ACQUISITION AGREEMENT BETWEEN Axis Labs, Inc., The Axis Group, LLC,
Exhibit
2.1
ACQUISITION AGREEMENT
BETWEEN
Axis
Labs, Inc., The Axis Group, LLC,
F.
Xxxxxx
XxXxxxxx, Xxxxx Xxxxxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxxxx,
AND
Nexia
Holdings, Inc.
1
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TABLE
OF CONTENTS
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Purchase
and Sale
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2
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Purchase
Price
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2
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Warranties
and Representations of Axis Labs, Inc. and Shareholders
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2
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Warranties
and Representations of Nexia Holdings, Inc.
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4
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Term
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5
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The
Shares
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5
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Conditions
Precedent to Closing
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6
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Termination
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6
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Exhibits
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7
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Miscellaneous
Provisions
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7
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Closing
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7
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Governing
Law
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7
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Counterparts
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7
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2
THIS
ACQUISITION AGREEMENT dated
August 26, 2005, by, between and among Axis Labs, Inc., a Utah Corporation
(“Axis”), The Axis Group, LLC, Xxxx Xxxxxxx, Xxxx Xxxxxxxx, F. Xxxxxx XxXxxxxx,
and Xxxxx Xxxxxxxxxx, (jointly hereinafter the “Shareholders”) and Nexia
Holdings, Inc., a Nevada, (“Purchaser”).
WHEREAS,
Purchaser desires to acquire through the delivery of One Hundred Sixty Five
Thousand (165,000) shares of Class C preferred stock in Nexia; and
WHEREAS,
Axis and
Shareholders desire to sell and Purchaser desires to purchase a controlling
number of shares of Axis common stock on the terms and conditions set forth
herein;
NOW,
THEREFORE,
in
consideration of the mutual covenants, agreements, representations, and
warranties herein contained, the parties hereby agree as follows:
| I. |
Purchase
and Sale.
Shareholders hereby agree to sell, transfer, assign, and convey to
Purchaser, and Purchaser hereby agrees to purchase and acquire from
Shareholders, Seven Million Nine Hundred Eight Four Thousand (7,984,000)
shares of common stock in Axis.
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These
shares and interests shall hereinafter be referred to as “The Transfer
Shares”.
| II. |
Purchase
Price. The
aggregate purchase price to be paid to the Shareholders for their
shares
of The Transfer Shares shall be
One Hundred Sixty Five Thousand (165,000) shares
of Class C Preferred Stock of Nexia Holdings, Inc. which shall be
delivered to Shareholders on a pro-rata basis, based upon their respective
share ownership of Axis, at the time of
closing.
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| III. |
Warranties
and Representations of Axis and Shareholders.
In order to induce Purchaser to enter into the Agreement and to complete
the transaction contemplated hereby, Axis and Shareholders warrant
and
represent to Purchaser that:
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| A. |
Organization
and Standing.
Axis Labs, Inc. is a corporation duly organized, validly existing,
and in
good standing under the laws of the State of Utah, is qualified to
do
business as a foreign corporation in every other state or jurisdiction
in
which it operates to the extent required by the laws of such states
and
jurisdictions, and have full power and authority to carry on its
business
as now conducted and to own and operate its assets, properties, and
business No changes to Axis’ Certificate of Incorporation, amendments
thereto and By laws of Axis will be made before the Closing. Axis
is
authorized to issue 80,000,000 shares of its common stock of which
7,984,000 shares are issued and
outstanding.
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| B. |
Taxes.
Axis will bring current all federal, state, and local income or other
tax
returns and reports that it is required to file with all governmental
agencies, wherever situate, and will pay or has paid or accrued for
payment all taxes as shown on such returns, such that a failure to
file,
pay, or accrue will not have a material adverse effect on
Purchaser.
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| C. |
Pending
Actions.
There are no material legal actions, lawsuits, proceedings or
investigations, either administrative or judicial, pending or to
the
knowledge of Axis or the Shareholders threatened, against or affecting
Axis, except as disclosed in writing to Purchaser. Axis is not in
violation of any law, material ordinance, or regulation of any kind
whatever, including, but not limited to laws, rules and regulations
governing the sale of its products, the ‘33 Act, the Securities Exchange
Act of 1934, as amended (the “34 Act”) the Rules and Regulations of the
U.S. Securities and Exchange Commission (”SEC”), or the Securities Laws
and Regulations of any state.
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3
| D. |
Governmental
Regulation.
Axis holds the patents, licenses and registrations set forth on Exhibit
“A” hereto from the jurisdictions set forth therein, which patents,
licenses and registrations are all of the patents, licenses and
registrations necessary to permit the Corporation to conduct its
current
and planned business. All of such patents, licenses and registrations
are
in full force and effect, and there are no proceedings, hearings,
or other
actions pending that may affect the validity or continuation of any
of
them. No approval of any other trade or professional association
or agency
of government other than as set forth on Exhibit “A” is required for any
of the transactions effected by this Agreement, and the completion
of the
transactions contemplated by the Agreement will not, in and of themselves,
affect or jeopardize the validity or continuation of any of
them.
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| E. |
Ownership
of Shares.
The Shareholders have good, marketable title, without any liens or
encumbrances of any nature whatever, to The Transfer Shares to be
transferred to Purchaser.
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| F. |
Corporate
Records.
All of Axis’ books and records, including, without limitation, its books
of account, corporate records, minute book, stock certificate books
and
other records of Axis are up-to-date, complete and reflect accurately
and
fairly the conduct of its business in all material respects since
its date
of incorporation.
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| G. |
No
Misleading Statements or Omissions.
Neither the Agreement nor any financial statement, exhibit, schedule
or
document attached hereto or presented to Purchaser in connection
herewith,
contains any materially misleading statement, or omits any fact or
statement necessary to make the other statements or facts therein
set
forth not materially misleading.
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| H. |
Validity
of the Agreement.
All corporate and other proceedings required to be taken by Axis
and/or
the Shareholders in order to enter into and to carry out the Agreement
have been duly and properly taken. The Agreement has been duly executed
by
an officer of Axis and constitutes the valid and binding obligation
of
Axis, except to the extent limited by applicable bankruptcy,
reorganization, insolvency, moratorium, or other laws relating to
or
affecting generally the enforcement of creditors’ rights. The execution
and delivery of the Agreement, and the carrying out of its purposes,
will
not result in the breach of any of the terms or conditions of, or
constitute a default under or violate Axis’ Certificate of Incorporation
or document of undertaking, oral or written, to which Axis or the
Shareholders are a party or is bound or may be affected, nor will
such
execution, delivery and carrying out violate any order, writ, injunction,
decree, law, rule, or regulation of any court, regulatory agency
or other
governmental body; and the business now conducted by Axis can continue
to
be so conducted after completion of the transaction contemplated
hereby.
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| I. |
Enforceability
of the Agreement.
When duly executed and delivered, the Agreement and the Exhibits
hereto
which are incorporated herein, and made a part hereof, are legal,
valid,
and enforceable by Purchaser, Axis and Shareholders according to
their
terms, except to the extent limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws relating to
or
affecting generally the enforcement of creditors rights and that
at the
time of such execution and delivery, Purchaser will have acquired
title in
and to The Transfer Shares free and clear of all claims, liens, and
encumbrances.
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| J. |
Access
to Books and Records.
Purchaser has been granted full and free access to the books of Axis
during the course of this transaction prior to
Closing.
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| K. |
Axis’
Current Officers.
Xxxxx X. Xxxxxxx currently serves as the President of Axis, Xxxx
Xxxxx
serves as a Vice President and Secretary of Axis, Xxxx Xxxxxxx serves
as
the secretary of Axia, Xxxx Xxxxxxxx serves as a Vice President there
are
no other officers currently serving.
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4
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L.
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Axis’
Financial Statements.
Axis’ current Balance Sheet and Profit and Loss statement are attached
hereto as Exhibit “B”, accurately describe Axis’ financial position as of
the dates thereof, in accordance with applicable legal and accounting
requirements. The debts and obligations of Axis are as set forth
in
Exhibit “B” attached hereto. All debts and obligations of Axis shall not
exceed the sum of $50,000 at the time of execution
hereof.
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IV.
Warranties
and Representations of Purchaser.
In order
to induce Axis and Shareholders to enter into the Agreement and to complete
the
transaction contemplated hereby, Purchaser warrants and represents to Axis
and
Shareholders that:
| A. |
Organization
and Standing.
Purchaser is a corporation duly organized, validly existing and in
good
standing under the laws of the state of Nevada, is qualified to do
business as a foreign corporation in every other state in which it
operates to the extent required by the laws of such states, and has
full
power and authority to carry on its business as now conducted and
to own
and operate its assets, properties, and
business.
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| B. |
No
Pending Actions.
There are no legal actions, lawsuits, proceedings or investigations,
either administrative or judicial, pending or threatened, against
or
affecting Purchaser, or against any of Purchaser’s officers or directors
and arising out of their operation of Purchaser, except as set forth
in
its financial statements or SEC filings. Purchaser has been in compliance
with, and has not received notice of violation of any law, ordinance,
or
regulation of any kind whatever, including, but not limited to, the
‘33
Act, the ‘34 Act, the Rules and Regulations of the SEC or the Securities
Laws and Regulations of any state.
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| C. |
Corporate
Records.
All of Purchaser’s books and records, including without limitation, its
book of account, corporate records, minute book, stock certificate
books
and other records are up-to-date, complete, and reflect accurately
and
fairly the conduct of its business in all respects since its date
of
incorporation.
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| D. |
No
Misleading Statements or Omissions.
Neither the Agreement nor any financial statement, exhibit, schedule,
or
document attached hereto or presented to Axis or Shareholders in
connection herewith contains any materially misleading statement,
or omits
any fact or statement necessary to make the other statements of facts
therein set forth not materially
misleading.
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| E. |
Validity
of the Agreement.
All corporate action and proceedings required to be taken by Purchaser
in
order to enter into and to carry out the Agreement have been duly
and
properly taken. The Agreement has been duly executed by Purchaser,
and
constitutes a valid and binding obligation of Purchaser. The execution
and
delivery of the Agreement and the carrying out of its purposes will
not
result in the breach of any of the terms or conditions of, or constitute
a
default under or violate, Purchaser’s Certificate of Incorporation or
By-Laws, or any agreement, lease, mortgage, bond, indenture, license
or
other document or undertaking, oral or written, to which Purchaser
is a
party or is bound or may be affected, nor will such execution, delivery
and carrying out violate any order, writ, injunction, decree, law,
rule or
regulation of any court regulatory agency or other governmental
body.
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| F. |
Enforceability
of the Agreement.
When duly executed and delivered, the Agreement and the Exhibits
hereto
which are incorporated herein and made a part hereof are legal, valid,
and
enforceable by Axis and Shareholders according to their terms, and
that at
the time of such execution and delivery, Purchaser will have acquired
good, marketable title in and to The Transfer Share acquired pursuant
hereto, free and clear of all liens and
encumbrances
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5
V.
Term. All
representations, warranties, covenants and agreements made herein and in the
exhibits attached hereto shall survive the execution and delivery of the
Agreement and payment pursuant thereto.
VI.
The
Shares.
All of
the herein referenced common shares and preferred shares shall be validly
issued, fully-paid and non-assessable shares of the respective corporate
issuers, with full voting rights, dividend rights, and the right to receive
the
proceeds of liquidation, if any, as set forth in each corporation’s Articles of
Incorporation and the designation of rights of the preferred shares. The parties
hereto hereby contract and agree that the Shares, Series C Preferred Stock
delivered to the Shareholders shall not be converted into shares of the common
stock of Purchaser until either 24 months from the execution hereof or until
after Axis has raised One Million Five Hundred Thousand dollars ($1,500,000)
in
capital funds for its operations, whichever happens first.
VII.
Conditions
Precedent to Closing.
| A. |
The
obligations of Axis and Shareholders under the Agreement shall be
and are
subject to fulfillment, prior to or at the Closing of each of the
following conditions:
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| 1. |
That
Purchaser and it’s management’s representations and warranties contained
herein shall be true and correct at the time of closing date as if
such
representations and warranties were made at such
time;
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| 2. |
That
Purchaser and its management shall have performed or complied with
all
agreements, terms and conditions required by the Agreement to be
performed
or complied with by them prior to or at the time of
Closing;
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| B. |
The
obligations of Purchaser under the Agreement shall be and are subject
to
fulfillment, prior to, at the Closing or subsequent to the Closing
of each
of the following conditions:
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| 1. |
That
Axis and Shareholder’s representations and warranties contained herein
shall be true and correct at the time of Closing as if such
representations and warranties were made at such time; and
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| 2. |
That
Axis and Shareholders shall have performed or complied with all
agreements, terms and conditions required by the Agreement to be
performed
or complied with by it prior to or at the time of
Closing.
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| C. |
Appointment
of Escrow Holder: The parties hereby appoint .
as the Escrow Holder for this
Agreement:
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| 1. |
Upon
or prior to the closing of this Agreement Axis and Shareholders shall
deliver to the Escrow Holder, share certificates for the Transfer
Shares
along with the Medallion Signature Guarantees of the named holders
of the
certificates.
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| 2. |
Upon
or prior to the closing of this Agreement, Purchaser shall deliver
to the
Escrow Holder share certificates representing the purchase price
of the
Transfer Shares.
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| 3. |
Upon
receipt of the Transfer Shares and the three hundred thousand shares
of
Series C Preferred Shares of Nexia Holdings, Inc., the Escrow Holder
shall
release the funds and the Transfer Assets to the proper parties.
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VIII.
Termination.
The
Agreement may be terminated at any time before or; at Closing, by:
A. The
mutual agreement of the parties;
B. Any
party
if:
| 1. |
Any
provision of the Agreement applicable to a party shall be materially
untrue or fail to be accomplished.
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| 2. |
Any
legal proceeding shall have been instituted or shall be imminently
threatening to delay, restrain or prevent the consummation of the
Agreement.
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Upon
termination of the Agreement for any reason, in accordance with the terms and
conditions set forth in this paragraph, each said party shall bear all costs
and
expenses as each party has incurred and no party shall be liable to the
other.
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IX
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Exhibits.
All Exhibits attached hereto are incorporated herein by this reference
as
if they were set forth in their
entirety.
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X
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Miscellaneous
Provisions.
This Agreement is the entire agreement between the parties in respect
of
the subject matter hereof, and there are no other agreements, written
or
oral, nor may the Agreement be modified except in writing and executed
by
all of the parties hereto. The failure to insist upon strict compliance
with any of the terms, covenants or conditions of the Agreement shall
not
be deemed a waiver or relinquishment of such right or power at any
other
time or times.
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XI
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Closing.
The closing of the transactions contemplated by the Agreement shall
take
place on or before 5:00 P.M. on September 30, 2005. The Closing shall
occur at the offices of Nexia located at 59 West 000 Xxxxx, Xxxxxx
Xxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000 or such other date and place as the parties
hereto shall agree upon. At the Closing, all of the documents, payments
and items referred to herein shall be
exchanged.
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XII
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Governing
Law.
The Agreement shall be governed by and construed in accordance with
the
internal laws of the State of Utah.
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XIII
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Counterparts.
The Agreement may be executed in duplicate facsimile counterparts,
each of
which shall be deemed an original and together shall constitute one
and
the same binding Agreement, with one counterpart being delivered
to each
party hereto.
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IN
WITNESS WHEREOF, the parties hereto have set
their
hands and seals as of the date and year above first written.
| Nexia Holdings, Inc. | Axis Labs, Inc. | ||
| /s/ Xxxxxxx Xxxxxx | /s/ Xxxxx X. Xxxxxxx | ||
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Xxxxxxx Xxxxxx President
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Xxxxx
X. Xxxxxxx
President
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Shareholders:
The
Axis
Group, LLC
by:
/s/
Xxxx Xxxxx, GVP
Xxxx
Xxxxxxx,
/s/
Xxxx Xxxxxxx
Xxxx
Xxxxxxxx,
/s/
Xxxx Xxxxxxxx .
F.
Xxxxxx
XxXxxxxx,
/s/
F. Xxxxxx XxXxxxxx .
Xxxxx
Xxxxxxxxxx
/s/
Xxxxx Xxxxxxxxxx .
8
