing Date;
e. this Agreement is duly
executed;
f. the
resignation of Fitra Iriani as officer of FormulaWon as of the Closing
Date;
f. the
resignation of Fitra Iriani as director of FormulaWon on the Closing
Date;
g. the
amendment of the Articles of Incorporation to change its name to Reach Messaging
Holdings, Inc.; and
h. such
other documents as Reach Messaging may reasonably request for the purpose of (A)
evidencing the accuracy of any of the representations and warranties of
FormulaWon, (B) evidencing the performance of, or compliance by FormulaWon with
any covenant or obligation required to be performed or complied with by
FormulaWon, (C) evidencing the satisfaction of any condition referred to in this
Article V, or (D) otherwise facilitating the consummation or performance of any
of the transactions contemplated by this Agreement.
13
Section 5.7 Cancellation of
Shares. The 76,860,000
shares of FormulaWon Common Stock owned by Fitra Iriani shall be irrevocably
cancelled immediately following the issuance of the shares of Common Stock to
the Reach Messaging Shareholders. Evidence of such cancellation shall
be delivered to Reach Messaging.
Section 5.8 No Material Adverse
Effect. There shall not
have been any event, occurrence or development that has resulted in or could
result in a Material Adverse Effect on or with respect to
FormulaWon.
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF FORMULAWON
The
obligations of FormulaWon to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing Date, of the
following conditions, any one or more of which may be waived by FormulaWon in
its sole discretion:
Section 6.1 Representations and
Warranties of Reach Messaging and the Reach Messaging Shareholders. All
representations and warranties made by Reach Messaging and the Reach Messaging
Shareholders on behalf of themselves individually in this Agreement shall be
true and correct on and as of the Closing Date except insofar as the
representation and warranties relate expressly and solely to a particular date
or period, in which case, subject to the limitations applicable to the
particular date or period, they will be true and correct in all material
respects on and as of the Closing Date with respect to such date or
period.
Section 6.2 Agreements and
Covenants. Reach Messaging and the Reach Messaging Shareholders shall
have performed and complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by each of
them on or prior to the Closing Date.
Section 6.3 Consents and
Approvals. All consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement, shall have been duly obtained and shall be in
full force and effect on the Closing Date.
Section 6.4 No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or other governmental or regulatory authority, domestic or foreign,
nor any statute, rule, regulation, decree or executive order promulgated or
enacted by any government or governmental or regulatory authority, domestic or
foreign, that declares this Agreement invalid or unenforceable in any respect or
which prevents the consummation of the transactions contemplated hereby, or
which materially and adversely affects the assets, properties, operations,
prospects, net income or financial condition of Reach Messaging shall be in
effect; and no action or proceeding before any court or government or regulatory
authority, domestic or foreign, shall have been instituted or threatened by any
government or governmental or regulatory authority, domestic or foreign, or by
any other person, or entity which seeks to prevent or delay the consummation of
the transactions contemplated by this Agreement or which challenges the validity
or enforceability of this Agreement.
14
Section 6.5 Other Closing
Documents. FormulaWon shall have received such certificates, instruments
and documents in confirmation of the representations and warranties of Reach
Messaging and the Reach Messaging Shareholders, the performance of Reach
Messaging and the Reach Messaging Shareholders’ respective obligations hereunder
and/or in furtherance of the transactions contemplated by this Agreement as
FormulaWon or its counsel may reasonably request.
Section 6.6 Documents. Reach
Messaging and the Reach Messaging Shareholders must deliver to FormulaWon at the
Closing:
a. share
certificates evidencing the number of Reach Messaging Shares, along with
executed share transfer forms transferring such Reach Messaging Shares to
FormulaWon;
b. this
Agreement to which the Reach Messaging and the Reach Messaging Shareholders is a
party, duly executed;
c. such
other documents as FormulaWon may reasonably request for the purpose of (A)
evidencing the accuracy of any of the representations and warranties of the
Reach Messaging and the Reach Messaging Shareholders , (B) evidencing the
performance of, or compliance by Reach Messaging and the Reach Messaging
Shareholders with, any covenant or obligation required to be performed or
complied with by Reach Messaging and the Reach Messaging Shareholders, as the
case may be, (C) evidencing the satisfaction of any condition referred to in
this Article VI, or (D) otherwise facilitating the consummation or performance
of any of the transactions contemplated by this Agreement.
Section 6.7 No Claim Regarding Stock
Ownership or Consideration. There must not have been made or threatened
by any Person, any claim asserting that such Person (a) is the holder of, or has
the right to acquire or to obtain beneficial ownership of the Reach Messaging
Shares, or any other stock, voting, equity, or ownership interest in, Reach
Messaging, or (b) is entitled to all or any portion of the FormulaWon
Shares.
15
ARTICLE
VII
POST-CLOSING
AGREEMENTS
Section 7.1 SEC Documents. From
and after the Closing Date, in the event the SEC notifies FormulaWon of its
intent to review any Public Report filed prior to the Closing Date or FormulaWon
receives any oral or written comments from the SEC with respect to any Public
Report filed prior to the Closing Date, FormulaWon shall promptly notify the
FormulaWon Controlling Stockholders and the FormulaWon Controlling Stockholders
shall reasonably cooperate with FormulaWon in responding to any such oral or
written comments.
ARTICLE
VIII
INDEMNIFICATION
Section 8.1 Survival of
Provisions. The respective representations, warranties, covenants and
agreements of each of the parties to this Agreement (except covenants and
agreements which are expressly required to be performed and are performed in
full on or before the Closing Date) shall expire on the first day of the
one-year anniversary of the Closing Date (the “Survival Period”). The right
to indemnification, payment of damages or other remedy based on such
representations, warranties, covenants, and obligations will not be affected by
any investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution
and delivery of this Agreement, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant, or obligation. The
waiver of any condition based on the accuracy of any representation or warranty,
or on the performance of or compliance with any covenant or obligation, will not
affect the right to indemnification, payment of damages, or other remedy based
on such representations, warranties, covenants, and obligations.
Section 8.2 Indemnification.
a. Indemnification Obligations
in favor of the Controlling Stockholders of FormulaWon. From and after
the Closing Date until the expiration of the Survival Period, Reach Messaging
shall reimburse and hold harmless the FormulaWon Controlling Stockholders (each
such person and his heirs, executors, administrators, agents, successors and
assigns is referred to herein as a “FormulaWon Indemnified Party”)
against and in respect of any and all damages, losses, settlement payments, in
respect of deficiencies, liabilities, costs, expenses and claims suffered,
sustained, incurred or required to be paid by any FormulaWon Indemnified Party,
and any and all actions, suits, claims, or legal, administrative, arbitration,
governmental or other procedures or investigation against any FormulaWon
Indemnified Party, which arises or results from a third-party claim brought
against a FormulaWon Indemnified Party to the extent based on a breach of the
representations and warranties with respect to the business, operations or
assets of Reach Messaging. All claims of FormulaWon pursuant to this Section 8.2
shall be brought by the FormulaWon Controlling Stockholders on behalf of
FormulaWon and those Persons who were stockholders of FormulaWon Company
immediately prior to the Closing Date. In no event shall any such
indemnification payments exceed $100,000 in the aggregate from Reach
Messaging. No claim for indemnification may be brought under
this Section 8.2(a) unless all claims for indemnification, in the aggregate,
total more than $10,000.
16
b. Indemnification in favor of
Reach Messaging and the Reach Messaging Shareholders. From and after the
Closing Date until the expiration of the Survival Period, the FormulaWon
Controlling Stockholders will, severally and not jointly, indemnify and hold
harmless Reach Messaging, the Reach Messaging Shareholders, and their respective
officers, directors, agents, attorneys and employees, and each person, if any,
who controls or may “control” (within the meaning of the Securities Act) any of
the forgoing persons or entities (hereinafter referred to individually as a
“Reach Messaging Indemnified
Person”) from and against any and all losses, costs, damages, liabilities
and expenses arising from claims, demands, actions, causes of action, including,
without limitation, legal fees, (collectively, “Damages”) arising out of any
(i) any breach of representation or warranty made by FormulaWon or the
FormulaWon Controlling Stockholders in this Agreement, and in any certificate
delivered by FormulaWon or the FormulaWon Controlling Stockholders pursuant to
this Agreement, (ii) any breach by FormulaWon or the FormulaWon Controlling
Stockholders of any covenant, obligation or other agreement made by FormulaWon
or the FormulaWon Controlling Stockholders in this Agreement, and (iii) a
third-party claim based on any acts or omissions by FormulaWon or the FormulaWon
Controlling Stockholders. In no event shall any such indemnification payments
exceed $100,000 in the aggregate from all FormulaWon Controlling
Stockholders. No claim for indemnification may be brought under this
Section 8.2(b) unless all claims for indemnification, in the aggregate, total
more than $10,000.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section 9.1 Publicity. No party
shall cause the publication of any press release or other announcement with
respect to this Agreement or the transactions contemplated hereby without the
consent of the other parties, unless a press release or announcement is required
by law. If any such announcement or other disclosure is required by law, the
disclosing party agrees to give the non-disclosing parties prior notice and an
opportunity to comment on the proposed disclosure.
Section 9.2 Successors and
Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns; provided,
however, that no party shall assign or delegate any of the obligations created
under this Agreement without the prior written consent of the other
parties.
Section 9.3 Fees and Expenses.
Except as otherwise expressly provided in this Agreement, all legal and other
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs or expenses.
Section 9.4 Notices. All notices
and other communications given or made pursuant hereto shall be in writing and
shall be deemed to have been given or made if in writing and delivered
personally or sent by registered or certified mail (postage prepaid, return
receipt requested)or facsimile to the parties at the following
addresses:
If to
Reach Messaging or the Reach Messaging Shareholders, to:
Reach
Messaging, Inc.
0000
Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxx Xxx, Chief Executive Officer
17
With a
copy to (which copy shall not constitute notice):
Xxxxxx
& Jaclin, LLP
Attn:
Xxxxx X. Xxxxxx, Esq.
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
If to
FormulaWon or the FormulaWon Controlling Stockholders, to:
0000
Xxxxxxx Xxx #000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
With a
copy to (which copy shall not constitute notice):
Xxxxxx
& Xxxxxx, LLP
Attn:
Xxxx X. Xxxxx, Esq.
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
or to
such other persons or at such other addresses as shall be furnished by any party
by like notice to the others, and such notice or communication shall be deemed
to have been given or made as of the date so delivered or mailed. No change in
any of such addresses shall be effective insofar as notices under this Section
9.4 are concerned unless such changed address is located in the United States of
America (or, in the case of the Reach Messaging Shareholders or Reach Messaging,
in the British Virgin Islands or the United States of America) and notice of
such change shall have been given to such other party hereto as provided in this
Section 9.4.
Section 9.5 Entire Agreement.
This Agreement, together with the exhibits hereto, represents the entire
agreement and understanding of the parties with reference to the transactions
set forth herein and no representations or warranties have been made in
connection with this Agreement other than those expressly set forth herein or in
the exhibits, certificates and other documents delivered in accordance herewith.
This Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the subject matter of this Agreement and all prior drafts of this Agreement, all
of which are merged into this Agreement. No prior drafts of this Agreement and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section 9.6 Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible so as to be
valid and enforceable.
Section 9.7 Titles and Headings.
The Article and Section headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
18
Section 9.8 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall be considered one and the
same agreement. Fax and PDF copies shall be considered originals for all
purposes.
Section 9.9 Convenience of Forum;
Consent to Jurisdiction. The parties to this Agreement, acting for
themselves and for their respective successors and assigns, without regard to
domicile, citizenship or residence, hereby expressly and irrevocably elect as
the sole judicial forum for the adjudication of any matters arising under or in
connection with this Agreement, and consent and subject themselves to the
jurisdiction of, the courts of the State of Florida, and/or the United States
District Court for Florida, in respect of any matter arising under this
Agreement. Service of process, notices and demands of such courts may be made
upon any party to this Agreement by personal service at any place where it may
be found or giving notice to such party as provided in Section 9.4.
Section 9.10 Enforcement of the
Agreement. The parties hereto agree that irreparable damage would occur
if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereto, this being in addition to any other remedy to which they are entitled at
law or in equity.
Section 9.11 Governing Law. This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of California without giving effect to the choice of law
provisions thereof.
Section 9.12 Amendments and
Waivers. Except as otherwise provided herein, no amendment or waiver of
any provision of this Agreement shall be valid unless the same shall be in
writing and signed by all of the parties hereto. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any such prior or subsequent
occurrence.
[REST OF
PAGE DELIBERATELY LEFT BLANK]
19
[SIGNATURE
PAGE TO SHARE EXCHANGE AGREEMENT]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
FORMULAWON
, INC.
By:__________________________________________
Name:
Fitra Iriani
Title:
Chief Executive Officer
REACH
MESSAGING, INC.
By:___________________________________________
Name: Xxxxx Xxx
Title: Chief Executive Officer
FORMULAWON’S
CONTROLLING STOCKHOLDERS
By:____________________________________________
20
[SIGNATURE
PAGE OF REACH MESSAGING SHARHOLDERS
REACH
MESSAGING SHAREHOLDERS
By:______________________________________________________
By:______________________________________________________
By:______________________________________________________
By:______________________________________________________
21
