EXHIBIT 2.1
Exchange Agreement by and between OnLine Hearing
and Rompus-BC Effective July 30, 1999
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR
REGISTERED UNDER ANY STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES"
AS THAT TERM IS DEFINED IN RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY
NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH
IS TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made effective as of the 30th day of July, 1999, by and
among Online Hearing Dot Com., Co., a Florida corporation, (the "ISSUER"), and
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, and MLI Group, Inc., ("the Shareholders"), Rompus
CD-Rom Limited, a British Columbia corporation ("Rompus"), and the shareholders
of Rompus (the "Rompus Shareholders". The shareholdes of Rompus are listed in
Schedule A hereto and incorporated herein by this reference.)
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
a.. EXCHANGE OF SECURITIES. Subject to the terms and conditions
of this Agreement, the ISSUER agrees to issue to certain shareholders of
Rompus, as indicated in Schedule A, 4,500,000 shares of the restricted common
stock of ISSUER, $0.0001 par value and to certain shareholders of Rompus, as
indicated in Schedule A, 9,000,000 shares of preferred stock Series A
(collectively referred to as the "Shares"), in exchange for 100% of the
issued and outstanding common shares of Rompus such that Rompus shall become
a wholly owned subsidiary of the ISSUER. As a material inducement to the
transaction, the Shareholders will cancel 9,000,000 shares of its restricted
common stock of the ISSUER. The rights and privileges attached to the
preferred stock issued hereby is contained in the Voting, Support and
Exchange Agreement by and between ISSUER and Rompus of even date herewith,
attached hereto as EXHIBIT "E" and incorporated herein by this reference as
if set forth in full,
b.. REPRESENTATIONS AND WARRANTIES. ISSUER and Shareholders represent
and warrant to Rompus the following:
i. ORGANIZATION. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Florida, and has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Florida. All actions
taken by the Incorporators, directors and shareholders of ISSUER have been
valid and in accordance with the laws of the State of Florida.
ii. CAPITAL. The authorized capital stock of ISSUER consists of
80,000,000 shares of common stock, $0.001 par value, of which 16,601,573 shares
are issued and outstanding. The authorized capital stock of ISSUER also consists
of 20,000,000 shares of preferred stock, $.0001 par value, of which no shares
are issued or outstanding. All outstanding shares are fully paid and non
assessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not a party to this Agreement. At closing, there will
be no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating ISSUER to issue or to
transfer from treasury any additional shares of its capital stock. None of the
outstanding shares of ISSUER are subject to any stock restriction agreements.
All of the shareholders of ISSUER have valid title to such shares and acquired
their shares in a
lawful transaction and in accordance with the laws of Florida. A full and
complete list of all the stockholders of ISSUER is attached hereto as EXHIBIT
"A". An opinion of counsel for ISSUER regarding the tradeability of the
free trading stock is attached hereto as EXHIBIT "B"
iii. OTC BULLETIN BOARD LISTING. The Company is currently
listed on the OTC Electronic Bulletin Board with the following trading
symbol: ONLH.
(1) FINANCIAL STATEMENTS. The audited Financial
Statements of the ISSUER as of December 31, 1998, and the related statements
of income and retained earnings for the period then ended have been prepared
in accordance with generally accepted accounting principles consistently
followed by ISSUER throughout the periods indicated, and fairly present the
financial position of ISSUER as of the date of the financial statements. The
audited financial statements are attached hereto as EXHIBIT "C".
iv. ABSENCE OF CHANGES. Since the date of the financial
statements, there has not been any change in the financial condition or
operations of ISSUER, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
v. LIABILITIES. ISSUER does not have any debt, liability,
or obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected on the
ISSUERS' financial statement. ISSUER is not aware of any pending, threatened
or asserted claims, lawsuits or contingencies involving ISSUER or its common
stock. There is no dispute of any kind between ISSUER and any third party,
and no such dispute will exist at the closing of this Agreement. At closing,
ISSUER will be free from any and all liabilities, liens, claims and/or
commitments. Provided, however, the ISSUER is subject to certain UCC liens
on its assets as indicated in EXHIBIT "D" hereto. ISSUER undertakes to
satisfy or remove such liens as a condition precedent to closing.
(1) ABILITY TO CARRY OUT OBLIGATIONS. ISSUER has
the right, power, and authority to enter into and perform its obligations
under this Agreement. The execution and delivery of this Agreement by ISSUER
and the performance by ISSUER of its obligations hereunder will not cause,
constitute, or conflict with or result in (a) any breach or violation or any
of the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which ISSUER or its shareholders are a party, or
by which they may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (b) an event that would cause
ISSUER to be liable to any party, or (c) an event that would result in the
creation or imposition or any lien, charge or encumbrance on any asset of
ISSUER or upon the securities of ISSUER to be acquired by SHAREHOLDERS.
(2) FULL DISCLOSURE. None of representations and
warranties made by the ISSUER, or in any certificate or memorandum furnished or
to be furnished by the ISSUER, contains or will contain any untrue statement of
a material fact, or omit any material fact the omission of which would be
misleading.
(3) CONTRACT AND LEASES. ISSUER is not currently
carrying on any business and is not a party to any contract, agreement or
lease. No person holds a power of attorney from ISSUER.
vi. COMPLIANCE WITH LAWS. To the best of its knowledge,
ISSUER has complied with, and is not in violation of any federal, state, or
local statute, law, and/or regulation.
vii. LITIGATION. ISSUER is not (and has not been) a party to
any suit, action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the
best knowledge of the ISSUER, there is no basis for any such action or
proceeding and no such action or proceeding is threatened against ISSUER and
ISSUER is not subject to or in default with respect to any order, writ,
injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality.
viii. CONDUCT OF BUSINESS. Prior to the closing, ISSUER shall
conduct its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any liabilities,
(5) acquire or dispose of any assets, enter into any contract, guarantee
obligations of any third party, or (6) enter into any other transaction.
ix. CORPORATE DOCUMENTS. Copies of each of the following
documents, which are true complete and correct in all material respects, will be
attached to and made a part of this Agreement:
(a) Articles of Incorporation;
(b) Bylaws;
(1) Minutes of Shareholders Meetings;
(2) Minutes of Directors Meetings;
(a) List of Officers and Directors;
(3) Audited Financial Statements of the Company dated
December 31, 1998 statements described in Section
2(iii);
(4) Stock register and stock records of ISSUER and a
current, accurate list of ISSUER's shareholders.
x. DOCUMENTS. All minutes, consents or other documents
pertaining to ISSUER to be delivered at closing shall be valid and in
accordance with the laws of Florida.
xi. TITLE. The Shares to be issued pursuant to this Agreement
will be, at closing, free and clear of all liens, security interests, pledges,
charges, claims, encumbrances and restrictions of any kind. None of such Shares
are or will be subject to any voting trust or agreement. No person holds or has
the right to receive any proxy or similar instrument with respect to such
shares, except as provided in this Agreement, the ISSUER is not a party to any
agreement which offers or grants to any person the right to purchase or acquire
any of the securities to be issued pursuant to this Agreement. There is no
applicable local, state or federal law, rule, regulation, or decree which
would, as a result of the issuance of the Shares, impair, restrict or delay any
voting rights with respect to the Shares.
xii. COUNSEL. ISSUER represents and warrants that prior to
Closing, it has been represented by independent counsel.
c.. Rompus represents and warrants to ISSUER the following:
i. ORGANIZATION. Rompus is a company duly organized, validly
existing, and in good standing under the laws of British Columbia, Canada and
has all necessary corporate powers to own properties and carry on a business,
and is duly qualified to do business and is in good standing in British
Columbia. All actions taken by the Incorporators, directors and shareholders of
Rompus have been valid and in accordance with the laws of British Columbia.
ii. COUNSEL. Rompus represents and warrants that prior to
Closing, it has been represented by independent counsel.
d.. INVESTMENT INTENT. Rompus is acquiring the Shares for its own
account for purposes of investment and without expectation, desire, or need for
resale and not with the view toward distribution, resale, subdivision, or
fractionalization of the Shares.
e.. CLOSING. The closing of this transaction shall take place at
the law offices of Xxxxxxx & Beam, Two Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000. Unless the closing of this transaction takes place on or
before July 30, 1999, then either party may terminate this Agreement.
f.. DOCUMENTS TO BE DELIVERED AT CLOSING.
(1) By the ISSUER
(2) Board of Directors Minutes authorizing the issuance
of a certificate or certificates for the 13,500,000 shares to be issued pursuant
to this Agreement.
(3) Instructions to the ISSUER's transfer agent to cancel
9,000,000 shares of Shareholders' restricted common stock of the ISSUER.
(4) The resignation of the current officers and directors
of ISSUER.
(5) A Board of Directors resolution appointing Xxxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, and Xxxxx Xxxxx as
directors of ISSUER.
(6) Audited financial statements of ISSUER for the period
ending December 31, 1998.
(7) The opinion of counsel for the ISSUER as to the
tradeability of the free trading stock
(8) All of the business and corporate records of ISSUER,
including but not limited to correspondence files, bank statements, checkbooks,
savings account books, minutes of shareholder and directors meetings, financial
statements, shareholder listings, stock transfer records, agreements and
contracts.
i.. ROMPUS
(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding common stock of
Rompus.
(2) Board of directors and Shareholders resolutions
authorizing the transactions contained herein.
g.. MISCELLANEOUS.
i. CAPTIONS AND HEADINGS. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
ii. 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 waiver,
change, modification, or discharge is sought.
iii. CHOICE OF LAW. This Agreement shall be exclusively governed
by and construed in accordance with the laws of the State of Florida, If any
action is brought among the parties with respect to this Agreement or otherwise,
by way of a claim or counterclaim, the parties agree that in any such action,
and on all issues, the parties irrevocably waive their right to a trial by jury.
Exclusive jurisdiction and venue for any such action shall be the State Courts
of Miami-Dade County, Florida. In the event suit or
action is brought by any party under this Agreement to enforce any of its
terms, or in any appeal therefrom, it is agreed that the prevailing party
shall be entitled to reasonable attorneys fees to be fixed by the arbitrator,
trial court, and/or appellate court.
iv. NON WAIVER. Except as otherwise expressly provided
herein, no waiver of any covenant, condition, or provision of this Agreement
shall be deemed to have been made unless expressly in writing and signed by
the party against whom such waiver is charged; and (I) the failure of any
party to insist in any one or more cases upon the performance of any of the
provisions, covenants, or conditions of this Agreement or to exercise any
option herein contained shall not be construed as a waiver or relinquishment
for the future of any such provisions, covenants, or conditions, (ii) the
acceptance of performance of anything required by this Agreement to be
performed with knowledge of the breach or failure of a covenant, condition,
or provision hereof shall not be deemed a waiver of such breach or failure,
and (iii) no waiver by any party of one breach by another party shall be
construed as a waiver with respect to any other or subsequent breach.
v. TIME OF ESSENCE. Time is of the essence of this Agreement
and of each and every provision hereof.
vi. ENTIRE AGREEMENT. This Agreement contains the entire
Agreement and understanding between the parties hereto, and supersedes all
prior agreements and understandings.
vii. 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.
viii. 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, and by fax, as follows:
ISSUER: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
and Shareholders Toronto, Ontario
M4G 1B5 Canada
Rompus: Rompus CD-Rom Production, Ltd.
000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000X
Xxxxxxx, Xxxxxxx
X0X 0X0 Xxxxxx
Copy to: Xxxxx X.X. XxXxxxxxx, Esquire
Xxxxxxx and Beam
0 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx XX 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement effective
July 30, 1999.
ONLINE HEARING DOT COM, CO. ROMPUS CD-ROM PRODUCTION LTD.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxx
----------------------- --------------------------
Xxxxx Xxxxx
Its: President Its: Chief Executive Officer
SHAREHOLDERS
By: /s/ Xxxxxxx Xxxxxx
-----------------------
Xxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxx
-----------------------
Xxxxx Xxxxx
MLI GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Its: President
EXHIBIT "A"
SHAREHOLDER LIST
EXHIBIT "B"
OPINION OF COUNSEL
EXHIBIT "C"
AUDITED FINANCIAL STATEMENTS
SCHEDULE "A"
SHAREHOLDERS OF ROMPUS
Shareholders to receive Common Stock
Shareholders to receive Preferred Stock
EXHIBIT "D"
UCC LIENS
EXHIBIT "E"
VOTING, SUPPORT AND EXCHANGE AGREEMENT
