EXHIBIT 2
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement") is entered into and
effective as of March 5, 2000, by and between Xxxx Xxxx ("Xxxx") and Xxxx X.
Xxxx ("Xxxx") (Xxxx and Xxxx known collectively as the "SHAREHOLDERS"); Carsten
Mide ("Mide"); WEB PARTNERS, INC., a Florida corporation ("WPI") and ANYOX
RESOURCES INC., a Nevada corporation ("ANYX" or the "COMPANY"); and those
parties that join this Agreement after the date hereof but prior to Closing
(such parties and Mide known collectively as the "PROXY GRANTORS").
1. RECITALS
This Agreement is entered into with reference to and in contemplation of
the following facts, circumstances and representations:
1. The SHAREHOLDERS are the owners of 2,000,000 shares (the "WPI Shares")
of the common stock and/or preferred shares of WPI which represents 57%
of the issued and outstanding shares of the common stock and/or
preferred shares of WPI.
2. ANYX desires to issue a total of 4,000,000 shares of its common stock
(the "ANYX Shares") to the SHAREHOLDERS in exchange for the WPI Shares
on a two (2) shares of ANYX for one (1) share of WPI basis.
3. The SHAREHOLDERS desire to exchange the WPI Shares for the ANYX Shares
in accordance with the terms and conditions of this Agreement.
4. The parties hereto desire that, consistent with all applicable law,
additional steps be taken following the issuance of the ANYX Shares to
permit WPI to become a wholly-owned subsidiary of ANYX.
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5. WPI and the PROXY GRANTORS desire that this transaction be
consummated.
2. EXCHANGE AND ISSUANCE OF SHARES
2.1 Exchange of ANYX Shares: Subject to the terms and conditions of this
Agreement, ANYX shall exchange and deliver to the SHAREHOLDERS, a total of
4,000,000 restricted shares of ANYX common stock, apportioned 2,000,000 shares
to Xxxx and 2,000,000 shares to Xxxx.
2.2 Exchange of WPI Shares: Subject to the terms and conditions of this
Agreement, the SHAREHOLDERS shall exchange and deliver to ANYX, through ANYX's
transfer agent, a total of 2,000,000 shares of WPI common stock and/or preferred
shares, apportioned 1,000,000 shares to Xxxx and 1,000,000 shares to Xxxx, which
represents 57% of the issued and outstanding shares of WPI.
2.3 Nature of ANYX Shares: The SHAREHOLDERS shall be issued the ANYX
Shares which, unless otherwise contractually restricted, shall be subject to the
resale provisions of SEC Rule 144.
2.4 Restricted Nature of ANYX Shares: Xxxx and Xxxx hereby acknowledge
that, upon issuance of the ANYX Shares, each will become an "affiliate" or
"control person" of ANYX subject to certain limitations with respect to the sale
of its ANYX Shares. Accordingly, as a result of such a designation, the sale of
the ANYX Shares will be limited by SEC Rule 144.
2.5 Private Sale Acknowledgment: The parties acknowledge and agree that
the exchange and issuance of the ANYX Shares is being undertaken as a private
sale pursuant to Section 4(2) of the Securities Act of 1933, as amended and
Nevada Revised Statutes Chapters 78 and 90 and is not being transacted via a
broker-dealer and/or in the public market place.
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2.6 Status of Present Share Ownership and Contemplated Share Issuance by
ANYX: Upon the Closing of the share exchange contemplated by this Agreement,
the following will be the resulting share ownership of ANYX:
Name No. Shares % Ownership
------ ---------- -----------
1. Present ANYX Rule
504 Shareholders 6,024,800 30.08%
2. Restricted Shares 4,003,700 19.99%
3. WPI Shareholders 4,000,000 19.97%
4. New Investor Shares 6,000,000 29.96%
---------- -------
TOTALS 20,028,500 100.00%
========== =======
3. GRANT OF IRREVOCABLE PROXIES COUPLED WITH AN INTEREST
3.1 Grant of Irrevocable Proxies: The PROXY GRANTORS hereby
irrevocably grant to the SHAREHOLDERS proxies to vote their shares, which
proxies are coupled with an interest as set forth in Section 3.2. Such proxies
shall be evidenced by proxy cards in the form of Exhibit A hereto, which shall
be delivered to the SHAREHOLDERS at Closing.
3.2 Inducement to Enter Into and Perform Agreement: The PROXY GRANTORS
hereby acknowledge that they have examined the transactions contemplated by this
Agreement, had the opportunity to ask questions and receive answers concerning
the terms and conditions of the transactions contemplated by this Agreement, and
obtained any additional information that they considered necessary to their
examination and evaluation of the transactions contemplated by this Agreement.
After such assessment, the PROXY GRANTORS have concluded that it is in their
interest that the transactions contemplated by this Agreement be consummated and
that they therefore are willing to grant irrevocable proxies to the SHAREHOLDERS
to induce them to
SHARE EXCHANGE AGREEMENT
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enter into this Agreement. The parties to this Agreement other than the
SHAREHOLDERS acknowledge that the SHAREHOLDERS have demanded as a material
requirement of their willingness to enter into this Agreement, that the
SHAREHOLDERS have irrevocable proxies to vote the shares of the PROXY GRANTORS
in order to accomplish the purposes of this Agreement, and that, absent such
grants of irrevocable proxies, the SHAREHOLDERS would not enter into this
Agreement because they would not have the certainty that they require that the
transactions contemplated by this Agreement will be consummated. The PROXY
GRANTORS expressly agree and understand that the irrevocable grant of their
proxies is coupled with an interest, and as a result may not be withdrawn or
otherwise retrieved from or denied to the SHAREHOLDERS, except by its terms as
set forth in Exhibit A hereto.
3.3 No General Solicitation: The SHAREHOLDERS hereby confirm that they
have not contacted, directly or indirectly, any shareholders of ANYX other than
the PROXY GRANTORS with respect to their request that they obtain irrevocable
proxies to vote shares of ANYX.
3.4 Agreement to Cancel Shares: In further consideration of the
SHAREHOLDERS agreeing to enter into this Agreement and to consummate the
transactions contemplated by this Agreement, Mide agrees, upon demand of the
SHAREHOLDERS, to cancel his shares of ANYX stock, and upon cancellation ANYX
shall reconvey to Mide the "Fame" properties. In furtherance of this covenant,
Mide agrees to execute an Irrevocable Order to Cancel Shares, in the form of
Exhibit B hereto, which shall be delivered to the SHAREHOLDERS at Closing.
4. DIRECTORS AND OFFICERS
On Closing, the existing officers of ANYX shall resign, and the existing
directors of ANYX shall resign in a sequential manner so that Xxxxx Xxxxxxx and
Xxxxxx Xxxxxx shall be appointed as directors of ANYX immediately following the
Closing.
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5. AMENDMENT AND RESTATEMENT OF ARTICLES OF INCORPORATION
Each of the parties hereto agrees to use its best efforts to cause the
Articles of Incorporation of ANYX to be amended and restated as set forth in
Exhibit C hereto and the Bylaws of ANYX to be amended and restated substantially
as set forth in Exhibit D hereto. As soon as practicable following the Closing,
ANYX agrees to hold a meeting of its board of directors for the purpose of
calling a special meeting of shareholders to amend and restate the Articles of
Incorporation of ANYX as set forth in Exhibit C hereto. In connection with such
meeting, ANYX shall establish a record date, provide notices, information
statements and such other materials as may be required by applicable law.
6. INTERCOMPANY LOANS: On Closing of the issuance of the shares of Common
Stock to Xxxx and Xxxx, upon delivery by WPI to ANYX of a demand promissory note
in the form of Exhibit E hereto, ANYX shall make intercompany advances to WPI
according to the terms of the note.
7. CREATION OF CLASS A PREFERRED STOCK
AND OTHER TERMS AND CONDITIONS
As further consideration for the acquisition of the WPI Shares, ANYX hereby
agrees as follows:
7.1 Creation and Approval of Class A Preferred Stock: Upon shareholder
approval and effectiveness of the amendment and restatement of ANYX's Articles
of Incorporation, ANYX shall create a new class of preferred stock, consisting
of 200,000 shares, to be designated as "Class A Preferred Stock", which shall,
in addition to customary protections against dilution by virtue of stock
dividends, stock splits or similar transactions, have the rights as set forth in
Paragraph 7.2 below. The initial conversion ratio of the Class A Preferred
Stock shall be on a one-for-one basis.
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7.2 Statement of Certain Rights For Class A Preferred Shares: The Class A
Preferred Shares shall have the preferences, limitations and relative rights set
forth in Exhibit F hereto.
7.3 Right to Exchange Shares: Xxxx and Xxxx shall each have the right,
upon creation of the Class A Preferred Stock, for a period of ten days, to
exchange 100,000 shares of their ANYX Shares on a one-for-one basis for shares
of Class A Preferred Stock.
8. VOLUNTARY EXCHANGE OFFERING
ANYX shall prepare an Offering Memorandum pursuant to which it shall offer
each shareholder of WPI other than the SHAREHOLDERS the opportunity to exchange
each share of WPI stock that they hold for two shares of ANYX common stock. No
later than 10 days after the establishment of ANYX's Class A Preferred Stock and
the issuance thereof to Xxxx and Xxxx, ANYX shall promptly commence a private
offering of its common stock pursuant to the Offering Memorandum in which it
shall offer each shareholder of WPI other than the SHAREHOLDERS the opportunity
to exchange each share of their WPI common stock for two shares of ANYX common
stock.
9. EMPLOYEE STOCK OPTION PLAN
9.1 Authorization and Approval of Employee Stock Option Plan: The parties
hereto still further agree to use their best efforts to cause the authorization
of an Employee Stock Option Plan (the "Plan") for the attraction and retention
of ANYX and its subsidiary WPI. The administration of the Plan shall be
undertaken by a compensation committee of not less than three (3) outside
directors of ANYX. Said Plan shall provide for those matters as set forth
below. Following the offering contemplated by Section 8 of this Agreement, ANYX
shall file a Form S-8 registration statement to register all shares potentially
subject to issuance under the Plan.
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9.2 Reservation of Shares: ANYX shall reserve and may issue under the
Plan, One Million Five Hundred Thousand (1,500,000) shares of employee stock
options in year one and/or two. Said options shall be exercisable within five
(5) years at exercise prices which shall average not less than One Cent ($0.01).
The allocation and distribution of said stock options shall be made available on
the closing of the annual or quarterly statements of ANYX (10Q or 10K) for the
periods included during year one from the date of the execution of this
Agreement and allowing for the audited confirmation of revenue generated by
ANYX.
9.3 Initial Reservation Milestone: Subject to ANYX achieving Two Million
Dollars ($2,000,000) of revenue during the one year period immediately following
the execution of this Agreement, Five Million Five Hundred Thousand (5,500,000)
shares of stock shall be reserved and may be issued by the board of directors
subject to the Plan. Said options shall be exercisable within five (5) years at
exercise prices which average not less than Six Dollars ($6.00). The allocation
and distribution of said stock options shall be made available on the closing of
the annual or quarterly statement of the ANYX (10K or 10Q) for the periods
included during year one from the date of the execution of this Agreement and
allowing for the audited confirmation of revenue generated by ANYX.
9.4 Second Share Reservation Milestone: Subject to ANYX achieving Five
Million Dollars ($5,000,000) of revenue during the second, one-year period
immediately following the execution of this Agreement, Seven Million
(7,000,000) shares of stock shall be reserved and may be issued by the board of
directors subject to the Plan. Said shares shall be exercisable within five (5)
years at exercise prices which shall average not less than Six Dollars ($6.00).
The allocation and distribution of said stock options shall be made available on
the closing of the annual and quarterly statement of ANYX (10K or 10Q) for the
periods included during year one from the date of the execution of this
Agreement and allowing for the audited confirmation of revenue generated by
ANYX.
9.5 Maximum Share Reservation Milestone: The maximum shares available
for issuance under the Plan shall be Fourteen Million (14,000,000) in year one
and year two combined. Said shares shall be subject to whatever reasonable lock-
up agreement that may be required of other shareholders by any underwriter
engaged by ANYX in future stock offerings or underwritings of future stock
offerings of ANYX. To effect said lock-up requirements, shares reserved for
SHARE EXCHANGE AGREEMENT
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and delivered to employees in the exercise of their stock options may be
imprinted with an appropriate legend outlining the terms of said lock-up period.
Said lock-up period shall not to exceed 180 days.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The COMPANY represents and warrants to the SHAREHOLDERS and WPI as follows:
10.1 Organization: ANYX is a corporation duly incorporated and validly
existing under the laws of the State of Nevada and is in good standing with
respect to all of its regulatory filings.
10.2 Capitalization: The authorized capital of ANYX consists of
200,000,000 common shares with a par value $.001 and with the exception of the
common shares described in Paragraph 2.6, no common shares will have been
validly authorized and issued by the COMPANY prior to the Closing of the
contemplated share exchange. Each PROXY GRANTOR holds of record 500,000 shares
of common stock of the COMPANY.
10.3 Financial Statements: ANYX has furnished to the SHAREHOLDERS and WPI
audited financial statements for the period ending June 30, 1999. That at the
Closing the financial affairs of ANYX will be materially the same as represented
in the financial statements for the period ending June 30, 1999, except that
ANYX has received proceeds of $5,100,000 in connection with a private placement
of 6,000,000 shares, as indicated in the table in Section 2.6.
10.4 Books and Records: All material transactions of ANYX have been
promptly and properly recorded or filed in or with its books and records and the
Minute Book of ANYX contains records of all meetings and proceedings of the
shareholders and directors thereof.
SHARE EXCHANGE AGREEMENT
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10.5 Legal Compliance: To the best of its knowledge, ANYX is not in
breach of any laws, ordinances, statutes, regulations, by-laws, orders or
decrees to which ANYX is subject or which apply to it or any of its assets.
10.6 Tax Returns: All tax returns and reports of ANYX required by law to
be filed prior to the date hereof have been filed and are substantially true,
complete and correct and all taxes and governmental charges have been paid.
10.7 Adverse Financial Events: ANYX has not experienced nor is it aware of
any occurrence or event which has had or might reasonably be expected to have a
material adverse effect on its financial condition.
10.8 Disputes, Claims and Investigations: There are no disputes, claims,
actions, suits, judgments, investigations or proceedings outstanding or pending
or to the knowledge of ANYX threatened against or affecting ANYX at law or in
equity or before or by any federal, state, municipal or other governmental
department, commission, board, bureau or agency.
10.9 Employee Liabilities: ANYX has no known liability to former employees
or any liability to any governmental authorities with respect to current or
former employees.
10.10 No Conflicts or Agreement Violations: The execution, delivery and
performance of this Agreement will not conflict with or be in violation of the
articles or by-laws of ANYX or of any agreement to which ANYX is a party and
will not give any person or company a right to terminate or cancel any agreement
or right enjoyed by ANYX and will not result in the creation or imposition of
any lien, encumbrance or restriction of any nature whatsoever in favor of a
third party upon or against the assets of ANYX.
10.11 Validly Issued and Authorized Shares: That the ANYX Shares will be
validly authorized and issued by the COMPANY, they will be fully paid and non-
assessable and they will be issued in full compliance with all federal and state
securities laws.
10.12 Restrictive Legend: That the ANYX Shares will have a restrictive
legend imposed thereon identifying them as "Restricted Shares" which are
SHARE EXCHANGE AGREEMENT
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subject to the conditions and limitations of SEC Rule 144 with respect to their
sale in the U.S. public market place.
10.13 Corporate Authority: The officers or representatives of the COMPANY
executing this Agreement represent that they have been authorized to execute
this Agreement pursuant to a resolution of the Board of Directors of the
COMPANY.
11. REPRESENTATIONS OF SHAREHOLDERS AND WPI
The SHAREHOLDERS and WPI collectively and individually hereby represent and
warrant to ANYX as follows:
11.1 Share Ownership: That the SHAREHOLDERS are the owners, beneficially
and of record, of the WPI Shares and said shares are free and clear of all
liens, encumbrances, claims, charges and restrictions.
11.2 Transferability of WPI Shares: That the SHAREHOLDERS have full power
to transfer the WPI Shares to ANYX without obtaining the consent or approval of
any other person or governmental authority.
11.3 Validly Issued and Authorized Shares: That the WPI Shares are
validly authorized and issued, fully paid, and nonassessable, and the WPI Shares
have been so issued in full compliance with all securities laws of the State of
Florida.
11.4 Organization: WPI is a corporation duly incorporated and validly
existing under the laws of the State of Florida and is in good standing with
respect to all of its regulatory filings.
11.5 Capitalization: The authorized capital of WPI consists of 10,000,000
common shares with $0.005 par value and of which 3,452,432 common shares are
issued and outstanding as fully paid and non-assessable shares.
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11.6 Financial Statements: WPI has furnished to ANYX financial statements
for the period ending October 25, 1999. That at the Closing the financial
affairs of WPI will be materially the same as represented in these same
financial statements. Schedule 11.6 contains a listing of WPI's obligations as
of the Closing.
11.7 Books and Records: All material transactions of WPI have been
promptly and properly recorded or filed in or with its books and records and the
Minute Book of WPI contains records of all meetings and proceedings of the
shareholders and directors thereof.
11.8 Legal Compliance: WPI is not in breach of any laws, ordinances,
statutes, regulations, by-laws, orders or decrees to which WPI is subject or
which apply to it or any of its assets.
11.9 Tax Returns: All tax returns and reports of WPI required by law to
be filed prior to the date hereof have been filed and are true, complete and
correct and all taxes and governmental charges have been paid.
11.10 Adverse Financial Events: WPI has not experienced nor is it aware
of any occurrence or event which has had or might reasonably be expected to have
a material adverse effect on its financial condition.
11.11 Disputes, Claims and Investigations: There are no disputes, claims,
actions, suits, judgments, investigations or proceedings outstanding or pending
or to the knowledge of WPI threatened against or affecting WPI at law or in
equity or before or by any federal, municipal or other governmental department,
commission, board, bureau or agency.
11.12 Employee Liabilities: WPI has no liability to former employees or
any liability to any government authorities with respect to current or former
employees.
11.13 No Conflicts or Agreement Violations: The execution, delivery and
performance of this Agreement will not conflict with or be in violation of the
Articles of Incorporation of WPI or of any agreement to which WPI is a party and
will not give any person or company a right to terminate or cancel any agreement
SHARE EXCHANGE AGREEMENT
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or right enjoyed by WPI and will not result in the creation or imposition of any
lien, encumbrance or restriction of any nature whatsoever in favor of a third
party upon or against the assets of WPI.
11.14 No Liens: That WPI has not received a notice of any assignment,
lien, encumbrance, claim or charge against the WPI Shares.
11.15 Ownership of Proprietary Technology: That WPI is the owner of all
right, title and interest in that certain proprietary technology free and clear
of any lien, encumbrance, claim or charge which is described below and which is
collectively referred to herein as the "Technology":
1. "CyberSpots": Online, interactive-multimedia, rich-media
commercial spots which are capable of quickly reaching the
audience with minimal interruptions.
2. Deliver Verification Technology ("DVT"): DVT provides an online
advertising measurement system that verifies audience reach and
spot delivery.
WPI has made application for a patent in connection with the Technology, but no
patent has been issued. To WPI's knowledge, there is no reason why it should
not ultimately obtain a patent in connection with the Technology. WPI cannot
guarantee, however, that it will obtain a patent in connection with the
Technology.
11.16 Corporate Authority: The officers or representatives of WPI
executing this Agreement represent that they have been authorized to execute
this Agreement pursuant to a resolution of the Boards of Directors of WPI.
12. REPRESENTATIONS AND WARRANTIES
OF SHAREHOLDERS ALONE
The SHAREHOLDERS alone further represent and warrant to ANYX as follows
with respect to the ANYX Shares that:
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12.1 Financially Responsible: They are financially responsible, able to
meet their obligations and acknowledge that this investment will be speculative.
They understand that the ANYX Shares is a "restricted security" within the
meaning of the Act, and certificates representing the ANYX Shares are legended
with certain restrictions on the resale of the ANYX Shares and the ANYX Shares
may not be resold without a valid exemption from registration under the Act, or
until a registration statement is filed with respect thereto under the Act.
There can be no assurance that upon registration of the ANYX Shares pursuant to
the Act, that a market for the ANYX Shares will exist on an exchange or market
or quotation system. Accordingly, the SHAREHOLDERS are aware that there are
legal and practical limits on their ability to sell or dispose of the ANYX
Shares, and, therefore that they must bear the economic risk of the investment
for an indefinite period of time. The SHAREHOLDERS have adequate means of
providing for their current needs and possible personal contingencies and
haveneed for only limited liquidity of this investment. The SHAREHOLDERS'
commitment to illiquid investments is reasonable in relation to their net worth.
They are capable of bearing the high degree of economic risks and burdens of
this investment, including but not limited to the possibility of complete loss
of all their investment capital and the lack of a liquid market, such that they
may not be able to liquidate readily the investment whenever desired or at the
then current asking price.
12.2 Investment Experience: They have had experience in the business of
investments in one or more of the following: (i) investment experience with
securities such as stocks and bonds; (ii) ownership of interests in
partnerships, new ventures and start-up companies; (iii) experience in business
and financial dealings; and that they can protect their own interests in an
investment of this nature. They have such knowledge and experience in financial
and business matters that they are capable of evaluating the merits and risks of
the prospective investment in the ANYX Shares, which are substantial and have in
fact evaluated such merits and risks in making investment decision to purchase
the ANYX Shares. The SHAREHOLDERS, by virtue of their business and financial
expertise, have the capacity to protect their own interest in connection with
this transaction, or have consulted with tax, financial, legal or business
advisors as to the appropriateness of an investment in the ANYX Shares. The
SHAREHOLDERS have relied completely on the advice of, or have consulted with,
their own personal tax, investment, legal or other advisors and have not
SHARE EXCHANGE AGREEMENT
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relied on ANYX or any of its affiliates, officers, directors, attorneys,
accountants or any affiliates of any thereof and each other person, if any, who
controls any thereof, within the meaning of Section 15 of the Act.
12.3 Exempt Transaction: The SHAREHOLDERS understand that the ANYX Shares
is being offered and sold in reliance on specific exemptions from the
registration requirements of U.S. federal and state law and that the
representations, warranties, agreements, acknowledgments and understandings set
forth herein are being relied upon by ANYX in determining the applicability of
such exemptions and the suitability of the SHAREHOLDERS to acquire such ANYX
Shares.
12.4 Access to Information: They have had access to the information
regarding the financial condition of the COMPANY and they were able to request
copies of such information, ask questions of and receive answers from the
COMPANY regarding such information and any other information their desires
concerning the ANYX Shares, and all such questions have been answered to their
full satisfaction. They expressly acknowledge that they have reviewed the
public filings of ANYX with the SEC. In addition, they acknowledge their
understanding that the consummation of this transaction will make ANYX the
majority owner of WPI. In connection with this result, they acknowledge their
status as executive officers of WPI and their detailed understanding of WPI's
assets, business, financial condition and prospects.
12.5 Private Transaction: At no time were they presented with or
solicited by any leaflet, public promotional meeting, circular, newspaper or
magazine article, radio or television advertisement or any other form of general
advertising.
12.6 Investment Intent: The ANYX Shares are not being purchased with a
view to or for the resale or distribution thereof and they have no present plans
to enter into any contract, undertaking, agreement or arrangement for such
resale or distribution.
12.7 Due Diligence: That the SHAREHOLDERS shall have completed a due
diligence review of the affairs of ANYX and are satisfied with the results of
that review.
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Page 14
12.8 Restrictive Legend: The certificates representing the ANYX Shares
shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR ANY
OTHER SECURITIES AUTHORITIES. THEY HAVE BEEN ISSUED PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE ACT. THESE SECURITIES
MAY NOT BE SOLD OR TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR AN EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF THOSE SECURITIES LAWS. IN CONNECTION WITH ANY
SUCH SALE OR TRANSFER THE ISSUER MAY REQUIRE AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER AND ITS COUNSEL
THAT SUCH SALE OR TRANSFER MAY BE MADE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS.
ANYX may in its sole discretion place a "Blue Sky" legend on the certificates in
accordance with U.S. State securities laws or as required by applicable
securities laws.
13. CLOSING, ESCROW HOLDER AND
CONDITIONS TO CLOSING
13.1 Exchange Closing: The closing of the share exchange as contemplated
by this Agreement (the "Closing") shall occur at such time and place as may be
agreed among the parties, but in no event later than March 10, 2000, unless
otherwise extended in writing by the parties.
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Page 15
13.2 Escrow Conditions and Closing: At Closing the following will be
required:
1. Delivery of WPI Shares: The SHAREHOLDERS shall deliver the
certificate or certificates representing the 2,000,000 WPI
Shares duly endorsed for transfer accompanied by a duly
executed assignment of the WPI Shares to ANYX.
2. Delivery of ANYX Shares: ANYX shall deliver a total of
4,000,000 ANYX Shares apportioned 2,000,000 shares to Xxxx
and 2,000,000 shares to Xxxx.
3. Delivery of Certificates of Good Standing: Each corporate
party shall deliver a current Certificate of Good Standing
issued by the Nevada and Florida Secretary of State.
4. Requisite Corporate Resolutions: Each corporate party shall
deliver certified copies of resolutions from their respective
Boards of Directors authorizing the subject transaction.
5. Delivery of Proxies: Each PROXY GRANTOR set forth on the
final signature page hereto shall have joined this Agreement
and shall deliver duly executed irrevocable proxies as set
forth in Section 3.1, accompanied by their respective stock
certificates.
6. Delivery of Order to Cancel: Mide shall deliver his duly
executed irrevocable order to cancel shares as set forth in
Section 3.4, accompanied by his stock certificate.
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13.3 Close of Transaction: The subject transaction shall "close" upon the
satisfaction of the above conditions.
13.4 Notices: All notices given pursuant to this Agreement must be in
writing and may be given by (1) personal delivery, or (2) registered or
certified mail, return receipt requested, or (3) via facsimile transmission to
the parties as set forth below. Any party hereto may by notice so given change
its address for any future notices:
TRANSFER AGENT: Nevada Agency and Trust Company
00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
SHAREHOLDERS XXXX XXXX
AND WPI: XXXX XXXX
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
ANYX: 000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
Attn: President
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxx Xxxxxx Xxxxxxx P.L.L.C.
(which shall not 0000 Xxxxx Xxxxxx, Xxxxx 0000
constitute notice) Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Notice may be given to Mide and to the PROXY GRANTORS at the address and
facsimile numbers set forth below their names on the signature page.
14. COOPERATION, ARBITRATION, INTERPRETATION,
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Page 17
MODIFICATION AND ATTORNEY FEES
14.1 Cooperation of Parties: The parties further agree that they will do
all things necessary to accomplish and facilitate the purpose of this Agreement
and that they will sign and execute any and all documents necessary to bring
about and perfect the purposes of this Agreement.
14.2 Arbitration: The parties hereby submit all controversies, claims and
matters of difference arising out of this Agreement to arbitration in
Sarasota, Florida according to the rules and practices of the American
Arbitration Association from time to time in force. This submission and
agreement to arbitrate shall be specifically enforceable. The Agreement shall
further be governed by the laws of the State of Nevada.
14.3 Interpretation of Agreement: The parties agree that should any
provision of this Agreement be found to be ambiguous in any way, such ambiguity
shall not be resolved by construing such provisions or any part of or the entire
Agreement in favor of or against any party herein, but rather by construing the
terms of this Agreement fairly and reasonably in accordance with their generally
accepted meaning.
14.4 Modification of Agreement: This Agreement may be amended or modified
in any way at any time by an instrument in writing stating the manner in which
it is amended or modified and signed by each of the parties hereto. Any such
writing amending or modifying this Agreement shall be attached to and kept with
this Agreement.
14.5 Attorney Fees: If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of the Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it may be entitled.
14.6 Entire Agreement: This Agreement constitutes the entire Agreement
and understanding of the parties hereto with respect to the matters herein set
SHARE EXCHANGE AGREEMENT
Page 18
forth, and all prior negotiations, writings and understandings relating to the
subject matter of this Agreement are merged herein and are superseded and
canceled by this Agreement.
14.7 Counterparts: This Agreement may be signed in one or more
counterparts.
14.8 Facsimile Transmission Signatures: A signature received pursuant to
a facsimile transmission shall be sufficient to bind a party to this Agreement.
SHARE EXCHANGE AGREEMENT
Page 19
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as
of the date first set forth above.
SHAREHOLDERS: ANYOX RESOURCES INC.
/s/ Xxxx Xxxx /s/ Carsten Mide
------------------------------ ------------------------------
XXXX XXXX By Carsten Mide
Its President
/s/ Xxxx Xxxx
------------------------------
XXXX XXXX
MIDE WEB PARTNERS, INC.
/s/ Carsten Mide /s/ Xxxx Xxxx
------------------------------ ------------------------------
CARSTEN MIDE By Xxxx Xxxx
Its President
Notice Address:
------------------------------
------------------------------
------------------------------
------------------------------
Fax:
--------------------------
[signatures continued on next page]
SHARE EXCHANGE AGREEMENT
Page 20
Each undersigned hereby joins in that certain Share Exchange Agreement (the
"Agreement") entered into on March 5, 2000 by and between Xxxx Xxxx, Xxxx X.
Xxxx, Carsten Mide, WEB PARTNERS, INC., a Florida corporation and ANYOX
RESOURCES INC., a Nevada corporation, and agrees to be bound by the Agreement's
terms and conditions as a full party thereto and to perform all of its
obligations set forth in the Agreement.
PROXY GRANTORS:
MONTIER FINANCE S.A. ISLAY GROUP SERVICES INC. SUNART OVERSEAS LIMITED
/s/ Xxxxxxxxx Xxxxx /s/ Xxxx Xxxx /s/ Xxxxx Xxxx
------------------------------------ --------------------------------------- ---------------------------------------
By St. Luke Management Co. LTD. By St. Luke Management Co. LTD. By St. Luke Management Co. LTD.
-------------------------------- ----------------------------------- ---------------------------------------
Its Secretary Its Secretary Its Secretary
--------------------------- ------------------------------ -------------------------------
7 March 2000 7 March 2000 7 March 2000
------------------------------------ --------------------------------------- ---------------------------------------
(Date) (Date) (Date)
Notice Address: Notice Address: Notice Address:
00 Xxxxxxx Xxxx 00 Xxxxxxx Xxxx 00 Xxxxxxx Xxxx
------------------------------------ --------------------------------------- ---------------------------------------
Third Floor Third Floor Third Floor
------------------------------------ --------------------------------------- ---------------------------------------
Belize City Belize City Belize City
------------------------------------ --------------------------------------- ---------------------------------------
Belize Belize Belize
------------------------------------ --------------------------------------- ---------------------------------------
Fax: 000-000-000 Fax: 000-000-000 Fax: 000-000-000
------------------------------- --------------------------------- ----------------------------------
XXXXXXX ENTERPRISES X.X. XXXXXXX EQUITIES CORPORATION
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxx Xxxx
--------------------------------------- ---------------------------------------
By First Nevisian Services LTD. By First Nevisian Services LTD.
----------------------------------- -----------------------------------
Its Secretary Its Secretary
------------------------------ ------------------------------
7 March 2000 7 March 2000
--------------------------------------- ---------------------------------------
(Date) (Date)
Notice Address: Notice Address:
Henville Building Henville Building
--------------------------------------- ---------------------------------------
Charletown Charletown
--------------------------------------- ---------------------------------------
Nevis Nevis
--------------------------------------- ---------------------------------------
--------------------------------------- ---------------------------------------
Fax: 000-000-0000 Fax: 000-000-0000
--------------------------------- ---------------------------------
SHARE EXCHANGE AGREEMENT
Page 20
SCHEDULE 11.6
-------------
OBLIGATIONS OF WPI
------------------
SHARE EXCHANGE AGREEMENT
SCHEDULE 11.6
Exhibit A to
Share Exchange Agreement
IRREVOCABLE PROXY
THIS PROXY IS GRANTED PURSUANT TO A PRIVATE AGREEMENT AND HAS NOT BEEN SOLICITED
ON BEHALF OF THE BOARD OF DIRECTORS OR ANY OTHER PARTY
The undersigned hereby appoints Xxxx Xxxx and Xxxx Xxxx, or either of them, as
proxy for the undersigned, each with full power of substitution, to vote all
shares of the Common Stock of Anyox Resources Inc. which the undersigned would
be entitled to vote if personally present at any annual or special meeting of
shareholders of Anyox Resources Inc., and at any adjournments thereof, on any
proposal and any other matters properly brought before the meeting.
The undersigned specifically directs that this Proxy be voted in favor of the
Amendment and Restatement of the Articles of Incorporation of Anyox Resources
Inc. as contemplated by section 5 of that certain Share Exchange Agreement dated
March ___, 2000. In their discretion, the proxies are authorized to vote upon
such other business as may properly come before any meeting and at any
adjournment or postponement thereof. This Proxy, when properly executed, will
be voted in the manner directed herein by the undersigned.
This Proxy shall continue in force until the date 10 days after Anyox Resources
Inc. establishes a Class A Preferred Stock and offers it to Xxxx Xxxx and Xxxx
Xxxx as contemplated by section 7 of that certain Share Exchange Agreement dated
March ___, 2000. The Undersigned hereby agrees and understands that this proxy
is coupled with an interest as provided by section 3 of that certain Share
Exchange Agreement dated March ___, 2000, and therefore irrevocable, and as a
result may not be withdrawn or otherwise retrieved from or denied to Xxxx Xxxx
and Xxxx Xxxx, or either of them; provided, however, that the Undersigned may
revoke this proxy if, and only if, Xxxx Xxxx or Xxxx Xxxx shall remain in
material breach of that certain Share Exchange Agreement dated March ___, 2000,
after 5 days' notice of such material breach. For purposes of the preceding
sentence, Xxxx Xxxx or Xxxx Xxxx shall not be considered to be in material
breach of that certain Share Exchange Agreement dated March ___, 2000, if,
despite technically remaining in breach, he has taken all reasonable steps to
effect a cure and thereafter diligently prosecutes such cure to completion.
The Undersigned hereby expressly confirms that it intends that this proxy be
irrevocable.
----------------------------------------
(print name of record stockholder)
---------------------------------------- ------------------------------------
By (Date)
-------------------------------------
Its
---------------------------------
Exhibit B to
Share Exchange Agreement
ORDER TO CANCEL SHARES
----------------------
(Date)
Anyox Resources Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
Attn: President
Sir:
On the books and records of Anyox Resources Inc. (the "Company") I am the
holder of 4,000,000 shares of restricted common stock. Except as provided in the
next sentence, I hereby order you to cancel my 4,000,000 shares of restricted
common stock without further consideration. If not delivered to the Company by
the date 10 days after the Company establishes a Class A Preferred Stock and
offers it to Xxxx Xxxx and Xxxx Xxxx as contemplated by section 7 of that
certain Share Exchange Agreement dated March ___, 2000, this order shall be
null, void ab initio and of no force or effect.
-----------------------------------------
Carsten Mide
Exhibit C to
Share Exchange Agreement
------------------------
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
[NEW CORPORATE NAME]
The undersigned hereby adopts as its chartering document these Amended and
Restated Articles of Incorporation.
ARTICLE I
The name of the corporation is "[New Corporate Name]".
ARTICLE II
2.1. Authorized Capital
The total number of shares that this corporation is authorized to issue is
200,000,000, consisting of 160,000,000 shares of Common Stock having a par value
of $0.001 per share and 40,000,000 shares of Preferred Stock having a par value
of $0.001 per share. The Common Stock is subject to the rights and preferences
of the Preferred Stock as set forth below.
2.2. Issuance of Preferred Stock by Class and in Series
The Preferred Stock may be issued from time to time in one or more classes
and one or more series within such classes in any manner permitted by law and
the provisions of these Articles of Incorporation, as determined from time to
time by the Board of Directors and stated in the resolution or resolutions
providing for its issuance, prior to the issuance of any shares. The Board of
Directors shall have the authority to fix and determine and to amend the voting
powers, designations, preferences, limitations, restrictions and relative rights
of the shares (including, without limitation, such matters as dividends,
redemption, liquidation, conversion and voting) of any class or series that is
wholly unissued or to be established. Unless otherwise specifically provided in
the resolution establishing any class or series, the Board of Directors shall
further have the authority, after the issuance of shares of a class or series
whose number it has designated, to amend the resolution establishing such class
or series to decrease the number of shares of that class or series, but not
below the number of shares of such class or series then outstanding.
ARTICLE III
The purpose of this corporation is to engage in any business, trade or
activity that may lawfully be conducted by a corporation organized under the law
of the state of Nevada (hereinafter, "applicable corporate law") and to engage
in any and all such activities as are incidental or conducive to the attainment
of the foregoing purpose or purposes.
ARTICLE IV
Except as may be authorized pursuant to Section 2.2 of Article II, no
preemptive rights shall exist with respect to shares of stock or securities
convertible into shares of stock of this corporation.
ARTICLE V
The right to cumulate votes in the election of Directors shall not exist
with respect to shares of stock of this corporation.
SHARE EXCHANGE AGREEMENT
EXHIBIT C
Page 2
ARTICLE VI
6.1. Number of Directors
The Board of Directors shall be composed of not less than one nor more than
nine Directors. The specific number of Directors shall be set by resolution of
the Board of Directors or, if the Directors in office constitute fewer than a
quorum of the Board of Directors, by the affirmative vote of a majority of all
the Directors in office. The number of Directors of this corporation may be
increased or decreased from time to time in the manner provided herein, but no
decrease in the number of Directors shall have the effect of shortening the term
of any incumbent Director.
6.2. Classification of Directors
The Directors shall be divided into three classes, with each class to be as
nearly equal in number as possible, as specified by resolution of the Board of
Directors or, if the Directors in office constitute fewer than a quorum of the
Board of Directors, by the affirmative vote of a majority of all the Directors
in office. The term of office of Directors of the first class shall expire at
the first annual meeting of shareholders after their election. The term of
office of Directors of the second class shall expire at the second annual
meeting after their election. The term of office of Directors of the third class
shall expire at the third annual meeting after their election. At each annual
meeting after such classification, a number of Directors equal to the number of
the class whose term expires at the time of such meeting shall be elected to
hold office until the third succeeding annual meeting. Absent his or her death,
resignation or removal, a Director shall continue to
SHARE EXCHANGE AGREEMENT
EXHIBIT C
Page 3
serve despite the expiration of the Director's term until his or her successor
shall have been elected and qualified or until there is a decrease in the number
of Directors.
6.3. Removal of Directors
The shareholders may remove one or more Directors with or without cause,
but only at a special meeting called for the purpose of removing the Director or
Directors, and the meeting notice must state that the purpose, or one of the
purposes, of the meeting is removal of the Director or Directors.
6.4. Vacancies on Board of Directors
If a vacancy occurs on the Board of Directors, including a vacancy
resulting from an increase in the number of Directors, the Board of Directors
may fill the vacancy, or, if the Directors in office constitute fewer than a
quorum of the Board of Directors, they may fill the vacancy by the affirmative
vote of a majority of all the Directors in office. The shareholders may fill a
vacancy only if there are no Directors in office.
ARTICLE VII
This corporation reserves the right to amend or repeal any of the
provisions contained in these Articles of Incorporation in any manner now or
hereafter permitted by the applicable corporate law, and the rights of the
shareholders of this corporation are granted subject to this reservation.
SHARE EXCHANGE AGREEMENT
EXHIBIT C
Page 4
ARTICLE VIII
The Board of Directors shall have the power to adopt, amend or repeal the
Bylaws of this corporation, subject to the power of the shareholders to amend or
repeal such Bylaws. The shareholders shall also have the power to amend or
repeal the Bylaws of this corporation and to adopt new Bylaws.
ARTICLE IX
9.1. Shareholder Actions
Subject to any limitations imposed by applicable securities laws, any
action required or permitted to be taken at a shareholders meeting may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted.
9.2. Number of Votes Necessary to Approve Actions
Whenever applicable corporate law permits a corporation's articles of
incorporation to specify that a lesser number of shares than would otherwise be
required shall suffice to approve an action by shareholders, these Articles of
Incorporation hereby specify that the number of shares required to approve such
an action shall be such lesser number.
SHARE EXCHANGE AGREEMENT
EXHIBIT C
Page 5
9.3. Special Meetings of Shareholders
So long as this corporation is a public company, except as may be
authorized pursuant to Section 2.2 of Article II, special meetings of the
shareholders of the corporation for any purpose may be called at any time by the
Board of Directors or, if the Directors in office constitute fewer than a quorum
of the Board of Directors, by the affirmative vote of a majority of all the
Directors in office, but such special meetings may not be called by any other
person or persons.
9.4. Quorum for Meetings of Shareholders.
Except with respect to any greater requirement contained in these Articles
of Incorporation or the applicable corporate law, one-third of the votes
entitled to be cast on a matter by the holders of shares that, pursuant to the
Articles of Incorporation or the applicable corporate law, are entitled to vote
and be counted collectively upon such matter, represented in person or by proxy,
shall constitute a quorum of such shares at a meeting of shareholders.
ARTICLE X
To the full extent that applicable corporate law, as it exists on the date
hereof or may hereafter be amended, permits the limitation or elimination of the
personal liability of Directors, a Director of this corporation shall not be
liable to this corporation or its shareholders for monetary damages for conduct
as a Director. Any amendments to or repeal of this Article X shall not adversely
affect any right or protection of a Director of this corporation for or with
respect to any acts or omissions of such Director occurring prior to such
amendment or repeal.
SHARE EXCHANGE AGREEMENT
EXHIBIT C
Page 6
ARTICLE XI
11.1. Indemnification.
The corporation shall indemnify its directors to the full extent permitted
by applicable corporate law now or hereafter in force. However, such indemnity
shall not apply if the director did not (a) act in good faith and in a manner
the director reasonably believed to be in or not opposed to the best interests
of the corporation, and (b) with respect to any criminal action or proceeding,
have reasonable cause to believe the director's conduct was unlawful. The
corporation shall advance expenses for such persons pursuant to the terms set
forth in the Bylaws, or in a separate Board resolution or contract.
11.2. Authorization.
The Board of Directors may take such action as is necessary to carry out
these indemnification and expense advancement provisions. It is expressly
empowered to adopt, approve, and amend from time to time such Bylaws,
resolutions, contracts, or further indemnification and expense advancement
arrangements as may be permitted by law, implementing these provisions. Such
Bylaws, resolutions, contracts or further arrangements shall include but not be
limited to implementing the manner in which determinations as to any indemnity
or advancement of expenses shall be made. The Board of Directors shall have
further power to authorize the corporation to indemnify its officers, employees
or agents (whether
SHARE EXCHANGE AGREEMENT
EXHIBIT C
Page 7
serving the corporation directly or serving at its request) to the full extent
permitted by applicable corporate law now or hereafter in force.
11.3. Insurance.
The corporation shall have the power, exercised by authority of the Board
of Directors, to purchase and maintain insurance on behalf of any person to whom
indemnity is provided under or through this Article XI to the full extent
permitted by applicable corporate law now or hereafter in force.
11.4. Effect of Amendment.
No amendment or repeal of this Article shall apply to or have any effect on
any right to indemnification provided hereunder with respect to acts or
omissions occurring prior to such amendment or repeal.
SHARE EXCHANGE AGREEMENT
EXHIBIT C
Page 8
Exhibit D to
Share Exchange Agreement
BYLAWS
of
__________________________
SECTION 1. OFFICES
The principal office of the corporation shall be located at the principal
place of business or such other place as the Board of Directors ("Board") may
designate. The corporation may have such other offices as the Board may
designate or as the business of the corporation may require.
SECTION 2. SHAREHOLDERS
2.1 Annual Meeting
The annual meeting of the shareholders to elect Directors and transact such
other business as may properly come before the meeting shall be held on a date
not more than 180 days after the end of the corporation's fiscal year, such date
and time to be determined by the Board.
2.2 Special Meetings
(a) Subject to paragraph 2.2(b), the Chairman of the Board, the President
or the Board may call special meetings of the shareholders for any
purpose. Further, a special meeting of the shareholders shall be held
if the holders of not less than 25% of all the votes entitled to be
cast on any issue proposed to be considered at such special meeting
have dated, signed and delivered to the Secretary one or more written
demands for such meeting, describing the purpose or purposes for which
it is to be held.
(b) So long as the Company is a public company, special meetings of the
shareholders of the Company for any purpose may be called at any time
by the Board or, if the Directors in office constitute fewer than a
quorum of the Board, by the affirmative vote of a majority of all the
Directors in office, but such special meetings may not be called by
any other person or persons.
2.3 Meetings by Communications Equipment
Shareholders may participate in any meeting of the shareholders by any
means of communication by which all persons participating in the meeting can
hear each other during the meeting. Participation by such means shall
constitute presence in person at a meeting.
2.4 Date, Time and Place of Meeting
Except as otherwise provide in these Bylaws, all meetings of shareholders,
including those held pursuant to demand by shareholders, shall be held on such
date and at such time and place designated by or at the direction of the Board.
2.5 Notice of Meeting
Written notice stating the place, day and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called shall be given by or at the direction of the Board, the Chairman of the
Board, the President or the Secretary to each shareholder entitled to notice of
or to vote at the meeting not less than 10 nor more than 60 days before the
meeting, except that notice of a meeting to act on an amendment to the Articles
of Incorporation, a plan of merger or share exchange, the sale, lease, exchange
or other disposition of all or substantially all of the corporation's assets
other than in the regular course of business or the dissolution of the
corporation shall be given not less than 20 or more than 60 days before such
meeting. If an annual or special shareholders' meeting is adjourned to a
different date, time or place, no notice of the new date, time or place is
required if they are announced at the meeting before adjournment. If a new
record date for the adjourned meeting is or must be fixed, notice of the
adjourned meeting must be given to shareholders entitled to notice of or to vote
as of the new record date.
Such notice may be transmitted by mail, private carrier, personal delivery,
telegraph, teletype or communications equipment that transmits a facsimile of
the notice. If those forms of written notice are impractical in the view of the
Board, the Chairman of the Board, the President or the Secretary, written notice
may be transmitted by an advertisement in a newspaper of general circulation in
the area of the corporation's principal office. If such notice is mailed, it
shall be deemed effective when deposited in the official government mail, first-
class postage prepaid, properly addressed to the shareholder at such
shareholder's address as it appears in the corporation's current record of
shareholders. Notice given in any other manner shall be deemed effective when
dispatched to the shareholder's address, telephone number or other number
appearing on the records of the corporation. Any notice given by publication as
herein provided shall be deemed effective five days after first publication.
2.6 Waiver of Notice
Whenever any notice is required to be given by an shareholder under the
provisions of these Bylaws, the Articles of Incorporation or the Washington
Business Corporation Act, a waiver of notice in writing, signed by the person or
persons entitled to such notice and delivered
SHARE EXCHANGE AGREEMENT
EXHIBIT D
Page 2
to the corporation, whether before or after the date and time of the meeting or
before or after the action to be taken by consent is effective, shall be deemed
equivalent to the giving of such notice. Further, notice of the time, place and
purpose of any meeting will be deemed to be waived by any shareholder by
attendance in person or by proxy, unless such shareholder at the beginning of
the meeting objects to holding the meeting or transacting business at the
meeting.
2.7 Fixing of Record Date for Determining Shareholders
For the purpose of determining shareholders entitled (a) to notice of or to
vote at any meeting of shareholders or any adjournment thereof, (b) to demand a
special meeting, or (c) to receive payment of any dividend, or in order to make
a determination of shareholders for any other purpose, the Board may fix a
future date as the record date for any such determination. Such record date
shall be not more than 70 days, and, in case of a meeting of shareholders, not
less than 10 days, prior to the date on which the particular action requiring
such determination is to be taken. If no record date is fixed for the
determination of shareholders entitled to notice of or to vote a meeting, the
record date shall be the day immediately preceding the date on which notice of
the meeting is first given to shareholders. Such a determination shall apply to
any adjournment of the meeting unless the Board fixes a new record date, which
it shall do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting. If no record date is set for the
determination of shareholders entitled to receive payment of any stock, dividend
or distribution (other than one involving a purchase, redemption or other
acquisition of the corporation's shares), the record date shall be the date the
Board authorizes the stock dividend or distribution.
2.8 Voting Record
At least 10 days before each meeting of shareholders, an alphabetical list
of the shareholders entitled to notice of such meeting shall be made, arranged
by voting group and by each class or series of shares, with the address of and
number of shares held by each shareholder. This record shall be kept at the
principal office of the corporation for 10 days prior to such meeting, and shall
be kept open at such meeting, for the inspection of any shareholder or any
shareholder's agent or attorney.
2.9 Quorum
Except with respect to any greater requirement contained in the Articles of
Incorporation or the Washington Business Corporation Act, one-third of the votes
entitled to be cast on a matter by the holders of shares that, pursuant to the
Articles of Incorporation or the Washington Business Corporation Act, are
entitled to vote and be counted collectively upon such matter, represented in
person or by proxy, shall constitute a quorum of such shares at a meeting of
SHARE EXCHANGE AGREEMENT
EXHIBIT D
Page 3
shareholders. If less than the required number of such votes are represented at
a meeting, a majority of the votes so represented may adjourn the meeting from
time to time. Any business may be transacted at a reconvened meeting that might
have been transacted at the meeting as originally called, provided a quorum is
present or represented at such meeting. Once a share is represented for any
purpose at a meeting other than solely to object to holding the meeting or
transacting business, it is deemed present for quorum purposes for the remainder
of the meeting and any adjournment (unless a new record date is or must be set
for the adjourned meeting), notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
2.10 Manner of Acting
If a quorum is present, action on a matter other than the election of
Directors shall be approved if the votes cast in favor of the action by the
shares entitled to vote and be counted collectively upon such matter exceed the
votes cast against such action by the shares entitled to vote and be counted
collectively thereon, unless the Articles of Incorporation or the Washington
Business Corporation Act requires a greater number of affirmative votes.
Whenever the Washington Business Corporation Act permits a corporation's bylaws
to specify that a lesser number of shares than would otherwise be required shall
suffice to approve an action by shareholders, these Bylaws hereby specify that
the number of shares required to approve such an action shall be such lesser
number.
2.11 Proxies
As shareholder may vote by proxy executed in writing by the shareholder or
by his or her attorney-in-fact or agent. Such proxy shall be effective when
received by the Secretary or other officer or agent authorized to tabulate
votes. A proxy shall become invalid 11 months after the date of its execution,
unless otherwise provided in the proxy. A proxy with respect to a specified
meeting shall entitle its holder to vote at any reconvened meeting following
adjournment of such meeting but shall not be valid after the final adjournment.
2.12 Voting Shares
Except as provided in the Articles of Incorporation, each outstanding share
entitled to vote with respect to a matter submitted to a meeting of shareholders
shall be entitled to one vote upon such matter.
2.13 Voting for Directors
Each shareholder entitled to vote to an election of Directors may vote, in
person or by proxy, the number of shares owned by such shareholder for as many
persons as there are
SHARE EXCHANGE AGREEMENT
EXHIBIT D
Page 4
Directors to be elected and for whose election such shareholder has a right to
vote. Shareholders shall not have the right to cumulate their votes. Unless
otherwise provided in the Articles of Incorporation, the candidates elected
shall be those receiving the largest number of votes cast, up to the number of
Directors to be elected.
2.14 Action by Shareholders Without a Meeting
Any action that may be or is required to be taken at a meeting of the
shareholders may be taken without a meeting by unanimous consent if one or more
written consents setting forth the action so taken shall be signed by all the
shareholders entitled to vote with respect to the matter. Action may also be
taken by less than unanimous consent. Action by less than unanimous consent may
be taken if one or more written consents describing the action taken shall be
signed by shareholders holding the record or otherwise entitled to vote in the
aggregate not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
on the action were present and voted. If not otherwise fixed by the Board, the
record date for determining shareholders entitled to take action without a
meeting is the date the first shareholder consent is signed. A shareholder may
withdraw a consent only by delivering a written notice of withdrawal to the
corporation prior to the time that consents sufficient to authorize taking the
action have been delivered to the corporation. Every written consent shall bear
the date of signature of each shareholder who signs the consent. A written
consent is not effective to take the action referred to in the consent unless,
within 60 days of the earliest dated consent delivered to the corporation,
written consents signed by a sufficient number of shareholders to take action
are delivered to the corporation. Unless the consent specifies a later effective
date, actions taken by written consent of the shareholders are effective when
(a) consents sufficient to authorize taking the action are in possession of the
corporation and (b) the period of advance notice required by the Articles of
Incorporation to be given to any nonconsenting or nonvoting shareholders has
been satisfied. Any such consent shall be inserted in the minute book as if it
were the minutes of a meeting of the shareholders.
SECTION 3. BOARD OF DIRECTORS
3.1 General Powers
All corporate powers shall be exercised by or under the authority of, and
the business and affairs of the corporation shall be managed under the direction
of, the Board, except as may be otherwise provided in these Bylaws, the Articles
of Incorporation or the Washington Business Corporation Act.
3.2 Number, Classification and Tenure
SHARE EXCHANGE AGREEMENT
EXHIBIT D
Page 5
The Board shall be composed of not less than one nor more than six
Directors, the specific number to be set by resolution of the Board or, if the
Directors in office constitute fewer than a quorum of the Board, by the
affirmative vote of a majority of all the Directors in office. The number of
Directors may be changed from time to time as provided by the Articles of
Incorporation, but no decrease in the number of Directors shall have the effect
of shortening the term of any incumbent Director. The Directors shall be divided
into three classes, with each class to be as nearly equal in number as possible,
as specified by resolution of the Board or, if the Directors in office
constitute fewer than a quorum of the Board, by the affirmative vote of a
majority of all the Directors in office. The term of office of Directors of the
first class shall expire at the first annual meeting of shareholders after their
election. The term of office of Directors of the second class shall expire at
the second annual meeting after their election. The term of office of Directors
of the third class shall expire at the third annual meeting after their
election. At each annual meeting after such classification, a number of
Directors equal to the number of the class whose term expires at the time of
such meeting shall be elected to hold office until the third succeeding annual
meeting. Absent his or her death, resignation or removal, a Director shall
continue to serve despite the expiration of the Director's term until his or her
successor shall have been elected and qualified or until there is a decrease in
the number of Directors. Directors need not be shareholders of the corporation
or residents of the state of Washington, and need not meet any other
qualifications.
3.3 Annual and Regular Meetings
An annual Board meeting shall be held without notice immediately after and
at the same place as the annual meeting of shareholders. By resolution the
Board, or any committee designated by the Board, may specify the time and place
for holding regular meetings without notice other than such resolution.
3.4 Special Meetings
Special meetings of the Board or any committee designated by the Board may
be called by or at the request of the Chairman of the Board, the President, the
Secretary or, in the case of special Board meetings, any one-third or more of
the Directors in office and, in the case of any special meeting of any committee
designated by the Board, by its Chairman. The person or persons authorized to
call special meetings may fix any place for holding any special Board or
committee meeting called by them.
3.5 Meetings by Communications Equipment
Members of the Board or any committee designated by the Board may
participate in a meeting of such Board or committee by, or conduct the meeting
through the use of, any means of
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communication by which all Directors participating in the meeting can hear each
other during the meeting. Participation by such means shall constitute presence
in person at a meeting.
3.6 Notice of Special Meetings
Notice of a special Board or committee meeting stating the place, day and
hour of the meeting shall be given to a Director in writing or orally. Neither
the business to be transacted at nor the purpose of any special meeting need be
specified in the notice of such meeting.
3.6.1 Personal Delivery
If notice is given by personal delivery, the notice shall be delivered to a
Director at least two days before the meeting.
3.6.2 Delivery by Mail
If notice is delivered by mail, the notice shall be deposited in the
official government mail at least five days before the meeting, properly
addressed to a Director at his or her address shown on the records of the
corporation, with postage thereon prepaid.
3.6.3 Delivery by Private Carrier
If notice is given by private carrier, the notice shall be dispatched to a
Director at his or her address shown on the records of the corporation at least
three days before the meeting.
3.6.4 Facsimile Notice
If a notice is delivered by wire or wireless equipment that transmits a
facsimile of the notice, the notice shall be dispatched at least two days before
the meeting to a Director at his or her telephone number or other number
appearing on the records of the corporation.
3.6.5 Delivery by Telegraph
If notice is delivered by telegraph, the notice shall be delivered to the
telegraph company for delivery to a Director at his or her address shown on the
records of the corporation at least three days before the meeting.
3.6.6 Oral Notice
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If notice is delivered by orally, by telephone or in person, the notice
shall be personally given to the Director at least two days before the meeting.
3.7 Waiver of Notice
3.7.1 In Writing
Whenever any notice is required to be given to any Director under the
provisions of these Bylaws, the Articles of Incorporation or the Washington
Business Corporation Act, a waiver thereof in writing, signed by the person or
persons entitled to such notice and delivered to the corporation, whether before
or after the date and time of the meeting, shall be deemed equivalent to the
giving of such notice. Neither the business to be transacted at nor the purpose
of any regular or special meeting of the Board or any committee designated by
the Board need be specified in the waiver of notice of such meeting.
3.7.2 By Attendance
A Director's attendance at or participation in a Board or committee meeting
shall constitute a waiver of notice of such meeting, unless the Director at the
beginning of the meeting, or promptly upon his or her arrival, objects to
holding the meeting or transacting business at such meeting and does not
thereafter vote for or assent to action taken at the meeting.
3.8 Quorum
A majority of the number of Directors fixed by or in the manner provided in
these Bylaws shall constitute a quorum for the transaction of business at any
Board meeting but, if less than a majority are present at a meeting, a majority
of the Directors present may adjourn the meeting from time to time without
further notice. A majority of the number of Directors composing any committee of
the Board, as established and fixed by resolution of the Board, shall constitute
a quorum for the transaction of business at any meeting of such committee but,
if less than a majority are present at a meeting, a majority of such Directors
present may adjourn the committee meeting from time to time without further
notice.
3.9 Manner of Acting
If a quorum is present when the vote is taken, the act of the majority of
the Directors present at a Board or committee meeting shall be the act of the
Board or such committee, unless the vote of a greater number is required by
these Bylaws, the Articles of Incorporation or the Washington Business
Corporation Act.
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3.10 Presumption of Assent
A Director of the corporation who is present at a Board or committee
meeting at which any action is taken shall be deemed to have assented to the
action taken unless (a) the Director objects at the beginning of the meeting, or
promptly upon the Director's arrival, to holding the meeting or transacting any
business at such meeting, (b) the Director's dissent or abstention from the
action taken is entered in the minutes of the meeting, or (c) the Director
delivers written notice of the Director's dissent or abstention to the presiding
officer of the meeting before its adjournment or to the corporation within a
reasonable time after adjournment of the meeting. The right of dissent or
abstention is not available to a Director who votes in favor of the action
taken.
3.11 Action by Board or Committees Without a Meeting
Any action that could be taken at a meeting of the Board or of any
committee created by the Board may be taken without a meeting if one or more
written consents setting forth the action so taken are signed by each of the
Directors or by each committee member either before or after the action is taken
and delivered to the corporation. Action taken by written consent of Directors
without a meeting is effective when the last Director signs the consent, unless
the consent specifies a later effective date. Any such written consent shall be
inserted in the minute book as if it were the minutes of a Board or a committee
meeting.
3.12 Resignation
Any Director may resign from the Board or any committee of the Board at any
time by delivering either oral tender of resignation at any meeting of the Board
or any committee, or written notice to the Chairman of the Board, the President,
the Secretary or the Board. Any such resignation is effective upon delivery
thereof unless the notice of resignation specifies a later effective date and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
3.13 Removal
At a meeting of shareholders called expressly for that purpose, one or more
members of the Board, including the entire Board, may be removed with or without
cause (unless the Articles of Incorporation permit removal for cause only) by
the holders of the shares entitled to elect the Director or Directors whose
removal is sought if the number of votes cast to remove the Director exceeds the
number of votes cast not to remove the Director.
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3.14 Vacancies
If a vacancy occurs on the Board, including a vacancy resulting from an
increase in the number of Directors, the Board may fill the vacancy, or, if the
Directors in office constitute fewer than a quorum of the Board, they may fill
the vacancy by the affirmative vote of a majority of all the Directors in
office. The shareholders may fill a vacancy only if there are no Directors in
office. A Director elected to fill a vacancy shall serve only until the next
election of Directors by the shareholders.
3.15 Executive and Other Committees
3.15.1 Creation of Committees
The Board, by resolution adopted by the greater of a majority of the
Directors then in office and the number of Directors required to take action in
accordance with these Bylaws, may create standing or temporary committees,
including an Executive Committee, and appoint members from its own number and
invest such committees with such powers as it may see fit, subject to such
conditions as may be prescribed by the Board, the Articles of Incorporation,
these Bylaws and applicable law. Each committee must have two or more members,
who shall serve at the pleasure of the Board.
3.15.2 Authority of Committees
Each Committee shall have and may exercise all the authority of the Board
to the extent provided in the resolution of the Board creating the committee and
any subsequent resolutions adopted in like manner, except that no such committee
shall have the authority to: (1) authorize or approve a distribution except
according to a general formula or method prescribed by the Board, (2) approve or
propose to shareholders actions or proposals required by the Washington Business
Corporation Act to be approved by shareholders, (3) fill vacancies on the Board
or any committee thereof, (4) amend the Articles of Incorporation pursuant to
RCW 23B.10.020, (5) adopt, amend or repeal Bylaws, (6) approve a plan of merger
not requiring shareholder approval, or (7) authorize or approve the issuance or
sale of contract for sale of shares, or determine the designation and relative
rights, preferences and limitations of a class or series of shares except that
the Board may authorize a committee or a senior executive officer of the
corporation to do so within limits specifically prescribed by the Board.
3.15.3 Minutes of Meetings
All committees shall keep regular minutes of their meetings and shall cause
them to be recorded in books kept for that purpose.
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3.15.4 Removal
The Board may remove any member of any committee elected or appointed by it
but only by the affirmative vote of the greater of a majority of Directors then
in office and the number of Directors required to take action in accordance with
these Bylaws.
3.16 Compensation
By Board resolution, Directors and committee members may be paid either
expenses, if any, of attendance at each Board or committee meeting, or a fixed
sum for attendance at each Board or committee meeting, or a stated salary as
Director or a committee member, or a combination of the foregoing. No such
payment shall preclude any Director or committee member from serving the
corporation in any other capacity and receiving compensation therefore.
SECTION 4. OFFICERS
4.1 Appointment and Term
The officers of the corporation shall be those officers appointed from time
to time by the Board or by any other officer empowered to do so. The Board shall
have sole power and authority to appoint executive officers. As used herein, the
term "executive officer" shall mean the President, the chief financial officer
and any other officer designated by the Board as an executive officer. The Board
or the President may appoint such other officers to hold office for such period,
have such authority and perform such duties as may be prescribed. The Board may
delegate to any other officer the power to appoint any subordinate officers and
to prescribe their respective terms of office, authority and duties. Any two or
more offices may be held by the same person. Unless an officer dies, resigns or
is removed from office, he or she shall hold office until his or her successor
is appointed.
4.2 Resignation
Any officer may resign at any time by delivering written notice to the
corporation. Any such resignation is effective upon delivery, unless the notice
of resignation specifies a later effective date, and, unless otherwise
specified, the acceptance of such resignation shall not be necessary to make it
effective.
4.3 Removal
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Any officer may be removed by the Board at any time, with or without cause.
An officer or assistant officer, if appointed by another officer, may be removed
at any time, with or without cause, by any officer authorized to appoint such
officer or assistant officer.
4.4 Contract Rights of Officers
The appointment of an officer does not itself create contract rights.
4.5 Chairman of the Board
If appointed, the Chairman of the Board shall perform such duties as shall
be assigned to him or her by the Board from time to time, and shall preside over
meetings of the Board and shareholders unless another officer is appointed or
designated by the Board of Chairman of such meetings.
4.6 President
If appointed, the President shall be the chief executive officer of the
corporation unless some other offices is to designated by the Board, shall
preside over meetings of the Board and shareholders in the absence of a Chairman
of the Board, and, subject to the Board's control, shall supervise and control
all the assets, business and affairs of the corporation. In general, the
President shall perform all duties incident to the office of President and such
other duties as are prescribed by the Board from time to time. If no Secretary
has been appointed, the President shall have responsibility for the preparation
of minutes of meetings of the Board and shareholders and for authentication of
the records of the corporation.
4.7 Vice President
In the event of the death of the President or his or her inability to act,
the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board as the successor to the President, or
if no Vice President is so designated, the Vice President first elected to such
office) shall perform the duties of the President, except as may be limited by
resolution of the Board, with all the powers of and subject to all the
restrictions upon the President. Vice Presidents shall perform such other duties
as from time to time may be assigned to them by the President or by or at the
direction of the Board.
4.8 Secretary
If appointed, the Secretary shall be responsible for preparation of minutes
of the meetings of the Board and shareholders, maintenance of the corporation
records and stock registers, and
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authentication of the corporation's records, and shall in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him or her by the President or by or at the direction of
the Board. In the absence of the Secretary, an Assistant Secretary may perform
the duties of the Secretary.
4.9 Treasurer
If appointed, the Treasurer shall have charge and custody of and be
responsible for all funds and securities of the corporation, receive and give
receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in banks,
trust companies or other depositories selected in accordance with the provisions
of these Bylaws, and in general perform all the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him or
her by the President or by or at the direction of the Board. In the absence of
the Treasurer, an Assistant Treasurer may perform the duties of the Treasurer.
4.10 Salaries
The salaries of the officers shall be fixed from time to time by the Board
or by any person or persons to whom the Board has delegated such authority. No
officer shall be prevented from receiving such salary by reason of the fact that
he or she is also a Director of the corporation.
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 Contracts
The Board may authorize any officer or officers, or agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the corporation. Such authority may be general or confined to
specific instances.
5.2 Loans to the Corporation
No loans shall be contracted on behalf of the corporation and no evidences
of indebtedness shall be issued in its name unless authorized by a resolution of
the Board. Such authority may be general or confined to specific instances.
5.3 Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the corporation shall be signed
by such officer or officers, or
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agent or agents, of the corporation and in such manner as is from time to time
determined by resolution of the Board.
5.4 Deposits
All funds of the corporation not otherwise employed shall be deposited from
time to time to the credit of the corporation in such banks, trust companies or
other depositories as the Board may authorize.
SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 Issuance of Shares
No shares of the corporation shall be issued unless authorized by the
Board, or by a committee designated by the Board to the extent such committee is
empowered to do so.
6.2 Certificates for Shares
Certificates representing shares of the corporation shall be signed, either
manually or in facsimile, by the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant Secretary
and shall include on their face written notice of any restrictions that may be
imposed on the transferability of such shares. All certificates shall be
consecutively numbered or otherwise identified.
6.3 Stock Records
The stock transfer books shall be kept at the principal office at the
corporation or at the office of the corporation's transfer agent or registrar.
The name and address of each person to whom certificates for shares are issued,
together with the class and number of shares represented by each such
certificate and the date of issue thereof, shall be entered on the stock
transfer books of the corporation. The person in whose name shares stand on the
books of the corporation shall be deemed by the corporation to be the owner
thereof for all purposes.
6.4 Restriction on Transfer
Except to the extent that the corporation has obtained an opinion of
counsel acceptable to the corporation that transfer restrictions are not
required under applicable securities laws, or has otherwise satisfied itself
that such transfer restrictions are not required, all certificates representing
shares of the corporation shall bear a legend on the face of the certificate, or
on the
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reverse of the certificate if a reference to the legend is contained on the
face, which reads substantially as follows:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE SECURITIES LAWS, AND NO INTEREST MAY BE SOLD, DISTRIBUTED, ASSIGNED,
OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (A) THERE IS AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, (B) THIS
CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE
SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH TRANSACTION
IS EXEMPT FROM REGISTRATION, OR (C) THIS CORPORATION OTHERWISE SATISFIES
ITSELF THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION.
6.5 Transfer of Shares
The transfer of shares of the corporation shall be made only on the stock
transfer books of the corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer, or
by his or her attorney-in-fact authorized by power of attorney duly executed and
filed with the Secretary of the corporation. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificates for a like number of shares shall have been
surrendered and canceled.
6.6 Lost or Destroyed Certificates
In the case of a lost, destroyed or damaged certificate, a new certificate
may be issued in its place upon such terms and indemnity to the corporation as
the Board may prescribe.
SECTION 7. BOOKS AND RECORDS
The corporation shall:
(a) Keep as permanent records minutes of all meetings of its shareholders
and the Board, a record of all actions taken by the shareholders or the Board
without a meeting, and a record of all
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actions taken by a committee of the Board exercising the authority of the Board
on behalf of the corporation.
(b) Maintain appropriate accounting records.
(c) Maintain a record of its shareholders, in a form that permits
preparation of a list of the names and addresses of all shareholders, in
alphabetical order by class of shares showing the number and class of
shares held by each; provided, however, such record may be maintained by an
agent of the corporation.
(d) Maintain its records in written form or in another form capable of
conversion into written form within a reasonable time.
(e) Keep a copy of the following records at its principal office:
1. the Articles of Incorporation and all amendments thereto as
currently in effect;
2. these Bylaws and all amendments thereto as currently in effect;
3. the minutes of all meetings of shareholders and records of all
action taken by shareholders without a meeting, for the past three
years;
4. the financial statements described in Section 23B.16.200(1) of
the Washington Business Corporation Act, for the past three years;
5. all written communications to shareholders generally within the
past three years;
6. a list of the names and business addresses of the current
Directors and officers; and
7. the most recent annual report delivered to the Washington
Secretary of State.
SECTION 8. ACCOUNTING YEAR
The accounting year of the corporation shall be the calendar year, provided
that if a different accounting year is at any time selected by the Board for
purposes of federal income taxes, or any other purpose, the accounting year
shall be the year so selected.
SECTION 9. SEAL
The Board may provide for a corporate seal that shall consist of the name
of the corporation, the state of its incorporation, and the year of its
incorporation.
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SECTION 10. INDEMNIFICATION
10.1 Right to Indemnification
Each person who was, is or is threatened to be made a party to or is
otherwise involved (including, without limitation, as a witness) in any
threatened, pending or completed action, suit, claim or proceeding, whether
civil, criminal, administrative or investigative and whether formal or informal
(hereinafter a "proceedings"), by reason of the fact that he or she is or was a
Director or officer of the corporation or, that being or having been such a
Director or officer of the corporation, he or she is or was serving at the
request of the corporation as a Director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise (hereafter an "indemnitee"), whether the basis
of a proceeding is alleged action in an official capacity or in any other
capacity while serving as such a Director, officer, partner, trustee, employee
or agent, shall be indemnified and held harmless by the corporation against all
losses, claims, damages (compensatory, exemplary, punitive or otherwise),
liabilities and expenses (including attorneys' fees, costs, judgments, fines,
ERISA excise taxes or penalties, amounts to be paid in settlement and any other
expenses) actually and reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a Director or officer of the Company or a Director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and
shall insure to the benefit of the indemnitee's heirs, executors and
administrators. Except as provided in subsection 10.4 of this Section with
respect to proceedings seeking to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if a proceeding (or part
thereof) was authorized or ratified by the Board. The right to indemnification
conferred in this Section shall be a contract right.
10.2 Restrictions on Indemnification
No indemnification shall be provided to any such indemnitee for acts or
omissions of the indemnitee finally adjudged to be intentional misconduct or a
knowing violation of law, for conduct of the indemnitee finally adjudged to be
in violation of Section 23B.08.310 of the Washington Business Corporation Act,
for any transaction with respect to which it was finally adjudged that such
indemnitee personally received a benefit in money, property or services to which
the indemnitee was not legally entitled or if the corporation is otherwise
prohibited by applicable law from paying such indemnification. Notwithstanding
the foregoing, if Section 23B.08.560 or any successor provision of the
Washington Business Corporation Act is hereafter amended, the restrictions on
indemnification set forth in this subsection 10.2 shall be as set forth in such
amended statutory provision.
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10.3 Advancement of Expenses
The right to indemnification conferred in this Section shall include the
right to be paid by the corporation the expenses reasonably incurred in
defending any proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"). As advancement of expenses shall be made upon
delivery to the corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such indemnitee is not entitled to be indemnified.
10.4 Right of Indemnitee to Bring Suit
If a claim under subsection 10.1 or 10.3 of this Section is not paid in
full by the corporation within 60 days after a written claim has been received
by the corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim. If successful in whole or in part, in any such suit
or in a suit brought by the corporation to recover an advancement of expenses
pursuant to the terms of the undertaking, the indemnitee shall be entitled to be
paid also the expense of litigating such suit. The indemnitee shall be presumed
to be entitled to indemnification under this Section upon submission of a
written claim (and, in an action brought to enforce a claim for an advancement
of expenses, when the required undertaking has been tendered to the corporation)
and thereafter the corporation shall have the burden of proof to overcome the
presumption that the indemnitee is so entitled.
10.5 Procedures Exclusive
Pursuant to Section 23B.08.560(2) or any successor provision of the
Washington Business Corporation Act, the procedures for indemnification and the
advancement of expenses set forth in this Section are in lieu of the procedures
required by Section 23B.08.550 or any successor provision of the Washington
Business Corporation Act.
10.6 Nonexclusivity of Rights
Except as set forth in subsection 10.5, the right to indemnification and
the advancement of expenses conferred in this Section shall not be exclusive of
any other right that any person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation or Bylaws of the corporation, general
or specific action of the Board or shareholders, contract or otherwise.
10.7 Insurance, Contracts and Funding
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The corporation may maintain insurance, at its expense, to protect itself
and any Director, officer, partner, trustee, employee or agent of the
corporation or another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any expense, liability or loss, whether
or not the corporation would have the authority or right to indemnify such
person against such expense, liability or loss under the Washington Business
Corporation Act or other law. The corporation may enter into contracts with any
Director, officer, partner, trustee, employee or agent of the corporation in
furtherance of the provisions of this section and may create a trust fund, grant
a security interest, or use other means (including, without limitation, a letter
of credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Section.
10.8 Identification of Employees and Agents of the Corporation
In addition to the rights of indemnification set forth in subsection 10.1,
the corporation may, by action of the Board, grant rights to indemnification and
advancement of expenses to employees and agents or any class or group of
employees and agents of the corporation (a) with the same scope and effect as
the provisions of this Section with respect to indemnification and the
advancement of expenses of Directors and officers of the corporation; (b)
pursuant to rights granted or provided by the Washington Business Corporation
Act; or (c) as are otherwise consistent with law.
10.9 Persons Serving Other Entities
Any person who, while a Director or officer of the corporation, is or was
serving (a) as a Director, officer, employee or agent of another corporation of
which a majority of the shares entitled to vote in the election of its directors
is held by the corporation or (b) as a partner, trustee or otherwise in an
executive or management capacity in a partnership, joint venture, trust,
employee benefit plan or other enterprise of which the corporation or a majority
owned subsidiary of the corporation is a general partner or has a majority
ownership shall conclusively be deemed to be so serving at the request of the
corporation and entitled to indemnification and the advancement of expenses
under subsections 10.1 and 10.3 of this Section.
SECTION 11. LIMITATION OF LIABILITY
To the full extent that the Washington Business Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of any person who would be considered an indemnitee
under subsection 10.1 of Section 10, an indemnitee of the Company shall not be
liable to the Company or its shareholders for monetary damages for conduct in
the capacity based upon which such person is considered an indemnitee.
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Any amendments to or repeal of this Section 11 shall not adversely affect any
right or protection of any indemnitee of the Company for or with respect to any
acts or omissions of such indemnitee occurring prior to such amendment or
repeal.
SECTION 12. AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board, except that the Board may not repeal or amend any Bylaw
that the shareholders have expressly provided, in amending or repealing such
Bylaw, may not be amended or repealed by the Board. The shareholders may also
alter, amend and repeal these Bylaws or adopt new Bylaws. All Bylaws made by the
Board may be amended, repealed, altered or modified by the shareholders.
The foregoing Bylaws were adopted by the Board on
-----------------------.
____________________________________
Secretary
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EXHIBIT E TO
SHARE EXCHANGE AGREEMENT
MULTIPLE ADVANCE NOTE
TO BE USED FOR BUSINESS TRANSACTIONS ONLY
FIXED INTEREST
Sarasota, Florida
March __, 2000 $___________
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
Anyox Resources Inc., on [date], the sum of the aggregate principal balance of
all advances made by Anyox Resources Inc. to the undersigned hereunder, in legal
tender of the United States with interest thereon at the rate specified below,
from the date of the respective advances hereunder until fully paid.
1. Interest Rate. The rate of interest shall be ________ percent (___%)
per annum.
2. Authorization of Advances. Advances under this Note may be made at the
oral or written request of the President or Chief Operating Officer of Web
Partners, Inc. Any such advance shall be made to or for the benefit of the
undersigned when made in accordance with requests for directions from authorized
personnel.
3. Effect of Principal Payments. This is a revolving line of credit.
Except as provided below, until maturity, the undersigned may request further
advances at any time the principal balance outstanding is less than the maximum
principal amount stated herein, up to such maximum amount.
4. Cessation of Advances. The holder will have no obligation to make
advances under this note, regardless of the principal balance outstanding, if
(a) there occurs a material adverse change in the undersigned's financial
condition, or in the value of any collateral securing this note; (b) the
undersigned is in default in any payments on this note or under the terms of any
other agreement between the undersigned and holder; or (c) holder reasonably
deems itself to be insecure, even if there has been no default.
5. Application of Payments. All payments made shall be applied first to
late payment charges outstanding (if any), then to accrued interest, and then to
principal.
6. Prepayment of Principal. So long as there is no default under the
terms of this note, the undersigned shall have the right to make a prepayment of
the principal balance or any portion thereof without charge or premium.
7. Default. If any payment is not paid when due, or if the undersigned
breach any other agreement with the holder of this note, the undersigned will be
in default. Upon default, the holder may declare the unpaid principal balance
and all accrued interest and unpaid late charges, if any, immediately due and
payable, without notice, and Obligors will then pay that amount.
1
Upon default, the holder may also increase the interest rate to a rate
equal to four (4) percentage points greater than the rate otherwise provided in
this note, and such interest rate shall apply until the note is fully paid. In
addition, the holder may include any unpaid interest and late charges at the
time of acceleration as part of the amount due under this note and subject to
interest at the higher rate determined according to this paragraph.
The holder may employ attorneys or other agents to collect amounts due
under this note if the undersigned is in default or to otherwise enforce the
terms of this note and any agreement securing this note, and the undersigned
agrees to pay all fees, costs and expenses incurred by the holder as a
consequence of its default. Such fees, costs and expenses include attorneys'
fees whether or not litigation is commenced and including any appeal, fees or
expenses incurred in any bankruptcy, receivership, or other insolvency
proceedings, any anticipated post-judgment collection charges, and all other
costs of collection, including court costs.
The holder may delay enforcing any of its rights under this note without
forfeiting such rights. In the event litigation is commenced, the undersigned
agrees to submit to the jurisdiction of the court in the county in which Anyox
Resources Inc. is located.
8. Waiver. The undersigned hereby waives presentment, demand for payment,
protest, notice of nonpayment or dishonor, and any relief, waiver or discharge
arising from any extension of time for payment granted before, at or after
maturity, or for any other causes.
ORAL PROMISES TO FORGIVE PAYMENT OR TO FOREBEAR ENFORCEMENT OF PAYMENT ARE NOT
ENFORCEABLE.
WEB PARTNERS, INC.
-----------------------------------
By Xxxx Xxxx
Its President
2
EXHIBIT F TO
SHARE EXCHANGE AGREEMENT
DESIGNATIONS
OF CLASS A PREFERRED STOCK
OF
[CORPNAME]
2.2.1. Class A Convertible Preferred Stock. The rights, preferences,
privileges and limitations granted to and imposed on the Class A Preferred Stock
of this corporation (the "Class A Stock"), are as set forth below in this
Section 2.2.1.
2.2.1.1. Dividends. Dividends shall be declared and set aside, out of
funds or assets of this corporation legally available therefor, for any shares
of Class A Stock only upon resolution of the Board of Directors; provided,
however:
(a) no dividend may be declared or paid on shares of Common Stock
if the net assets of this corporation after such event would be insufficient to
make the liquidation payment described in paragraph 2.2.1.2(a) on shares of
Class A Stock;
(b) if the Board of Directors declares a dividend payable upon
shares of Common Stock, the holders of shares of Class A Stock shall be entitled
to dividends per share of Class A Stock as would be declared payable on the
largest number of whole shares of Common Stock into which each share of Class A
Stock held by each holder thereof could be converted, based upon the total
number of shares that could be converted at any one time by such holder thereof,
not upon each share of Class A Stock that could be converted (as of the record
date for the determination of holders of shares of Common Stock entitled to
receive such dividend) pursuant to the provisions of subsection 2.2.1.4 hereof;
(c) if the Board of Directors declares a dividend payable upon
securities of this corporation, other than Common Stock, payable in Common Stock
or securities of this corporation convertible into or otherwise exchangeable for
Common Stock, the holders of shares of Class A Stock shall be entitled to
receive, upon conversion of the Class A Stock, in addition to the number of
shares of Common Stock receivable thereon, the number of shares of such
securities distributed in as nearly an equivalent manner to protect the rights
of the holders of Class A Stock against dilution or impairment; and
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
(d) if the Board of Directors declares a dividend payable in
shares of this corporation's capital stock or assets, then those shares of
capital stock or the assets calculated to be payable on shares of Class A Stock
shall not be distributed, but shall instead be reserved for issuance and/or
distribution upon conversion of Class A Stock. In the case of a dividend payable
in shares of Common Stock, the dividend shall be considered the subject of an
Extraordinary Common Stock Event (as defined in paragraph 2.2.1.4(d)), thus
affecting the number of shares of Common Stock to be received upon the
conversion of the Class A Stock.
2.2.1.2. Liquidation, Dissolution or Winding Up.
(a) Treatment at Liquidation, Dissolution or Winding Up.
(i) In the event of any liquidation, dissolution or winding
up of this corporation, whether voluntary or involuntary, holders of each share
of Class A Stock shall be entitled to be paid before any sums shall be paid or
any assets distributed among the holders of shares of: (A) Preferred Stock
subordinate to (1) the Class A Stock and (2) all other shares of Preferred Stock
that shall participate pari passu with the Class A Stock upon liquidation, or
(B) Common Stock; out of the assets of this corporation available for
distribution to holders of this corporation's stock of all classes, whether such
assets are capital, surplus or earnings, the sum of $0.85 per share of Class A
Stock (which amount shall be subject to equitable adjustment whenever there
shall occur after the final closing of the offering of Class A Stock a stock
split, combination, reclassification or other similar event involving the Class
A Stock).
(ii) If the assets of this corporation are insufficient to
permit payment in full to the holders of shares of Class A Stock as provided in
this subsection 2.2.1.2 and payment in full to the holders of all other shares
of Preferred Stock that shall participate pari passu with the Class A Stock upon
liquidation, then the entire assets of this corporation available for such
distribution shall be distributed ratably among the holders of shares of Class A
Stock and all other shares of Preferred Stock that shall participate pari passu
with the Class A Stock upon liquidation according to the respective amounts
which would be payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to said shares were paid
in full.
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 2
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
(iii) After payment shall have been made in full to: (A) the
holders of shares of Class A Stock and all other shares of Preferred Stock that
shall participate pari passu with the Class A Stock upon liquidation, and (B)
the holders of all other shares of Preferred Stock (1) subordinate to the Class
A Stock and all other shares of Preferred Stock that shall participate pari
passu with the Class A Stock upon liquidation (2) but prior to the Common Stock
upon liquidation; or funds necessary for such payments shall have been set aside
by this corporation in trust for the account of the holders of shares of all
such Preferred Stock, so as to be available for such payments, all remaining
assets available for distribution to stockholders shall be distributed ratably
solely among the holders of shares of Common Stock to the exclusion of the
holders of shares of such Preferred Stock.
(b) Treatment of Consolidations, Mergers and Sales of Assets.
(i) A consolidation or merger of this corporation into or
with another corporation (as a result of which the holders of more than 50% of
the shares of Common Stock receive cash, stock or other property in exchange for
their shares of such stock) or a sale of all or substantially all of the assets
of this corporation shall not be regarded as a liquidation, dissolution or
winding up of the affairs of this corporation.
(ii) As part of any consolidation, merger or sale of assets
referred to in subparagraph 2.2.1.2(b)(i), provision shall be made so that the
holders of shares of Class A Stock shall thereafter be entitled to receive upon
conversion of the Class A Stock, the number of shares of stock or other
securities or property to which such holder would have been entitled if such
holder had converted its shares of Class A Stock immediately prior to such
consolidation, merger or sale of assets.
(c) Distributions Other Than Cash. Whenever the distribution
provided for in this subsection 2.2.1.2 shall be payable in property other than
cash, the value of such distribution shall be the fair market value of such
property as determined in good faith by the Board of Directors.
2.2.1.3. Voting Power.
(a) General Rule. Except as required by law and as provided by
paragraphs 2.2.1.3(b and c), (i) each holder of shares of Class A Stock shall be
entitled to vote on
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 3
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
all matters and shall be entitled to that number of votes equal to the largest
number of whole shares of Common Stock into which such holder's shares of Class
A Stock could be converted under subsection 2.2.1.4 hereof, based upon the total
number of shares that could be converted at any one time by such holder thereof,
not upon each share of Class A Stock that could be converted, at the record date
for the determination of stockholders entitled to vote on such matter or, if no
such record date is established, at the date such vote is taken or any written
consent of stockholders is solicited, and (ii) the holders of all shares,
Preferred and Common, shall vote together as one class on all matter requiring a
vote of stockholders according to the number of votes assigned to them by the
Certificate of Incorporation and the DGCL.
(b) Special Voting Powers. With regard to any vote in respect of
the following matters, the authorized Class A Stock shall be entitled, in the
aggregate, with relative voting powers among the holders of Class A Stock
apportioned according to their respective holdings, to cast votes equal to 51%
of the votes necessary to authorize or take action in respect of such matter at
a meeting at which all shares entitled to vote thereon were present and voted,
with the voting rights of all other classes of stock (whether preferred or
common and whether currently existing or to be created) being entitled, in the
aggregate, to cast votes equal to 49% of the votes necessary to authorize or
take action in respect of such matter at a meeting at which all shares entitled
to vote thereon were present and voted:
(i) Directors. Any election of directors or proposal to
remove a director; or
(ii) Amendment of Articles of Incorporation or Bylaws. Any
amendment or repeal of the Articles of Incorporation or Bylaws, including any
such action which prohibits the Board of Directors from reconsidering any
amendment or repeal of the Bylaws.
2.2.1.4. Conversion Rights. The holders of shares of Class A Stock
shall have the following rights with respect to the conversion of shares of
Class A Stock into shares of Common Stock:
(a) General.
(i) Voluntary Conversion. Any share of Class A Stock may, at
the option of the holder, be converted at any time into such number of fully
paid and
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 4
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
nonassessable shares of Common Stock as are equal to the product
obtained by multiplying the Applicable Class A Conversion Rate (determined under
paragraph 2.2.1.4(b)) by the number of shares of Class A Stock being converted.
(ii) Mandatory Conversion. (A) Upon the closing of a Public
Distribution (as defined below), all outstanding shares of Class A Stock shall
be converted automatically into the number of shares of Common Stock into which
such shares of Class A Stock are convertible pursuant to subparagraph
2.2.1.4(a)(i) hereof, without any further action by the holders of such shares
and whether or not the certificates representing such shares are surrendered to
this corporation or its transfer agent for Common Stock. For these purposes, a
"Public Distribution" means a firmly underwritten public offering by this
corporation of shares of Common Stock, registered under the Securities Act of
1933, in which the aggregate offering proceeds paid for such shares by the
public is at least $10 million (before payment of underwriters' discounts and
commissions). (B) All outstanding shares of Class A Stock shall also be
converted automatically into the number of shares of Common Stock into which
such shares of Class A Stock are convertible pursuant to subparagraph
2.2.1.4(a)(i) hereof, without any further action of the holders of such shares
and whether or not the certificates representing such shares are surrendered to
this corporation or its transfer agent for Common Stock, on the date that
holders of a majority of the shares of Class A Stock then outstanding deliver to
this corporation their written consent to have their Class A Stock converted
into shares of Common Stock.
(b) Applicable Class A Conversion Rate. The conversion rate in
effect at any time (the "Applicable Class A Conversion Rate") shall be the
quotient obtained by dividing $0.85 by the Applicable Class A Conversion Value,
calculated as provided in paragraph 2.2.1.4(c) and subsection 2.2.1.6.
(c) Applicable Class A Conversion Value. The "Applicable Class A
Conversion Value" in effect from time to time, except as adjusted in accordance
with paragraph 2.2.1.4(d) or subsection 2.2.1.6 hereof, shall be $0.85.
(d) Adjustments to Applicable Class A Conversion Value Upon
Extraordinary Common Stock Event. Upon the happening of an Extraordinary Common
Stock Event (as defined below) after the final closing of the offering of Class
A Stock, the Applicable Class A Conversion Value shall, simultaneously with the
happening of such Extraordinary Common Stock Event, be adjusted by multiplying
the then effective Applicable Class A
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 5
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
Conversion Value by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such Extraordinary
Common Stock Event and the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such Extraordinary Common Stock
Event, and the product so obtained shall thereafter be the Applicable Class A
Conversion Value. The Applicable Class A Conversion Value, as so adjusted, shall
be readjusted in the same manner upon the happening of any successive
Extraordinary Common Stock Event or Events.
"Extraordinary Common Stock Event" shall mean (i) the issue of
additional shares of Common Stock as a dividend or other distribution on
outstanding stock of this corporation, (ii) a subdivision of outstanding shares
of Common Stock into a greater number of shares of Common Stock, or (iii) a
combination of outstanding shares of Common Stock into a smaller number of
shares of Common Stock.
(e) Capital Reorganization or Reclassification. If the shares of
Common Stock issuable upon the conversion of shares of Class A Stock shall be
changed into the same or a different number of shares of any class or classes of
stock whether by capital reorganization, reclassification or otherwise (other
than a subdivision or combination of shares or stock dividend provided for
elsewhere in this subsection 2.2.1.4), then and in each such event the holder of
each share of Class A Stock shall have the right thereafter to convert such
share into the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change
by holders of the number of shares of Common Stock into which such share of
Class A Stock might have been converted immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as
provided herein.
(f) Certificate as to Adjustments; Notice by Corporation. In each
case of an adjustment or readjustment of the Applicable Class A Conversion Rate
after the final closing of the offering of Class A Stock, this corporation, at
its expense, will furnish each holder of shares of Class A Stock with a
certificate, prepared by its President or Chief Financial Officer, showing such
adjustment or readjustment, and stating in detail the facts upon which such
adjustment or readjustment is based.
(g) Exercise of Conversion Privilege. To exercise its conversion
privilege, a holder of shares of Class A Stock shall surrender the certificate
or certificates
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 6
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
representing the shares being converted to this corporation at its principal
office, and shall give written notice to this corporation at that office that
such holder elects to convert such shares. Such notice shall also state the name
or names (with address or addresses) in which the certificate or certificates
for shares of Common Stock issuable upon such conversion shall be issued. The
certificate or certificates for shares of Class A Stock surrendered for
conversion shall be accompanied by proper assignment thereof to this corporation
or in blank. The date when such written notice is received by this corporation,
together with the certificate or certificates representing the shares of Class A
Stock being converted, shall be the "Class A Conversion Date". As promptly as
practicable after the Class A Conversion Date, this corporation shall issue and
shall deliver to the holder of shares of Class A Stock being converted, or to
such other person as such holder may request in writing, such certificate or
certificates as it may request for the number of whole shares of Common Stock
issuable upon the conversion of such shares of Class A Stock in accordance with
the provisions of this subsection 2.2.1.4, such number of whole shares shall be
based upon the total number of shares being converted by such holder, not upon
each share of Class A Stock being converted, cash in the amount of all accrued
and unpaid dividends on such shares of Class A Stock, whether or not earned or
declared, up to and including the Class A Conversion Date, and cash, as provided
in paragraph 2.2.1.4(h), in respect of any fraction of a share of Common Stock
issuable upon such conversion. Such conversion shall be deemed to have been
effected immediately prior to the close of business on the Class A Conversion
Date, and at such time the rights of the holder as holder of the converted
shares of Class A Stock shall cease and the person or persons in whose name or
names any certificate or certificates for shares of Common Stock shall be
issuable upon such conversion shall be deemed to have become the holder or
holders of record of the shares of Common Stock represented thereby.
(h) Cash in Lieu of Fractional Shares. No fractional shares of
Common Stock or scrip representing fractional shares shall be issued upon the
conversion of shares of Class A Stock. Instead of any fractional shares of
Common Stock which would otherwise be issuable upon conversion of shares of
Class A Stock, this corporation shall pay to the holder of shares of Class A
Stock which were converted a cash adjustment in respect of such fractional
shares in an amount equal to the same fraction of the market price per share of
Common Stock (as determined in a reasonable manner prescribed by the Board of
Directors) at the close of business on the Class A Conversion Date. The
determination as to whether or not any fractional shares are issuable shall be
based upon the total number of shares of Class A Stock being converted at any
one time by any holder thereof, not upon each share of Class A Stock being
converted.
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 7
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
(i) Partial Conversion. In the event some but not all of the
shares of Class A Stock represented by a certificate or certificates surrendered
by a holder are converted, this corporation shall execute and deliver to the
holder or to such other person as the holder may request in writing, at the
expense of this corporation, a new certificate representing the number of shares
of Class A Stock which were not converted.
(j) Reservation of Common Stock. This corporation shall at all
times reserve and keep available out of its authorized but unissued shares of
Common Stock, solely for the purpose of effecting the conversion of the shares
of Class A Stock, such number of its shares of Common Stock as shall from time
to time be sufficient to effect the conversion of all outstanding shares of
Class A Stock, and if at any time the number of authorized but unissued shares
of Common Stock shall not be sufficient to effect the conversion of all then
outstanding shares of Class A Stock, this corporation shall take such corporate
action as may be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such purpose.
2.2.1.5. Redemption. The Class A Stock shall not be redeemable by
this corporation.
2.2.1.6. Notice. The holders of Class A Stock will be entitled to
receive a notice at least twenty days prior to the date specified therein
indicating (a) the record date for the purpose of determining the holders of any
class of securities entitled to receive any dividends or other distribution or
(b) the date on which any reorganization of this corporation or reclassification
of its capital stock is expected to become effective.
2.2.1.7. Protective Provision. No class of stock, whether common or
preferred, shall be created, and no amendment to or repeal of the Articles of
Incorporation or Bylaws shall be passed, which dilutes or undermines the voting
powers, designations, preferences, limitations, restrictions and relative rights
of the Class A Stock, without, in any such case, the consent of the holders of a
majority of the outstanding shares of Class A Stock.
2.2.1.8. Integration with Articles of Incorporation. This
Designation of Class A Preferred Stock has been adopted pursuant to and is an
integral part of this corporation's
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 8
Stormix Technologies Inc.
Designations of Preferred Stock
First Class, Class A
Articles of Incorporation. Capitalized terms not defined herein shall have the
meaning given them elsewhere in the Articles of Incorporation of this
corporation.
SHARE EXCHANGE AGREEMENT
EXHIBIT F
Page 9
