EXHIBIT 10.12
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement") is made effective June 15, 1998
by and between NuOasis International, Inc., organized under the laws of the
Commonwealth of the Bahamas ("XXXX") and Cleopatra's World, Inc., a corporation
organized under the laws of the British Virgin Islands ("CWI").
WHEREAS, XXXX is the Assignee and beneficial owner of one million
(1,000,000) shares of Flexweight Corp., a Kansas corporation ( the "Flex
Shares"); and,
WHEREAS, CWI owns a Promissory Note in the principal amount of one million
dollars ($1,000,000) issued by NuOasis Resorts, Inc. ("Resorts"), a copy of
which is attached hereto as Exhibit "A" and incorporated herein by reference
(the "Resorts Note"); and,
WHEREAS, CWI and XXXX wish to exchange the Resorts Note owned by CWI for
the Flex Shares owned by XXXX.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises contained herein,
the benefits to be derived by each party hereunder and other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, CWI and XXXX agree as follows:
1. Exchange
On the basis of the representations and warranties herein contained,
subject to the terms and conditions set forth herein, XXXX hereby exchanges
and agrees to assign and deliver the Flex Shares for the NuOasis Note.
2. Closing
The closing of the exchange contemplated by this Agreement (the "Closing")
shall occur upon the transfer of the Flex Shares to CWI (the "Transfer
Date"), but shall not be later than June 30, 1998. At the Closing, CWI
shall deliver the NuOasis Note to XXXX and XXXX shall deliver the Flex
Shares to CWI.
3.1 Representations and Warranties of XXXX
XXXX hereby represents and warrants to CWI that:
A. Organization. XXXX is a corporation validly existing and in good
standing under the laws of the Commonwealth of the Bahamas, with the
power and authority to carry on its business as now being conducted.
The execution and delivery of this Agreement and the consummation of
the transaction contemplated in this Agreement have been, or will be
prior to Closing, duly authorized by all requisite corporate action on
the part of XXXX. This Agreement has been duly executed and delivered
by XXXX and constitutes a binding, and enforceable obligation of XXXX;
and,
B. Third Party Consent. No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by XXXX in connection with
the execution, delivery, or performance of this Agreement, or if
required, XXXX has or will obtain same prior to Closing; and,
C. Litigation. XXXX is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgement, in any litigation
or proceedings before any state, local or federal government, or any
department, board, body or agency thereof, which could result in a
claim against the Flex Shares; and,
D. Status of Flex Shares. To the best of NUOI's knowledge, the Flex
Shares are validly123 issued and there is no claim by any third parties
which would serve to restrict the assignment, transfer or exchange of
the Flex Shares as contemplated herein. Further, XXXX has not created
any option, security interest or encumbrance involving the Flex Shares
that would give rise to any claims by third parties or otherwise
conflict with or preclude the exchange as contemplated herein; and
E. Authority. This Agreement has been duly executed by XXXX, and the
execution and performance of this Agreement will not violate, or result
in a breach of, or constitute a default in any agreement, instrument,
judgement, order or decree to which XXXX is a party or to which XXXX is
subject.
3.2 Representations and Warranties of CWI
CWI hereby represents and warrants to XXXX that:
A. Organization. CWI is a corporation validly existing and in good
standing under the laws of the British Virgin Islands, with the power
and authority to carry on its business as now being conducted. The
execution and delivery of this Agreement and the consummation of the
transaction contemplated in this Agreement have been, or will be prior
to Closing, duly authorized by all requisite corporate action on the
part of CWI. This Agreement has been duly executed and delivered by CWI
and constitutes a binding, and enforceable obligation of CWI; and,
B. Third Party Consent. No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other
person is required to be obtained or made by CWI in connection with the
execution, delivery, or performance of this Agreement, or if required,
CWI has or will obtain same prior to Closing; and
C. Litigation. CWI is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgement, in any litigation
or proceedings before any state, local or federal government, or any
department, board, body or agency thereof, which could result in a
claim against the NuOasis Note; and,
D. Status of the NuOasis Note. To the best of CWI's knowledge, the
NuOasis Note is validly issued by NuOasis Resorts, Inc. or any third
parties and there is no claim by NuOasis Resorts, Inc. or any third
parties which would serve to restrict the collection, transfer or
exchange of the NuOasis Note as contemplated herein. Further, CWI has
not created any option, security interest or encumbrance involving the
rights to the NuOasis Note that would give rise to any claims by third
parties or otherwise conflict with or preclude the exchange as
contemplated herein; and
E. Authority. This Agreement has been duly executed by CWI, and the
execution and performance of this Agreement will not violate, or result
in a breach of, or constitute a default in any agreement, instrument,
judgement, order or decree to which CWI is a party or to which CWI is
subject.
4. Conditions Precedent to Obligations of CWI and XXXX
All obligations of CWI and XXXX under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the following
conditions:
A. Transfer and Delivery of the NuOasis Note. CWI shall have executed
proper transfer documents to assign and convey merchantable title to
the NuOasis Note and the underlying collateral, and delivered same
along with the original of such NuOasis Note to XXXX; and
B. Transfer and Delivery of the Flex Shares. XXXX shall have taken all
action necessary to deliver the Flex Shares to CWI; and
C. Acceptance of Documents. All instruments and documents delivered by
CWI and XXXX pursuant to the provisions of this Agreement shall be
satisfactory to CWI and XXXX and their legal counsel.
5. Availability of Information
CWI and XXXX each represent that, by virtue of their respective business
activities and economic bargaining power or otherwise, they have been able
to conduct their own due diligence and have had access to or have been
furnished with, prior to or concurrently with the execution hereof, the
information which they consider to be adequate to make a decision to
exchange the NuOasis Note for the Flex Shares.
6. Private Transaction
A. Private Offering. XXXX and CWI understand each that the exchange
contemplated herein constitutes a private, arms-length transaction
between the parties without the use or reliance upon a distribution or
securities underwriter; and,
B. Purchase for Own Account. Neither XXXX nor CWI are underwriters of, or
dealers in, the respective securities to be exchanged hereunder, and
neither party is acting as such or participating in the distribution of
such securities; and
C. Investment Risk. Because of their financial position and other
factors, the exchange contemplated by this Agreement may involve a high
degree of financial risk, including the risk that one or both parties
may lose its entire investment; and
D. Access to Information. XXXX, CWI and their respective advisors have
been afforded the opportunity to discuss the transaction with legal and
accounting professionals and to examine and evaluate the financial
impact of the exchange contemplated herein.
7. Termination
This Agreement may be terminated at anytime prior to the date of Closing by
either party if (a) there shall be any actual or threatened action or
proceeding by or before any court or any other governmental body which
shall seek to restrain, prohibit, or invalidate the transaction
contemplated by this Agreement, and which, in the judgment of such party
giving notice to terminate and based upon the advice of legal counsel,
makes it inadvisable to proceed with the transaction contemplated by this
Agreement, or (b) if the transaction contemplated herein has not closed by
June 30, 1998.
8. Miscellaneous
A. Authority. The officers of CWI and XXXX executing this Agreement are
duly authorized to do so and each party has taken all action required
by law or otherwise to properly and legally execute this Agreement.
B. Notices. Any notice under this Agreement shall be deemed to have been
sufficiently given if sent by registered or certified mail, postage
prepaid, addressed as follows:
To XXXX: NuOasis International Incorporated
00 Xxxxxxxxx Xxxxxx, Xxx X-0000
Nassau, Bahamas
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To CWI: Cleopatra's World, Inc.
X.X. Xxx 0000, Xxxx Xxxx
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to any other address which may hereafter be designated by either
party by notice given in such manner. All notices shall be deemed to
have been given as of the date of receipt.
C. Entire Agreement. This Agreement sets forth the entire understanding
between the parties hereto and no other prior written or oral statement
or agreement shall be recognized or enforced.
D. Severability. If a court of competent jurisdiction determines that any
clause or provision of this Agreement is invalid, illegal or
unenforceable, the other clauses and provisions of the Agreement shall
remain in full force and effect and the clauses and provision which are
determined to be void, illegal or unenforceable shall be limited so
that they shall remain in effect to the extent permissible by law.
E. Assignment. None of the parties hereto may assign this Agreement
without the express written consent of the other parties and any
approved assignment shall be binding on and inure to the benefit of
such successor or, in the event of death or incapacity, on assignor's
heirs, executors, administrators and successors.
F. Applicable Law. This Agreement has been negotiated and is being
contracted for in the State of Nevada, it shall be governed by the laws
of the State of Nevada, County of Xxxxx, notwithstanding any
conflict-of-law provision to the contrary.
G. Attorney's Fees. If any legal action or other preceding
(non-exclusively including arbitration) is brought for the enforcement
of or to declare any right or obligation under this Agreement or as a
result of a breach, default or misrepresentation in connection with any
of the provisions of this Agreement, or otherwise because of a dispute
among the parties hereto, the prevailing party will be entitled to
recover actual attorney's fees (including for appeals and collection)
and other expenses incurred in such action or proceeding, in addition
to any other relief to which such party may be entitled.
H. No Third Party Beneficiary. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person, other than the parties
hereto and their successors, any rights or remedies under or by reason
of this Agreement, unless this Agreement specifically states such
intent.
I. Counterparts. It is understood and agreed that this Agreement may be
executed in any number of identical counterparts, each of which may be
deemed an original for all purposes.
J. Further Assurances. At any time, and from time to time after the
Closing, each party hereto will execute such additional instruments and
take such action as may be reasonably requested by the other party to
confirm or perfect title to the NuOasis Note and the Flex Shares, or
otherwise to carry out the intent and purposes of this Agreement.
K. Broker's or Finder's Fee; Expenses. XXXX and CWI each warrant that
they have not incurred any liability, contingent or otherwise, for
brokers' or finders' fees or commissions relating to this Agreement for
which the other party shall have responsibility. Except as otherwise
provided herein, all fees, costs and expenses incurred by either party
relating to this Agreement shall be paid by the party incurring same.
L. Amendment or Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other
shall be construed as a waiver of the same or any other default then,
theretofore, or thereafter occurring or existing. At any time prior to
Closing, this Agreement may be amended by a writing signed by all
parties hereto.
M. Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
N. Facsimile. A facsimile, telecopy or other reproduction of this
instrument may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on
behalf of such party can be seen, and such execution and delivery shall
be considered valid, binding and effective for all purposes. At the
request of any party hereto, all parties agree to execute an original
of this instrument as well as any facsimile, telecopy or other
reproduction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
"CWI"
Cleopatra's World, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Chairman
"XXXX"
NuOasis International, Incorporated
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: President
