BY WHICH
Exhibit 10.1
PLAN
OF EXCHANGE
BY
WHICH
(a
Delaware corporation)
SHALL
ACQUIRE
Endeavour
Logistics Pty Ltd.
(a corporation organized under the
laws of Australia)
ADJUSTMENTS:
lead This
Plan of Exchange (the “Agreement” or “Plan of Exchange”)
is made and dated as of this 22th day of June, 2009, and is intended to
supersede all previous ELP or written agreements, if any, between the parties,
with respect to its subject matter. This Agreement anticipates that extensive
due diligence shall have been performed by both parties. All due diligence shall
have been completed by the Parties no later than June 22, 2009.
I.
RECITALS
1.
The Parties to this Agreement:
(1.1) Roadships Holdings, Inc. ("RDSH
"), a Delaware corporation.
(1.2) Endeavour
Logistics Pty
Ltd.,
a corporation organized under the laws of Australia (“ELP”). ELP’s corporate id number
is 000000000.
2.
The Capital of the Parties:
(2.1)
The Capital of RDSH
consists of 1,000,000,000 authorized shares of Common Stock, par value $0.001 of
which 106,197,430 shares are issued and outstanding.
(2.2) The Capital of ELP consists
of 500 Ordinary Shares issued pursuant to Australian law which for the purposes
of this agreement shall be referred to as common stock.
3. Transaction Descriptive Summary:
RDSH desires to acquire 100% of the issued and outstanding Ordinary
Shares of ELP and the shareholders of ELP (the “ELP Shareholders”) desire that
ELP be acquired by RDSH. Pursuant to this Agreement RDSH shall
acquire 500 shares of ELP in exchange for a new issuance of 500 shares of RDSH
to the ELP shareholders which will give ELP an interest in RDSH representing
approximately less than 1% of the then issued and outstanding shares of RDSH on
a fully diluted basis. This transaction will not close immediately
but shall be conditioned on approval by the board of RDSH and ELP
respectively. The parties intend that the transactions qualify and
meet the Internal Revenue Code requirements for a tax free reorganization, in
which there is no corporate gain or loss recognized by the parties, with
reference to Internal Revenue Code (IRC) sections 354 and 368.
4. SEC compliance. RDSH shall
cause the filing with the Commission of a Current Report on Form 8-K, within
four business days of the date hereof, reporting the execution of this
Agreement.
5. Delaware compliance. Articles
of Exchange are required to be filed by Delaware law as the last act
to make the plan of exchange final and effective under Delaware
law.
6. Audited Financial
Statements. Certain filings under the Securities Exchange Act of 1934,
such as a Current Report on Form 8-K, require audited financial statements of
ELP to be filed with the SEC within 71 days of the initial Form 8-K filing with
respect to this transaction. In connection with RDSH’s filing of a
Current Report on Form 8-K/A within 71 days after the closing, as it relates to
this transaction, audited financial statements of ELP will be filed with the SEC
in accordance with Form 8-K. ELP has agreed to provide audited
financial statements prepared in conformity with U.S. GAAP to RDSH at or prior
to closing.
II. PLAN OF EXCHANGE
1.
Conditions Precedent to Closing.
The
obligation of the parties to consummate the transactions contemplated herein are
subject to the fulfillment or waiver prior to the closing of the following
conditions precedent:
(1.1) Shareholder Approval. ELP
and RDSH shall have secured their shareholder approvals for this transaction, if
required, in accordance with the laws of its place of incorporation and its
constituent documents.
(1.2) Board of Directors. The
Boards of Directors of each of ELP and RDSH shall have approved the transaction
and this agreement, in accordance with the laws of its place of incorporation
and its constituent documents.
(1.3) Due Diligence Investigation.
Each party shall have furnished to the other party all corporate and financial
information which is customary and reasonable, to conduct its respective due
diligence, normal for this kind of transaction. If either party determines that
there is a reason not to complete the Plan of Exchange as a result of their due
diligence examination, then they must give written notice to the other party
prior to the expiration of the due diligence examination period. The due
diligence period, for purposes of this paragraph, shall have expired on June 22,
2009. The Closing Date shall be three days after the satisfaction or
waiver of all of the conditions precedent to closing set forth in this Plan of
Exchange, unless extended to a later date by mutual agreement of the
parties.
(1.4) The rights of dissenting
shareholders, if any, of each party shall have been satisfied and the
Board of Directors of each party shall have determined to proceed with the Plan
of exchange.
(1.5) All of the terms, covenants and
conditions of the Plan of exchange to be complied with or performed by
each party before Closing shall have been complied with, performed or waived in
writing;
(1.6) Delivery of
Audited Financial Statements. ELP shall have delivered
to RDSH audited financial statements and an audit report thereon for the year
ended December 31, 2008, and interm financials for the period ending June 30,
2008 any required audits shall be prepared by a PCAOB member audit firm in
accordance with U.S. GAAP at ELP’s expense.
2.
Conditions Concurrent and Subsequent to Closing.
(2.1) Delivery of Registered Capital of
ELP. Immediately upon or within 30 days from the date of this
agreement, RDSH shall have 100% of the beneficial interest of Endeavour
Logistics Pty
Ltd.
(2.2) Acquisition Share Issuance.
Immediately upon the Closing, RDSH shall issue to the ELP Shareholders
500 new investment shares of Common Stock of RDSH to the ELP Shareholders in
exchange for 100% of the capital stock of ELP, which will give ELP an
interest in RDSH representing less than 1% of the then issued and outstanding
shares on a fully diluted basis.
3.
Plan of Exchange
(3.1) Exchange and Reorganization:
RDSH and ELP
shall be hereby reorganized, such that RDSH shall acquire 100% the capital stock
of ELP, and ELP shall become a wholly-owned subsidiary of RDSH.
(3.2) Issuance of Common Stock:
Within 60 days upon the effective date of the Plan of Exchange, RDSH shall issue
500 new investment shares of Common Stock of RDSH to or for the ELP
Shareholders.
(3.3) Closing/Effective Date:
The Plan of exchange shall become effective immediately upon approval and
adoption by the parties hereto, in the manner provided by the law of the places
of incorporation and constituent corporate documents, and upon compliance with
governmental filing requirements, such as, without limitation, filings under the
Securities Exchange Act of 1934, and the filing of Articles of Exchange, if
applicable under State Law. Closing shall occur upon the approval by the Board
of Directors of the parties hereto or are waived by the parties.
(3.4) Surviving Corporations:
Both corporations shall survive the exchange and reorganization herein
contemplated and shall continue to be governed by the laws of its respective
jurisdiction of incorporation.
(3.5) Rights of Dissenting
Shareholders: Each Party is the entity responsible for the rights of its
own dissenting shareholders, if any.
(3.6) Service of Process and Address:
Each corporation shall continue to be amenable to service of process in
its own jurisdiction, exactly as before this acquisition.
The
address of ELP will be changed, according to the instruction of
RDSH.
(3.7) Surviving Articles of
Incorporation: the Articles of Incorporation of each Corporation shall
remain in full force and effect, unchanged.
(3.8) Surviving By-Laws: the
By-Laws of each Corporation shall remain in full force and effect,
unchanged.
(3.9) Further Assurance, Good Faith and
Fair Dealing: the Directors of each Company shall execute and deliver any
and all necessary documents, acknowledgments and surances and do all things
proper to confirm or acknowledge any and all rights, titles and interests
created or confirmed herein; and both companies covenant expressly hereby to
deal fairly and in good faith with each other and each others shareholders. In
furtherance of the parties desire, as so expressed, and to encourage timely,
effective and businesslike resolution the parties agree that any dispute arising
between them, capable of resolution by arbitration, shall be submitted to
binding arbitration. As a further incentive to private resolution of any
dispute, the parties agree that each party shall bear its own costs of dispute
resolution and shall not recover such costs from any other party.
(3.10) General Mutual Representations
and Warranties. The purpose and general import of the Mutual
Representations and Warranties, are that each party has made appropriate full
disclosure to the others, that no material information has been withheld, and
that the information exchanged is accurate, true and correct. These warranties
and representations are made by each party to the other, unless otherwise
provided in this agreement, and they speak and shall be true immediately before
Closing.
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(3.10.1) Organization and
Qualification. Each corporation is duly organized and in good
standing, and is duly qualified to conduct any business it may be
conducting, as required by law or local
ordinance.
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(3.10.2) Corporate Authority.
Each corporation has corporate authority, under the laws of its
jurisdiction and its constituent documents, to do each and every element
of performance to which it has agreed, and which is reasonably necessary,
appropriate and lawful, to carry out this Agreement in good
faith.
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(3.10.3) Ownership of Assets and
Property. Each corporation has lawful title and ownership of it
property as reported to the other, and as disclosed in its financial
statements.
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(3.10.4) Absence of Certain Changes or
Events. Each corporation has not had any material changes of
circumstances or events which have not been fully disclosed to the other
party, and which, if different than previously disclosed in writing, have
been disclosed in writing as currently as is reasonably
practicable. Specifically, and without
limitation:
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(3.10.4-a) the business of each
corporation shall be conducted only in the ordinary and usual course and
consistent with its past practice, and neither party shall purchase or
sell (or enter into any agreement to so purchase or sell) any properties
or assets or make any other changes in its operations, respectively, taken
as a whole, or provide for the issuance of, agreement to issue or grant of
options to acquire any shares, whether common, redeemable common or
convertible preferred, in connection
therewith;
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(3.10.4-b) Except as set forth in
this Plan of Exchange, neither corporation shall (i) amend its Articles of
Incorporation or By-Laws, (ii) change the number of authorized or
outstanding shares of its capital stock, or (iii) declare, set aside or
pay any dividend or other distribution or payment in cash, stock or
property to the extent that which might contradict or not comply with any
clause or condition set forth in this Plan of
Exchange;
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(3.10.4-c) Neither corporation
shall (i) issue, grant or pledge or agree or propose to issue, grant, sell
or pledge any shares of, or rights of any kind to acquire any shares of,
its capital stock, (ii) incur any indebtedness other than in the ordinary
course of business, (iii) acquire directly or indirectly by redemption or
otherwise any shares of its capital stock of any class or (iv) enter into
or modify any contact, agreement, commitment or arrangement with respect
to any of the foregoing;
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(3.10.4-d) Except in the ordinary
course of business, neither party shall (i) increase the compensation
payable or to become payable by it to any of its officers or directors;
(ii) make any payment or provision with respect to any bonus, profit
sharing, stock option, stock purchase, employee stock ownership, pension,
retirement, deferred compensation, employment or other payment plan,
agreement or arrangement for the benefit of its employees (iii) grant any
stock options or stock appreciation rights or permit the exercise of any
stock appreciation right where the exercise of such right is subject to
its discretion (iv) make any change in the compensation to be received by
any of its officers; or adopt, or amend to increase compensation or
benefits payable under, any collective bargaining, bonus, profit sharing,
compensation, stock option, pension, retirement, deferred compensation,
employment, termination or severance or other plan, agreement, trust, fund
or arrangement for the benefit of employees, (v) enter into any agreement
with respect to termination or severance pay, or any employment agreement
or other contract or arrangement with any officer or director or employee,
respectively, with respect to the performance or personal services that is
not terminable without liability by it on thirty days notice or less, (vi)
increase benefits payable under its current severance or termination, pay
agreements or policies or (vii) make any loan or advance to, or enter into
any written contract, lease or commitment with, any of its officers or
directors;
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(3.10.4-e) Neither party shall
assume, guarantee, endorse or otherwise become responsible for the
obligations of any other individual, firm or corporation or make any loans
or advances to any individual, firm or corporation, other than obligations
and liabilities expressly assumed by the other that
party;
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(3.10.4-f) Neither party shall
make any investment of a capital nature either by purchase of stock or
securities, contributions to capital, property transfers or otherwise, or
by the purchase of any property or assets of any other individual, firm or
corporation.
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(3.10.5) Absence of Undisclosed
Liabilities. Each corporation has, and has no reason to anticipate
having, any material liabilities which have not been disclosed to the
other, in the financial statements or otherwise in
writing.
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(3.10.6) Legal Compliance. Each
corporation shall comply in all material respects with all Federal, state,
local and other governmental (domestic or foreign) laws, statutes,
ordinances, rules, regulations (including all applicable securities laws),
orders, writs, injunctions, decrees, awards or other requirements of any
court or other governmental or other authority applicable to each of them
or their respective assets or to the conduct of their respective
businesses, and use their best efforts to perform all obligations under
all contracts, agreements, licenses, permits and undertaking without
default.
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(3.10.7) Legal Proceedings.
Each corporation has no legal proceedings, administrative or regulatory
proceeding, pending or suspected, which have not been fully disclosed in
writing to the other.
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(3.10.8) No Breach of Other
Agreements. This Agreement, and the faithful performance
of this agreement, will not cause any breach of any other existing
agreement, or any covenant, consent decree, or undertaking by either, not
disclosed to the other.
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(3.10.9) Capital Stock. The
issued and outstanding shares and all shares of capital stock of each
corporation is as detailed herein, that all such shares are in fact issued
and outstanding, duly and validly issued, were issued as and are fully
paid and non-assessable shares, and that, other than as represented in
writing, there are no other securities, options, warrants or rights
outstanding, to acquire further shares of such
corporation.
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(3.10.10) SEC Reports.
RDSH
has filed all required registration statements, prospectuses, reports,
schedules, forms, statements and other documents required to be filed by
it with the SEC since the date of its registration under the Securities
Act of 1933, as amended (collectively, including all exhibits thereto, the
"RDSH
SEC Reports"). None of the RDSH
SEC Reports, as of their respective dates, contained any untrue statements
of material fact or failed to contain any statements which were necessary
to make the statements made therein, in light of the circumstances, not
misleading. All of the RDSH
SEC Reports, as of their respective dates (and as of the date of any
amendment to the respective RDSH
SEC Reports), complied as to form in all material respects with the
applicable requirements of the Securities Act and the Exchange Act and the
rules and regulations promulgated
thereunder.
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(3.10.11) Brokers' or Finder's
Fees. Each corporation is unaware of any claims for brokers' fees,
or finders' fees, or other commissions or fees, by any person not
disclosed to the other, which would become, if valid, an obligation of
either company.
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(3.11) Miscellaneous
Provisions
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(3.11.1) Except as required by
law, no party shall provide any information concerning any aspect of the
transactions contemplated by this Agreement to anyone other than their
respective officers, employees and representatives without the prior
written consent of the other parties hereto. The aforesaid obligations
shall terminate on the earlier to occur of (a) the Closing, or (b) the
date by which any party is required under its articles or bylaws or as
required by law, to provide specific disclosure of such transactions to
its shareholders, governmental agencies or other third parties. In the
event that the transaction does not close, each party will return all
confidential information furnished in confidence to the
other. In addition, all parties shall consult with each other
concerning the timing and content of any press release or news release to
be issued by any of them.
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(3.11.2) This Agreement may be
executed simultaneously in two or more counterpart originals. The parties
can and may rely upon facsimile signatures as binding under this
Agreement, however, the parties agree to forward original signatures to
the other parties as soon as practicable after the facsimile signatures
have been delivered.
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(3.11.3) The Parties to this
agreement have no wish to engage in costly or lengthy litigation with each
other. Accordingly, any and all disputes which the parties cannot resolve
by agreement or mediation shall be submitted to binding arbitration under
the rules and auspices of the American Arbitration
Association. The venue for arbitration shall be Charlotte North
Carolina. As a further incentive to avoid disputes, each party
shall bear its own costs, with respect thereto, and with respect to any
proceedings in any court brought to enforce or overturn any arbitration
award. This provision is expressly intended to discourage litigation and
to encourage orderly, timely and economical resolution of any disputes
which may occur.
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(3.11.4) If any provision of
this Agreement or the application thereof to any person or situation shall
be held invalid or unenforceable, the remainder of the Agreement and the
application of such provision to other persons or situations shall not be
effected thereby but shall continue valid and enforceable to the fullest
extent permitted by law.
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(3.11.5) No waiver by any party
of any occurrence or provision hereof shall be deemed a waiver of any
other occurrence or provision.
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(3.11.6) The parties
acknowledge that both they and their counsel have been provided ample
opportunity to review and revise this agreement and that the normal rule
of construction shall not be applied to cause the resolution of any
ambiguities against any party presumptively. The Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware.
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4. Termination. The Plan of
exchange may be terminated by written notice, at any time prior to closing, (i)
by mutual consent, (ii) by either party during the due diligence phase, (iii) by
either party, in the event that the transaction represented by the anticipated
Plan of exchange has not been implemented and approved by the proper
governmental authorities 60 days from the date of this Agreement, or (v) by
either party in the event that a condition of closing is not met by July 31,
2009. In the event that termination of the Plan of exchange by either or both,
as provided above, the Plan of exchange shall forthwith become void and there
shall be no liability on the part of either party or their respective officers
and directors.
5. Closing. The
parties hereto contemplate that the closing of this Plan of Exchange shall occur
no more than three days after all of the conditions precedent have been met or
waived. The closing deliveries will be made pursuant to this
Agreement. In addition, within 60 days of signing the Plan of Exchange, RDSH
shall issue 500 shares of Common
Stock of RDSH pursuant to Regulation S under the Securities Act of 1933,
as amended, to the ELP
shareholders and RDSH
shall acquire
100% of the capital stock of ELP.
6. Merger
Clause. This Plan of Exchange constitute the entire agreement
of the parties hereto with respect to the subject matter hereof, and such
document supersedes all prior understandings or agreements between the parties
hereto, whether oral or written, with respect to the subject matter hereof, all
of which are hereby superceded, merged and rendered null and void.
IN WITNESS
WHEREOF, The parties hereto, intending to be bound, hereby sign this Plan
of Exchange below as of the date first written above.
[SIGNATURE
PAGE FOLLOWS]
By:
/s/ Xxxxxx
Xxxxx
Xxxxxx
Xxxxx, Secretary
ENDEAVOUR
LOGISTICS PTY LTD.
By:
/s/ Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxx, President
