REFORMED AGREEMENT CONCERNING THE EXCHANGE OF SECURITIES BY AND BETWEEN DIXIE LEE INTERNATIONAL INDUSTRIES, Inc. AND THE SHAREHOLDER OF DIXIE LEE FOOD SYSTEMS LTD., DIXIE LEE FOOD SYSTEMS (U.S.A.), INC.; AND DIXIE LEE CAPITAL CORPORATION
Exhibit 10.1
REFORMED
CONCERNING
THE EXCHANGE OF SECURITIES
BY
AND BETWEEN
XXXXX
XXX INTERNATIONAL INDUSTRIES, Inc.
AND
THE
SHAREHOLDER OF
XXXXX
XXX FOOD SYSTEMS LTD.,
XXXXX
XXX FOOD SYSTEMS (U.S.A.), INC.; AND
XXXXX
XXX CAPITAL CORPORATION
THIS REFORMED AGREEMENT (“Agreement”)
is made as of this 15th day of
June 2007, by and between Xxxxx Xxx International Industries, Inc. a Nevada
corporation (“PublicCo”)
and Xxxxxx Xxxxxx (“Murano”), the sole shareholder of (0) 0000000 Ontario Ltd.
which, in turn, is the sole shareholder of Xxxxx Xxx Systems Ltd., an Ontario
corporation, (“SystemsCA”), (2) Xxxxx Xxx Food Systems (U.S.A.), Inc., a New
York corporation (“SystemsUS”) and (3) Xxxxx Xxx Capital Corporation
(“CapitalCo”).
WHEREAS, PublicCo desires to acquire
all of the issued and outstanding common stock of SystemsCA, SystemsUS and
CapitalCo from 1652437 Ontario Ltd. and Murano, respectively, in
exchange for both newly issued unregistered shares of common stock of PublicCo
and newly designated and issued unregistered shares of preferred stock of
PublicCo;
WHEREAS, 1652437 Ontario
Ltd. agrees to exchange one hundred percent (100%) of the issued and
outstanding shares of stock it holds in SystemsCA for Twenty Six Million, Five
Hundred Thousand (26,500,000) shares of PublicCo’s Common Stock and Murano
agrees to exchange one hundred percent (100%) of the issued and outstanding
shares he holds in, SystemsUS and CapitalCo for Three Million Two
Hundred Fifty Thousand (3,250,000) shares of PublicCo’s Acquisition Series of
Convertible Preferred Stock (hereinafter defined);
NOW, THEREFORE, intending to
be legally bound, and in consideration of the mutual promises, covenants and
representations contained herein, the parties hereto agree as
follows:
ARTICLE
I
Exchange
of Securities
1.1 Issuance of Securities.
Subject to the terms and conditions of this Agreement, PublicCo agrees to issue
and exchange the Twenty-six Million, Five Hundred Thousand (26,500,000) shares
of its Common Stock and the Three Million Two Hundred Fifty Thousand (3,250,000)
shares of its Acquisition Series of Convertible Preferred Stock Shares for one
hundred percent (100%) of the issued and outstanding shares of stock of
SystemsCA, owned by 1652437 Ontario Ltd. and for one hundred percent (100%) of
the issued and outstanding shares of stock of SystemsUS and CapitalCo, all of
which are held by Murano.
1.2 Exemption from Registration.
The parties hereto intend that all PublicCo common stock to be issued to 1652437
Ontario Ltd. and Murano shall be exempt from the registration requirements of
the Securities Act of 1933, as amended (the “Act”),
pursuant to Section 4(2) and/or Regulation D of the Act and rules and
regulations promulgated thereunder. In furtherance thereof, Murano
will execute and deliver to PublicCo on the closing date of this Agreement (the
“Closing
Date”) appropriate investment intent certification.
1
ARTICLE
IIARTICLE II
Representations
and Warranties of PrivateCo
Each of SystemsCA, SystemsUS and
CapitalCo hereby represents and warrants to PublicCo as follows:
A. SystemsCA
2.1 Organization. SystemsCA is a
corporation duly organized, validly existing and in good standing under the laws
of Ontario, has all necessary corporate powers to own its properties and to
carry on its business as now owned and operated by it, and is duly qualified to
do business and is in good standing in each of the provinces where its business
requires qualification.
2.2 Capital. There are an
aggregate of One Hundred (100) shares of SystemsCA common stock outstanding.
There are no outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities or other agreements or commitments
obligating SystemsCA to issue any additional SystemsCA Stock of any
class.
2.3 Subsidiaries. SystemsCA
currently has no subsidiaries.
2.4 Directors and Executive
Officers. The names and titles of the directors and executive officers of
SystemsCA are as follows:
|
Name
|
Position
|
|
|
Xxxxxx
Xxxxxx
|
Sole
Officer and Director
|
2.5 Financial Statements. On or
before the Closing Date, SystemsCA shall provide PublicCo with unaudited
financial statements of SystemsCA for the three months ended March 31, 2007 and
a stub-out to May 31, 2007 (the “SystemsCA
Financial Statements”). The SystemsCA Financial Statements
will be prepared in accordance with generally accepted accounting principles and
practices consistently followed by SystemsCA throughout the periods indicated, and fairly
present the financial position of SystemsCA as of the date of the balance sheets
included in the SystemsCA Financial Statements and the results of operations for
the periods indicated.
2.6 Absence of Changes. Since May
31, 2007, there has not been any material change in the financial condition or
operations of SystemsCA, except as contemplated by this Agreement. As
used throughout this Agreement, “material” means: Any change or
effect (or development that, insofar as can be reasonably foreseen, is likely to
result in any change or effect) that causes substantial increase or diminution
in the business, properties, assets, condition (financial or otherwise) or
results of operations of a party. Taken as a whole, material change
shall not include changes in national or international economic conditions or
industry conditions generally; changes or possible changes in statutes and
regulations applicable to a party; or the loss of employees, customers or
suppliers by a party as a direct or indirect consequence of any announcement
relating to this transaction.
2
2.7 Absence of Undisclosed
Liabilities. As of May 31, 2007, SystemsCA did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the SystemsCA Financial Statements.
2.8 Tax Returns. SystemsCA has
filed all federal and Provincial tax returns required by law and has paid all
taxes, assessments and penalties due and payable. The provisions for taxes, if
any, reflected in Exhibit 2.5 are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by SystemsCA.
2.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, PublicCo, its legal counsel and accountants
shall have the opportunity to meet with SystemsCA’s accountants and attorneys to
discuss the financial condition of SystemsCA during reasonable business hours
and in a manner that does not interfere with the normal operation of SystemsCA’s
business. SystemsCA shall make available to PublicCo all books and
records of SystemsCA.
2.10 Intellectual Property Rights.
SystemsCA owns or has the right to use all trademarks, service marks, trade
names, copyrights and patents material to its business.
2.11 Compliance with Laws. To the
best of SystemsCA’s knowledge, SystemsCA has complied with, and is not in
violation of, applicable federal, provincial or local statutes, laws and
regulations, including federal and provincial securities laws, except where such
non-compliance would not have a material adverse impact upon its business or
properties.
2.12 Litigation. SystemsCA is not a
defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of SystemsCA, threatened against or affecting SystemsCA or its
business, assets or financial condition. SystemsCA is not in default
with respect to any order, writ, injunction or decree of any federal, state,
local or foreign court, department, agency or instrumentality applicable to
it. SystemsCA is not engaged in any material litigation to recover
monies due to it.
2.13 Authority. The Board of
Directors of 1652437 Ontario Ltd. has authorized the execution of
this Agreement and the consummation of the transactions contemplated herein, and
1652437 Ontario Ltd. has full power and authority to execute, deliver
and perform this Agreement, and this Agreement is a legal, valid and binding
obligation of 1652437 Ontario Ltd. and is enforceable in accordance
with its terms and conditions. Murano, as the sole shareholder of
1652437 Ontario Ltd. has agreed to and has approved the terms of this Agreement
and the exchange of securities contemplated hereby.
3
2.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by 1652437
Ontario Ltd. and the performance by 1652437 Ontario
Ltd. of its obligations hereunder in the time and manner contemplated
will not cause, constitute or conflict with or result in (a) any breach or
violation of any of the provisions of or constitute a default under any license,
indenture, mortgage, instrument, article of incorporation, bylaw, or other
agreement or instrument to which 1652437 Ontario Ltd. is a party, or
by which it may be bound, nor will any consents or authorizations of any party
other than those hereto be required, (b) an event that would permit any party to
any agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of SystemsCA, or (c) an event that would result
in the creation or imposition of any lien, charge or encumbrance on any asset of
SystemsCA.
2.15 Full Disclosure . None of the
representations and warranties made by SystemsCA herein or in any exhibit,
certificate or memorandum furnished or to be furnished by SystemsCA, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
2.16 Assets. SystemsCA’s assets are
fully included in Exhibit 2.5 and are
not subject to any claims or encumbrances except as indicated in Exhibit
2.5.
2.17 Material Contracts.
SystemsCA’s material contracts are attached hereto as Exhibit
2.17.
2.18 Indemnification. 1652437 Ontario
Ltd. agrees to indemnify, defend and hold PublicCo harmless against
and in respect of any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries and deficiencies, including
interest, penalties and reasonable attorney fees asserted by third parties
against PublicCo which arise out of, or result from (i) any breach by 1652437
Ontario Ltd. in performing any of its covenants or agreements under
this Agreement or in any schedule, certificate, exhibit or other instrument
furnished or to be furnished by SystemsCA under this Agreement, (ii) a failure
of any representation or warranty in this Article II or (iii) any untrue
statement made by SystemsCA in this Agreement.
2.19 Criminal or Civil Acts For the period of five
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of SystemsCA has been convicted of a felony crime,
filed for personal bankruptcy, been the subject of a Commission or NASD judgment
or decree, or is currently the subject to any investigation in connection with a
felony crime or Commission or NASD proceeding, with the exception of Xxxxxx
Xxxxxx making a voluntary assignment into bankruptcy in May 2005 as a result of
events entirely unconnected with his business activities. Mr. Murano
received his discharge without opposition several months later.
4
2.20 Restricted
Securities. SystemsCA and Murano acknowledge that all of the
PublicCo Shares issued by PublicCo are restricted securities and none of such
securities may be sold or publicly traded except in accordance with the
provisions of the Act.
B.
SystemsUS
2.21 Organization. SystemsUS is a
corporation duly organized, validly existing and in good standing under the laws
of New York, has all necessary corporate powers to own its properties and to
carry on its business as now owned and operated by it, and is duly qualified to
do business and is in good standing in each of the states where its business
requires qualification.
2.22 Capital. There are an
aggregate of One Hundred (100) shares of SystemsUS’ common stock outstanding.
There are no outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities or other agreements or commitments
obligating SystemsUS to issue any additional SystemsUS Stock of any
class.
2.23 Subsidiaries. SystemsUS
currently has no subsidiaries.
2.24 Directors and Executive
Officers. The names and titles of the directors and executive officers of
SystemsUS are as follows:
|
Name
|
Position
|
|
|
Xxxxxx
Xxxxxx
|
Sole
Officer and Director
|
2.25 Financial Statements On or
before the Closing Date, SystemsUS shall provide PublicCo with unaudited
financial statements of SystemsUS for the three months ended March 31, 2007 and
a stub-out to May 31, 2007 (the “SystemsUS
Financial Statements”). The SystemsUS Financial Statements
will be prepared in accordance with generally accepted accounting principles and
practices consistently followed by SystemsUS throughout the periods indicated, and fairly
present the financial position of SystemsUS as of the date of the balance sheets
included in the SystemsUS Financial Statements and the results of operations for
the periods indicated.
2.26 Absence of Changes . Since May
31, 2007, there has not been any material change in the financial condition or
operations of SystemsUS, except as contemplated by this Agreement. As
used throughout this Agreement, “material” means: Any change or
effect (or development that, insofar as can be reasonably foreseen, is likely to
result in any change or effect) that causes substantial increase or diminution
in the business, properties, assets, condition (financial or otherwise) or
results of operations of a party. Taken as a whole, material change
shall not include changes in national or international economic conditions or
industry conditions generally; changes or possible changes in statutes and
regulations applicable to a party; or the loss of employees, customers or
suppliers by a party as a direct or indirect consequence of any announcement
relating to this transaction.
5
2.27 Absence of Undisclosed
Liabilities. As of May 31, 2007, SystemsUS did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the SystemsUS Financial Statements.
2.28 Tax Returns. SystemsUS has
filed all federal, state and local tax returns required by law and has paid all
taxes, assessments and penalties due and payable. The provisions for taxes, if
any, reflected in Exhibit 2.5 are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by SystemsUS.
2.29 Investigation of Financial Condition
Without in any manner reducing or otherwise mitigating the
representations contained herein, PublicCo, its legal counsel and accountants
shall have the opportunity to meet with SystemsUS’s accountants and attorneys to
discuss the financial condition of SystemsUS during reasonable business hours
and in a manner that does not interfere with the normal operation of SystemsUS’s
business. SystemsUS shall make available to PublicCo all books and
records of SystemsUS.
2.30 Intellectual Property Rights
SystemsUS owns or has the right to use all trademarks, service marks,
trade names, copyrights and patents material to its business.
2.31 Compliance with Laws To the
best of SystemsUS’s knowledge, SystemsUS has complied with, and is not in
violation of, applicable federal, state or local statutes, laws and regulations,
including federal and state securities laws, except where such non-compliance
would not have a material adverse impact upon its business or
properties.
2.32 Litigation . SystemsUS is not
a defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of SystemsUS, threatened against or affecting SystemsUS or its
business, assets or financial condition. SystemsUS is not in default
with respect to any order, writ, injunction or decree of any federal, state,
local or foreign court, department, agency or instrumentality applicable to
it. SystemsUS is not engaged in any material litigation to recover
monies due to it.
2.33 Authority. The Board of
Directors of SystemsUS has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and SystemsUS has full
power and authority to execute, deliver and perform this Agreement, and this
Agreement is a legal, valid and binding obligation of SystemsUS and is
enforceable in accordance with its terms and conditions. A majority
of Murano have agreed to and have approved the terms of this Agreement and the
exchange of securities contemplated hereby.
6
2.34 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by SystemsUS
and the performance by SystemsUS of its obligations hereunder in the time and
manner contemplated will not cause, constitute or conflict with or result in (a)
any breach or violation of any of the provisions of or constitute a default
under any license, indenture, mortgage, instrument, article of incorporation,
bylaw, or other agreement or instrument to which SystemsUS is a party, or by
which it may be bound, nor will any consents or authorizations of any party
other than those hereto be required, (b) an event that would permit any party to
any agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of SystemsUS, or (c) an event that would result
in the creation or imposition of any lien, charge or encumbrance on any asset of
SystemsUS.
2.35 Full Disclosure. None of the
representations and warranties made by SystemsUS herein or in any exhibit,
certificate or memorandum furnished or to be furnished by SystemsUS, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
2.36 Assets. SystemsUS’s assets are
fully included in Exhibit 2.5 and are
not subject to any claims or encumbrances except as indicated in Exhibit
2.5.
2.37 Material Contracts.
SystemsUS’s material contracts are attached hereto as Exhibit
2.17.
2.38 Indemnification. SystemsUS
agrees to indemnify, defend and hold PublicCo harmless against and in respect of
any and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including interest, penalties and
reasonable attorney fees asserted by third parties against PublicCo which arise
out of, or result from (i) any breach by SystemsUS in performing any of its
covenants or agreements under this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by SystemsUS under this
Agreement, (ii) a failure of any representation or warranty in this Article II
or (iii) any untrue statement made by SystemsUS in this Agreement.
2.39 Criminal or Civil Acts. For the period of five
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of SystemsUS has been convicted of a felony crime,
filed for personal bankruptcy, been the subject of a Commission or NASD judgment
or decree, or is currently the subject to any investigation in connection with a
felony crime or Commission or NASD proceeding, with the exception of Xxxxxx
Xxxxxx making a voluntary assignment into bankruptcy in May 2005 as a result of
events entirely unconnected with his business activities. Mr. Murano
received his discharge without opposition several months later.
2.40 Restricted Securities . SystemsUS
and Murano acknowledge that all of the PublicCo Shares issued by PublicCo are
restricted securities and none of such securities may be sold or publicly traded
except in accordance with the provisions of the Act.
C. CapitalCo
7
2.41 Organization. CapitalCo is a
corporation duly organized, validly existing and in good standing under the laws
of Ontario, has all necessary corporate powers to own its properties and to
carry on its business as now owned and operated by it, and is duly qualified to
do business and is in good standing in each of the states where its business
requires qualification.
2.42 Capital. There is One (1)
share of CapitalCo’s common stock outstanding. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities or other agreements or commitments obligating CapitalCo to issue any
additional CapitalCo Stock of any class.
2.43 Subsidiaries. CapitalCo
currently has no subsidiaries.
2.44 Directors and Executive
Officers2.4Directors
and Executive Officers . The names and titles of the directors and
executive officers of CapitalCo are as follows:
|
Name
|
Position
|
|
|
Xxxxxx
Xxxxxx
|
Sole
Officer and Director
|
2.45 Financial Statements. On or
before the Closing Date, CapitalCo shall provide PublicCo with unaudited
financial statements of CapitalCo for the three months ended March 31, 2007 and
a stub-out to May 31, 2007 (the “CapitalCo Financial
Statements”). The CapitalCo Financial Statements will be prepared in
accordance with generally accepted accounting principles and practices
consistently followed by CapitalCo throughout the periods indicated, and fairly
present the financial position of CapitalCo as of the date of the balance sheets
included in the CapitalCo Financial Statements and the results of operations for
the periods indicated.
2.46 Absence of Changes. Since May
31, 2007, there has not been any material change in the financial condition or
operations of CapitalCo, except as contemplated by this Agreement. As
used throughout this Agreement, “material” means: Any change or
effect (or development that, insofar as can be reasonably foreseen, is likely to
result in any change or effect) that causes substantial increase or diminution
in the business, properties, assets, condition (financial or otherwise) or
results of operations of a party. Taken as a whole, material change
shall not include changes in national or international economic conditions or
industry conditions generally; changes or possible changes in statutes and
regulations applicable to a party; or the loss of employees, customers or
suppliers by a party as a direct or indirect consequence of any announcement
relating to this transaction.
2.47 Absence of Undisclosed
Liabilities. As of May 31, 2007, CapitalCo did not have any material
debt, liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, and whether due or to become due, that is not reflected
in the CapitalCo Financial Statements.
8
2.48 Tax Returns. CapitalCo has
filed all federal and provinicial tax returns required by law and has paid all
taxes, assessments and penalties due and payable. The provisions for taxes, if
any, reflected in Exhibit 2.5 are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by CapitalCo.
2.49 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, CapitalCo, its legal counsel and accountants
shall have the opportunity to meet with CapitalCo’s accountants and attorneys to
discuss the financial condition of CapitalCo during reasonable business hours
and in a manner that does not interfere with the normal operation of CapitalCo’s
business. CapitalCo shall make available to CapitalCo all books and
records of CapitalCo.
2.50 Intellectual Property Rights.
CapitalCo owns or has the right to use all trademarks, service marks, trade
names, copyrights and patents material to its business.
2.51 Compliance with Laws . To the best of
CapitalCo’s knowledge, CapitalCo has complied with, and is not in violation of,
applicable federal, provincial or local statutes, laws and regulations,
including federal and provincial securities laws, except where such
non-compliance would not have a material adverse impact upon its business or
properties.
2.52 Litigation. CapitalCo is not a
defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of CapitalCo, threatened against or affecting CapitalCo or its
business, assets or financial condition. CapitalCo is not in default
with respect to any order, writ, injunction or decree of any federal, state,
local or foreign court, department, agency or instrumentality applicable to
it. CapitalCo is not engaged in any material litigation to recover
monies due to it.
2.53 Authority. The Board of
Directors of CapitalCo has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and CapitalCo has full
power and authority to execute, deliver and perform this Agreement, and this
Agreement is a legal, valid and binding obligation of CapitalCo and is
enforceable in accordance with its terms and conditions. A majority
of Murano have agreed to and have approved the terms of this Agreement and the
exchange of securities contemplated hereby.
2.54 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by CapitalCo
and the performance by CapitalCo of its obligations hereunder in the time and
manner contemplated will not cause, constitute or conflict with or result in (a)
any breach or violation of any of the provisions of or constitute a default
under any license, indenture, mortgage, instrument, article of incorporation,
bylaw, or other agreement or instrument to which CapitalCo is a party, or by
which it may be bound, nor will any consents or authorizations of any party
other than those hereto be required, (b) an event that would permit any party to
any agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of CapitalCo, or (c) an event that would result
in the creation or imposition of any lien, charge or encumbrance on any asset of
CapitalCo.
9
2.55 Full Disclosure. None of the
representations and warranties made by CapitalCo herein or in any exhibit,
certificate or memorandum furnished or to be furnished by CapitalCo, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
2.56 Assets . CapitalCo’s assets
are fully included in Exhibit 2.5 and are
not subject to any claims or encumbrances except as indicated in Exhibit
2.5.
2.57 Material Contracts.
CapitalCo’s material contracts are attached hereto as Exhibit
2.17.
2.58 Indemnification. CapitalCo
agrees to indemnify, defend and hold PublicCo harmless against and in respect of
any and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies, including interest, penalties and
reasonable attorney fees asserted by third parties against PublicCo which arise
out of, or result from (i) any breach by CapitalCo in performing any of its
covenants or agreements under this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by CapitalCo under this
Agreement, (ii) a failure of any representation or warranty in this Article II
or (iii) any untrue statement made by CapitalCo in this Agreement.
2.59 Criminal or Civil Acts. For the period of five
years prior to the execution of this Agreement, no executive officer, director
or principal stockholder of CapitalCo has been convicted of a felony crime,
filed for personal bankruptcy, been the subject of a Commission or NASD judgment
or decree, or is currently the subject to any investigation in connection with a
felony crime or Commission or NASD proceeding, with the exception of Xxxxxx
Xxxxxx making a voluntary assignment into bankruptcy in May 2005 as a result of
events entirely unconnected with his business activities. Mr. Murano
received his discharge without opposition several months later.
2.60 Restricted
Securities. CapitalCo and Murano acknowledge that all of the
PublicCo Shares issued by PublicCo are restricted securities and none of such
securities may be sold or publicly traded except in accordance with the
provisions of the Act.
10
ARTICLE
III
Representations
and Warranties of PublicCo
PublicCo represents and warrants
that:
3.1 Organization. PublicCo is a
corporation duly organized, validly existing and in good standing under the laws
of Nevada, has all necessary corporate powers to carry on its business, and is
duly qualified to do business and is in good standing in each of the states
where its business requires qualification.
3.2 Capital. The authorized
capital stock of PublicCo consists of Two Hundred Fifty Million Shares of $0.001
par value Common Stock and Ten Million Shares of $0.001 par value Preferred
Stock, of which Twenty Seven Million, Eighty Eight Thousand, Seven Hundred Fifty
One Shares of Common Stock will be outstanding on the Closing Date, and 0 Shares
of $0.001 par value Preferred Stock, none of which are outstanding. All of the
outstanding Shares of Common Stock is duly and validly issued, fully paid and
non-assessable. There are no outstanding subscriptions, options, rights,
warrants, debentures, instruments, convertible securities or other agreements or
commitments obligating PublicCo to issue any additional shares of its capital
stock of any class.
3.3 Subsidiaries. PublicCo does
not have any subsidiaries or own any interest in any other
enterprise.
3.4 Directors and Officers. The
names and titles of the directors and executive officers of PublicCo are as
follows:
|
Name
|
Position
|
|
|
Xxxxxx
Xxxxxx
|
President and
Director
|
|
|
Xxxxx
Xxxxxxxxx
|
Vice
President and Director
|
|
|
Xxxxxx
Xxxxxxxxx
|
Secretary
and Director
|
|
|
Xxxx
Xxxxxx
|
Director
|
3.5 Financial Statements. Exhibit 3.5 hereto
consists of the prepared by management financial statements of PublicCo for the
period from inception through December 31, 2006, March 31, 2007 and May 31, 2007
(the “PublicCo
Financial Statements”). These financials statements will be submitted to
the PublicCo’s auditor for review and audit. The PublicCo Financial Statements
have been prepared in accordance with generally accepted accounting principles
and practices consistently followed by PublicCo throughout the period indicated,
and fairly present the financial position of PublicCo as of the date of the
balance sheet included in the PublicCo Financial Statements and the results of
operations for the period indicated.
11
3.6 Absence of Changes. Since May
31, 2007, there has not been any material change in the financial condition or
operations of PublicCo, except as contemplated by this Agreement. As
used throughout this Agreement, “material” means: Any change or
effect (or development that, insofar as can be reasonably foreseen, is likely to
result in any change or effect) that causes substantial increase or diminution
in the business, properties, assets, condition (financial or otherwise) or
results of operations of a party. Taken as a whole, material change
shall not include changes in national or international economic conditions or
industry conditions generally; changes or possible changes in statutes and
regulations applicable to a party; or the loss of employees, customers or
suppliers by a party as a direct or indirect consequence of any announcement
relating to this transaction.
3.7 Absence of Undisclosed
Liabilities. As of May 31, 2007, PublicCo did not have any material debt,
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, that is not reflected in the
PublicCo Financial Statements.
3.8 Tax Returns. PublicCo has
filed all federal, state and local tax returns required by law and have paid all
taxes, assessments and penalties due and payable. The provisions for taxes, if
any, reflected in Exhibit 3.5 are
adequate for the periods indicated. There are no present disputes as
to taxes of any nature payable by PublicCo.
3.9 Investigation of Financial
Condition. Without in any manner reducing or otherwise mitigating the
representations contained herein, PrivateCo, its legal counsel and accountants
shall have the opportunity to meet with PublicCo’ accountants and attorneys to
discuss the financial condition of PublicCo during reasonable business hours and
in a manner that does not interfere with the normal operation of PublicCo’
business. PublicCo shall make available to PrivateCo all books and
records of PublicCo.
3.10 Intellectual Property Rights.
PublicCo has no trademarks, service marks, trade names, copyrights or patents
material to its business.
3.11 Compliance with Laws. To the
best of PublicCo’ knowledge, PublicCo has complied with, and is not in violation
of, applicable federal, state or local statutes, laws and regulations, including
federal and state securities laws, except where such non-compliance would not
have a material adverse impact upon its business or properties.
3.12 Litigation. PublicCo is not a
defendant in any suit, action, arbitration or legal, administrative or other
proceeding, or governmental investigation which is pending or, to the best
knowledge of PublicCo, threatened against or affecting PublicCo or its business,
assets or financial condition. PublicCo is not in default with
respect to any order, writ, injunction or decree of any federal, state, local or
foreign court, department, agency or instrumentality applicable to
it. PublicCo is not engaged in any material litigation to recover
monies due to it.
12
3.13 Authority. The Board of
Directors of PublicCo has authorized the execution of this Agreement and the
consummation of the transactions contemplated herein, and PublicCo has full
power and authority to execute, deliver and perform this Agreement, and this
Agreement is a legal, valid and binding obligation of PublicCo and is
enforceable in accordance with its terms and conditions.
3.14 Ability to Carry Out
Obligations. The execution and delivery of this Agreement by PublicCo and
the performance by PublicCo of its obligations hereunder in the time and manner
contemplated will not cause, constitute or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, instrument, article of incorporation, bylaw,
or other agreement or instrument to which PublicCo is a party, or by which it
may be bound, nor will any consents or authorizations of any party other than
those hereto be required, (b) an event that would permit any party to any
agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of PublicCo, or (c) an event that would result
in the creation or imposition of any lien, charge or encumbrance on any asset of
PublicCo.
3.15 Full Disclosure. None of the
representations and warranties made by PublicCo herein or in any exhibit,
certificate or memorandum furnished or to be furnished by PublicCo, or on its
behalf, contains or will contain any untrue statement of material fact or omit
any material fact the omission of which would be misleading.
3.16 Assets. PublicCo’ assets are
fully included in Exhibit 3.5 and are
not subject to any claims or encumbrances except as indicated in Exhibit
3.5.
3.17 Material Contracts. PublicCo
does not have any material contracts.
3.18 Indemnification. PublicCo
agrees to indemnify, defend and hold PrivateCo harmless against and in respect
of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorney fees asserted by third parties against PrivateCo which
arise out of, or result from (i) any breach by PublicCo in performing any of its
covenants or agreements under this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or to be furnished by
PublicCo under this Agreement, (ii) a failure of any representation
or warranty in this Article III or (iii) any untrue statement made by PublicCo
in this Agreement.
3.19 Criminal or Civil Acts. For the period of
five years prior to the execution of this Agreement, no executive officer,
director or principal stockholder of PublicCo has been convicted of a felony
crime, filed for personal bankruptcy, been the subject of a Commission or NASD
judgment or decree, or is currently the subject to any investigation in
connection with a felony crime or Commission or NASD proceeding, with the
exception of Xxxxxx Xxxxxx making a voluntary assignment into bankruptcy in May
2005 as a result of events entirely unconnected with his business
activities. Mr. Murano received his discharge without opposition
several months later.
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ARTICLE
IV
Covenants
Prior to the Closing Date
4.1 Investigative Rights. Prior to the Closing Date,
each party shall provide to the other party, and such other party’s counsel,
accountants, auditors and other authorized representatives, full access during
normal business hours and upon reasonable advance written notice to all of each
party’s properties, books, contracts, commitments and records for the purpose of
examining the same. Each party shall furnish the other party with all
information concerning each party’s affairs as the other party may reasonably
request. If during the investigative period one party learns that a
representation of the other party was not accurate, no such claim may be
asserted by the party so learning that a representation of the other party was
not accurate.
4.2 Conduct of Business Prior to
the Closing Date, each party shall conduct its business in the normal course and
shall not sell, pledge or assign any assets without the prior written approval
of the other party, except in the normal course of business. Neither
party shall amend its Articles of Incorporation or Bylaws (except as may be
described in this Agreement), declare dividends, redeem or sell stock or other
securities. Neither party shall enter into negotiations with any
third party or complete any transaction with a third party involving the sale of
any of its assets or the exchange of any of its common stock.
4.3 Confidential Information. Each party will
treat all non-public, confidential and trade secret information received from
the other party as confidential, and such party shall not disclose or use such
information in a manner contrary to the purposes of this
Agreement. Moreover, all such information shall be returned to the
other party in the event this Agreement is terminated.
4.4 Notice of
Non-Compliance Each party shall give prompt notice to the
other party of any representation or warranty made by it in this Agreement
becoming untrue or inaccurate in any respect or the failure by it to comply with
or satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement.
ARTICLE
V
Conditions
Precedent to PublicCo’s Performance
5.1 Conditions. PublicCo’s
obligations hereunder shall be subject to the satisfaction at or before the
Closing Date of all the conditions set forth in this Article
V. PublicCo may waive any or all of these conditions in whole or in
part without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by PublicCo of any other condition of or any of
PublicCo’s other rights or remedies, at law or in equity, if 1652437 Ontario
Ltd., SystemsCA, SystemsUS, CapitalCo or Murano shall be in default of any of
its or his representations, warranties or covenants under this
Agreement.
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5.2 Accuracy of
Representations. Except as
otherwise permitted by this Agreement, all representations and warranties by
1652437 Ontario Ltd., SystemsCA, SystemsUS, CapitalCo and Murano in
this Agreement or in any written statement that shall be delivered to PublicCo
by 1652437 Ontario Ltd., SystemsCA, SystemsUS, CapitalCo or Murano under this
Agreement shall be true and accurate on and as of the Closing Date as though
made at that time.
5.3 Performance. 1652437 Ontario
Ltd., SystemsCA, SystemsUS, CapitalCo and Murano shall have performed, satisfied
and complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it on or before the Closing
Date.
5.4 Absence of Litigation. No
action, suit or proceeding, including injunctive actions, before any court or
any governmental body or authority, pertaining to the transaction contemplated
by this Agreement or to its consummation, shall have been instituted or
threatened against PrivateCo on or before the Closing Date.
5.5 Officer’s Certificate.
PrivateCo shall have delivered to PublicCo a certificate dated the Closing Date
signed by the Chief Executive Officer of PrivateCo certifying that each of the
conditions specified in this Article has been fulfilled and that all of the
representations set forth in Article II are true and correct as of the Closing
Date.
5.6 Corporate Action. PrivateCo
shall have obtained the approval of Murano for the transaction contemplated by
this Agreement.
5.7 Acceptance of Financial
Statements. PublicCo shall have reviewed and in its sole discretion
accepted, prior to the Closing Date, the PrivateCo Financial Statements as set
forth in Exhibit
2.5.
ARTICLE
VI
Conditions
Precedent to PrivateCo’s Performance
6.1 Conditions. PrivateCo’s
obligations hereunder shall be subject to the satisfaction at or before the
Closing Date of all the conditions set forth in this Article VI. PrivateCo may
waive any or all of these conditions in whole or in part without prior notice;
provided, however, that no such waiver of a condition shall constitute a waiver
by PrivateCo of any other condition of or any of PrivateCo’s rights or remedies,
at law or in equity, if PublicCo shall be in default of any of its
representations, warranties or covenants under this Agreement.
6.2 Accuracy of Representations.
Except as otherwise permitted by this Agreement, all representations and
warranties by PublicCo in this Agreement or in any written statement that shall
be delivered to PrivateCo by PublicCo under this Agreement shall be true and
accurate on and as of the Closing Date as though made at that time.
15
6.3 Performance. PublicCo shall have
performed, satisfied and complied with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it on or before
the Closing Date.
6.4 Absence of Litigation. No
action, suit or proceeding before any court or any governmental body or
authority, pertaining to the transaction contemplated by this Agreement or to
its consummation, shall have been instituted or threatened against PublicCo on
or before the Closing Date.
6.5 Officer’s Certificate.
PublicCo shall have delivered to 1652437 Ontario Ltd., SystemsCA, SystemsUS,
CapitalCo and Murano a certificate dated the Closing Date signed by
the Chief Executive Officer of PublicCo certifying that each of the conditions
specified in this Article has been fulfilled and that all of the representations
set forth in Article III are true and correct as of the Closing
Date.
6.6 Payment of Liabilities. On or before the Closing
Date, PublicCo shall have paid any outstanding obligations and liabilities of
PublicCo through the Closing Date, including obligations created subsequent to
the execution of this Agreement.
6.7 Directors of PublicCo. On the
Closing Date, the Board of Directors of PublicCo shall appoint the designees of
Murano to PublicCo’s Board of Directors and simultaneously resign from the Board
of Directors.
6.8 Officers of PublicCo. On the
Closing Date, the newly constituted Board of Directors of PublicCo shall elect
the officers of PublicCo as set forth in Section 2.4, above and PublicCo’s
existing executive officers shall resign.
ARTICLE
VII
Closing
7.1 Closing. The closing of this
Agreement shall be held at the offices of Xxxx X. Agron or at any mutually
agreeable place on or prior to June 18, 2007, unless extended by mutual
agreement. At the closing:
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(a)
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1652437
Ontario Ltd. and Murano shall deliver to PublicCo Ontario Ltd.
(i) copies of Exhibit 1.2
executed by Murano, (ii) an assignment of all of the stock of SystemsCA,
SystemsUS and CapitalCo, (iii) the officer’s certificate described in
Section 5.5, and (iv)signed minutes of 1652437 Ontario
Ltd.’s directors approving this
Agreement.
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(b)
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PublicCo
shall deliver to 1652437 Ontario Ltd. (i) certificates
representing Twenty Six Million, Five Hundred Thousand (26,500,000) shares
of PublicCo’s Common Stock to be transferred to Murano, (ii) the officer’s
certificate described in Section 6.5, (iii) signed minutes of its
directors approving this Agreement, and (iv) resignations of its executive
officers and directors pursuant to Sections 6.7 and 6.8. and the election
of new officers and directors.
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(c)
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PublicCo
shall deliver to Murano (i) certificates representing Three
Million, Two Hundred Fifty Thousand (3,250,000) shares of PublicCo’s
Acquisition Series of Convertible Preferred Stock (to be designated) to be
transferred to Murano, (ii) the officer’s certificate described in Section
6.5, (iii) signed minutes of its directors approving this Agreement, and
(iv) resignations of its executive officers and directors pursuant to
Sections 6.7 and 6.8. and the election of new officers and
directors.
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ARTICLE
VIII
Covenants
Subsequent to the Closing Date
8.1 Registration and Listing . Following the Closing Date,
PublicCo shall:
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(a)
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Continue
PublicCo’s common stock quotation on the Pink Sheets, LLC’s quotation
system; a quote can also be obtained on the Electronic Over-the-Counter
Bulletin Board.
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(b)
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Comply
with the Form 8-K requirements of the Securities Act of 1934, including
the timely preparation and filing of audited financial statements as
required by Form 8-K;
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(c)
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Promptly
retain a qualified investor and public relations firm;
and
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(d)
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Clear
any Rule 144 sales of PublicCo common stock offered by any PublicCo common
stockholder including affiliates or former affiliates of PublicCo within
forty-eight (48) hours of the filing of the Notice of Sale pursuant to
Rule 144.
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ARTICLE
IX
Miscellaneous
9.1 Captions and Headings. The
article and Section headings throughout this Agreement are for convenience and
reference only and shall not define, limit or add to the meaning of any
provision of this Agreement.
9.2 No Oral Change. This Agreement
and any provision hereof may not be waived, changed, modified or discharged
orally, but only by an agreement in writing signed by the party against whom
enforcement of any such waiver, change, modification or discharge is
sought.
9.3 Non-Waiver. The failure of any
party to insist in any one or more cases upon the performance of any of the
provisions, covenants or conditions of this Agreement or to exercise any option
herein contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants or conditions. No waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other subsequent breach.
9.4 Time of Essence. Time is of
the essence of this Agreement and of each and every provision
hereof.
9.5 Entire Agreement. This
Agreement contains the entire Agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings.
9.6 Choice of Law. This Agreement
and its application shall be governed by the laws of the State of
Nevada
9.7 Counterparts. This Agreement
may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
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9.8 Notices All notices, requests,
demands and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given on the date of service if served
personally on the party to whom notice is to be given, or on the third day after
mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly addressed as
follows:
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PublicCo:
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Xxxxx
Xxx International Industries, Inc.
0
Xxxx Xxxx, Xxxx 0
Xxxxxxx,
Xxxxxxx Xxxxxx X0X 0X0
Attn:
Xxxxxx Xxxxxx, Chief Executive Officer
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SystemsCA:
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Xxxxx
Xxx Food Systems, Ltd..
0
Xxxx Xxxx Xxxxxxx,
Xxxxxxx,
Xxxxxx X0X 0X0
Attn: Xxxxxx
Xxxxxx, Chief Executive Officer
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SystemsUS:
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Xxxxx
Xxx Food Systems, Ltd..
0
Xxxx Xxxx Xxxxxxx,
Xxxxxxx,
Xxxxxx X0X 0X0
Attn: Xxxxxx
Xxxxxx, Chief Executive Officer
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CapitalCo:
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Xxxxx
Xxx Food Systems, Ltd..
0
Xxxx Xxxx Xxxxxxx,
Xxxxxxx,
Xxxxxx X0X 0X0
Attn: Xxxxxx
Xxxxxx, Chief Executive Officer
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Mr.
Murano:
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Xx.
Xxxxxx Xxxxxx
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c/o
Xxxxx Xxx Food Systems, Ltd..
0
Xxxx Xxxx Xxxxxxx,
Xxxxxxx,
Xxxxxx X0X 0X0
Attn: Xxxxxx
Xxxxxx, Chief Executive Officer
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With
a copy to:
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Xxxxxxx
X. Xxx
Fox
Law Offices, P.A.
000
Xxxxx Xx., #00 Xxxxxx,
Xxx
Xxxxxxxxx 00000
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9.9
Binding Effect. This
Agreement shall inure to and be binding upon the heirs, executors, personal
representatives, successors and assigns of each of the parties to this
Agreement.
9.10 Mutual Cooperation. The
parties hereto shall cooperate with each other to achieve the purpose of this
Agreement and shall execute such other and further documents and take such other
and further actions as may be necessary or convenient to effect the transaction
described herein.
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9.11 Finders. Northwest Corporate
Services acted as finder for this transaction.
9.12 Announcements. The
parties will consult and cooperate with each other as to the timing and content
of any public announcements regarding this Agreement.
9.13 Expenses. Each party will bear
their own expenses, including legal fees incurred in connection with this
Agreement. Murano shall not be responsible for any costs incurred in
connection with the transaction contemplated by this Agreement.
9.14 Survival of Representations and
Warranties. The representations, warranties, covenants and agreements of
the parties set forth in this Agreement or in any instrument, certificate,
opinion or other writing providing for in it, shall survive the Closing
Date.
9.15 Exhibits. As of the execution
hereof, the parties have provided each other with the exhibits described
herein. Any material changes to the exhibits shall be immediately
disclosed to the other party.
9.16 Termination, Amendment and
Waiver.
(a) Termination. This
Agreement may be terminated at any time prior to the Closing Date, whether
before or after approval of matters presented in connection with the share
exchange by the various stockholders of any party:
(1) By
mutual written consent of all parties;
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(2)
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By
any of 1652437 Ontario Ltd., SystemsCA, SystemsUS, CapitalCo
and Murano or PublicCo;
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(i)
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If
any court of competent jurisdiction or any governmental, administrative or
regulatory authority, agency or body shall have issued an order, decree or
ruling or taken any other action permanently enjoining, restraining or
otherwise prohibiting the transactions contemplated by this Agreement;
or
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(ii)
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If
the transaction shall not have been consummated on or before July 1, 2007,
unless the failure to consummate the transaction is the result of a
material breach of this Agreement by the party seeking to terminate this
Agreement.
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(3) By
PublicCo, if 1652437 Ontario Ltd., SystemsCA, SystemsUS, CapitalCo and Murano
breaches any of its/his representations or warranties hereof or fails to perform
in any material respect any of its covenants, agreements or obligations under
this Agreement; and
20
(4) By
1652437 Ontario Ltd., SystemsCA, SystemsUS, CapitalCo and Murano if
PublicCo breaches any of its representations or warranties hereof or fails to
perform in any material respect any of its covenants, agreements or obligations
under this Agreement.
(b) Effect of
Termination. In the event of termination of this Agreement by
either PublicCo or 1652437 Ontario Ltd., SystemsCA, SystemsUS, CapitalCo and
Murano, as provided herein, this Agreement shall forthwith become void and have
no effect, without any liability or obligation on the part of 1652437 Ontario
Ltd., SystemsCA, SystemsUS, CapitalCo and Murano or PublicCo, and
such termination shall not relieve any party hereto for any intentional breach
prior to such termination by a party hereto of any of its representations or
warranties or any of its covenants or agreements set forth in this
Agreement.
(c) Extension;
Waiver. At any time prior to the Closing Date, the parties
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligation of the other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto or waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part
of a party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure
of any party to this Agreement to assert any of its rights under this Agreement
or otherwise shall not constitute a waiver of such rights.
(d) Procedure for Termination, Amendment,
Extension or Waiver. A termination of this Agreement, an
amendment of this Agreement or an extension or waiver shall, in order to be
effective, require in the case of PrivateCo or PublicCo, action by its
respective Board of Directors or the duly authorized designee of such Board of
Directors.
[Remainder of Page Intentionally
Blank; Signature Page Follows]
21
In
witness whereof, the parties have executed this Agreement concerning the
exchange of securities on the date indicated above.
XXXXX XXX
INTERNATIONAL INDUSTRIES, INC.
By: /s/Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx, Pres.
1652437
ONTARIO LTD.
By: /s/Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx, Pres.
/s/Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx,
individually
B. There
are no management contracts at this time.
C. There
are no other material contracts that need to be included at this
time.
22
