Exhibit 2.1
STOCK SWAP AGREEMENT
STOCK SWAP AGREEMENT, dated as of July 30, 2004 (this "Agreement"), by
and among American Visionwear LLC, a Texas Limited Liability Corporation
("Seller"); Moliris Corp., a Florida corporation ("Purchaser"); and Ranging
Corp., a Texas corporation ("Company").
W I T N E S S E T H
WHEREAS, Seller desires to trade to Purchaser 1,000,000 shares of the
Company's common stock, par value of $0.00 (the "Common Stock") (the "Shares"),
representing 100% of the Company's issued and outstanding shares of the Common
Stock of the Company, on the terms and conditions set forth in this Stock Swap
Agreement ("Agreement"), and
WHEREAS, Purchaser desires to swap the Shares on the terms and
conditions set forth herein, and
WHEREAS the Company joins in the execution of this Agreement for the
purpose of evidencing its consent to the consummation of the foregoing
transactions and for the purpose of making certain representations and
warranties to and covenants and agreements with the Purchaser.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE 1 SWAP OF THE SHARES
1.1 Swap of the Shares. Subject to the terms and conditions herein set
forth, on the basis of the representations, warranties and agreements herein
contained, Seller hereby swaps, assigns, transfers and delivers the Shares to
Purchaser, and Purchaser purchases the Shares from the Seller.
1.2 The Closing. The swap of the Shares shall take place via
overnighting documents and shares between all parties. Such date is herein
referred to as the "Closing Date".
1.3 Instruments of Conveyance and Transfer. At the Closing Date, Seller
shall deliver certificates representing the Shares to Purchaser, duly endorsed
by the Seller to the Purchaser, in form and substance satisfactory to Purchaser
("Certificates"), as shall be effective to vest in Purchaser all right, title
and interest in and to all of the Shares. See Article 8 below.
1.4 Consideration for the Shares. In consideration for the Shares,
Purchaser shall issue to Seller 1,000,000 shares of MOLIRIS Class "B" Common
Stock (voting, Convertible 1 for 1 to Class "A" Common Stock, within two years,
and pays a dividend equal to twenty percent (20%) of gross sales of Ranging
product line), represented by a stock certificate duly issued and countersigned
by the transfer agent of MOLIRIS containing a restrictive transfer legend,
subject to adjustment which is defined below in exchange for 1,000,000 shares of
the Company's stock which shall comprise One Hundred (100%) Percent of the
Company stock. All parties hereto intend this to qualify as a tax free exchange
under Section 351 as a transfer to a control group and agree to cooperate to
ensure compliance with all applicable regulations.
1.4.a The number of shares of MOLIRIS class "B" common stock, exchanged
for the RANGING stock shall be subject to increase six months after the
closing, (the "adjustment date"), the "adjustment Shares".
1.4.b The adjustment shares shall be equal to $2,000,000 less all
liabilities assumed, divided by the average closing bid price of
MOLIRIS stock for the 30 days preceding the adjustment date minus the
original 1,000,000 shares from closing. Any adjustment shares due will
be delivered within 30 days of determination.
1.5 Excluded Assets. NONE
1.6 Prorations. All accrued but unpaid taxes and other assessments of
the Company shall be prorated on the Closing Date between Seller and Purchaser.
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents, warrants and undertakes to the Purchaser that:
2.1 Transfer of Title. Seller shall transfer all right, title and
interest in and to the Shares to the Purchaser free and clear of all liens,
security interests, pledges, encumbrances, charges, restrictions, demands and
claims, of any kind or nature whatsoever, whether direct or indirect or
contingent.
(a) Due Execution. This Agreement has been duly executed and
delivered by the Seller.
(b) Valid Agreement. This Agreement constitutes, and upon
execution and delivery thereof by the Seller, will
constitute, a valid and binding agreement of the Seller
enforceable against the Seller in accordance with its terms.
(c) Authorization. The execution, delivery and performance by the
Seller of this Agreement and the delivery by the Seller of the
Shares have been duly and validly authorized by the Company,
and no further consent or authorization of the Seller, the
Company, its Board of Directors, or its stockholders is
required.
(d) Seller' Title to Shares; No Liens or Preemptive Rights; Valid
Issuance. Seller has and at the Closing will have good and
valid title and control of the Shares; there will be no
existing impediment or encumbrance to the sale and transfer of
such Shares to the Purchaser; and on delivery to the Purchaser
of the Shares, good and valid title to all the Shares will
pass to Purchaser and all of the Shares will be free and clear
of all taxes, liens, security interests, pledges, rights of
first refusal or other preference rights, encumbrances,
charges, restrictions, demands, claims or assessments of any
kind or any nature whatsoever whether direct, indirect or
contingent and shall not be subject to preemptive rights,
tag-along rights, or similar rights of any of the stockholders
of the Company. The Shares have been legally and validly
issued in compliance with all applicable U.S. federal and
state securities laws, and are fully paid and non-assessable
shares of the Company's Common Stock; and the Shares have all
been issued under duly authorized resolutions of the Board of
Directors of the Company. At the Closing, Seller shall deliver
to the Purchaser Certificates representing the Shares free and
clear of all liens, security interests, pledges, encumbrances,
charges, restrictions, demands or claims in any other party
whatsoever with appropriate stock powers with medallion
guarantees.
2.2 No Governmental Action Required. The execution and delivery by the
Seller of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official.
2.3 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Seller and the Company of this Agreement does not
and will not, and the sale by the Seller of the Shares and the consummation of
the other transactions contemplated by this Agreement does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, (ii) the articles of incorporation or by-laws of
the Company or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Seller or the Company's assets, or result in the
creation or imposition of any lien on any asset of the Seller.
2.4 Not a Voting Trust: No Proxies. None of the 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 the Shares. Except as
provided in this Agreement, the Seller is not a party to any agreement which
offers or grants to any person the right to purchase or acquire any of the
Shares. There is no applicable local, state or federal law, rule, regulation, or
decree which would, as a result of the sale contemplated by this Agreement,
impair, restrict or delay any voting rights with respect to the Shares.
2.5 Survival of Representations. The representations and warranties
herein by the Seller will be true and correct in all material respects on and as
of the Closing Date with the same force and effect as though said
representations and warranties had been made on and as of the Closing Date and
will survive the Closing Date.
2.6 Brokers. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission payable by the Purchaser or the
Company in connection with the transactions contemplated by this Agreement.
2.7 Investment Intent. Seller represents that it is acquiring and will
acquire, as the case may be, the Purchase Price Shares issuable to it pursuant
hereto solely for its own account for investment purposes only and not with a
view toward resale or distribution thereof other than pursuant to an effective
registration statement or applicable exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act").
Seller understands that such Purchase Price Shares will be issued in reliance
upon an exemption from the registration requirements of the Securities Act and
that subsequent sale or transfer of such securities is prohibited absent
registration or exemption from the provisions of the Securities Act. Seller
further acknowledges that under SEC Rule 144, the Purchase Price Shares may be
sold pursuant to all of the provisions of such Rule after a holding period of
one year and that the Purchase Price Shares will become fully tradable after a
holding period of two years. Seller hereby agrees that it will not sell, assign,
transfer, pledge or otherwise convey any of the Purchase Price Shares issuable
pursuant hereto, except in compliance with the provisions of the Securities Act
and in accordance with any transfer restrictions or similar terms set forth on
the certificates representing such securities or otherwise set forth herein.
Seller acknowledges receiving copies of Purchaser's most recent SEC disclosure
statements.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PURCHASER
Unless specifically stated otherwise, Purchaser represents and warrants
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date:
3.1 Agreement's Validity. This Agreement has been duly executed and
delivered by Purchaser and constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
3.2 Investment Intent. Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof.
3.3 Restricted Securities. Purchaser understands that the Shares have
not been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption therefrom.
ARTICLE 4 COVENANTS OF THE PARTIES
4.1 General. In case at any time after the Closing Date any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Article 7 below).
The Seller agrees that from and after the Closing Date, the Purchaser will be
entitled to review and inspect all documents, books, records (including Tax
records), properties, agreements, field operations, environmental records and
compliance, and financial data of any sort relating to the Company, and to
discuss the Company with its employees, customers and vendors. If for any reason
the Closing Date does not occur, Purchaser agrees to maintain the
confidentiality of and not use for its benefit any information obtained about
the Company in the course of such review.
4.2 Notices and Consents. The Seller will, and will cause the Company
to, give any notices to third parties, and the Seller will use his best efforts,
and will cause the Company to use its best efforts, to obtain any third-party
Consents that the Purchaser may request. Each of the Parties will (and the
Seller will cause the Company to) give any notices to, make any filings with,
and use its best efforts to obtain any required authorizations, Consents, and
approvals of governmental bodies.
4.3 Transition. Seller will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Company from maintaining the same
business relationships with the Company after the Closing as it maintained with
the Company prior to the Closing. The Seller will refer all customer inquiries
relating to the business of the Company to the Purchaser from and after the
Closing.
4.4 Covenant Not to Compete. The Seller acknowledges that it has
special knowledge, expertise, contacts and other information with respect to the
business of the Company. In further consideration of the sale hereby, the Seller
agrees to be bound by the terms of this Section 5.4. Seller acknowledges that
the restrictions set forth in this Section 4.4 are necessary and appropriate to
protect the interest of the Company and the Purchaser and to ensure that the
Purchaser obtains all of the benefits intended to be conveyed to the Purchaser
by the Seller pursuant to this Agreement, including the good will of the
Company.
(a) Non-competition. Seller hereby agrees that for five years
after the Closing Date, that the Seller will not jointly or
individually, directly or indirectly, (i) have any ownership interest
(whether as proprietor, partner, stockholder or otherwise) in, (ii) be
an officer, director or general or managing partner of, or hold a
similar position in, (iii) act as agent, broker or distributor for, or
adviser or consultant to, (iv) be employed in, or (v) otherwise engage
in, any business or business activities (without regard to the form in
which conducted) which is engaged, or which the Seller reasonably knows
are undertaking to become engaged, in the Territory in the Restricted
Business. The ownership by the Seller of less than one percent (1%) of
the shares of capital stock of a publicly held corporation shall in no
event be deemed a violation of the foregoing.
(b) No Interference With Employees. Seller hereby agrees that
during a period of five years after the Closing Date, the Seller will
not, directly or indirectly, solicit, request, induce, assist or
encourage any other employee of the Company, the Purchaser or any of
its subsidiaries to terminate his or her employment with the Company,
the Purchaser or any of its subsidiaries, respectively.
(c) Trade Secrets; Confidential Information. Seller recognizes
and acknowledges that he has had access to certain highly sensitive,
special or unique information that is confidential or proprietary, and
agree that they shall not at any time after the date hereof, use or
divulge, furnish or make accessible to anyone (other than in the
regular course of the business of the Company) any knowledge or
information of a confidential or secret nature with respect to the
business affairs (including, but not limited to, any information
concerning customers or accounts) of the Company except as may
otherwise be required by law or may otherwise become public knowledge
from a source, other than the Seller, who is entitled to disclose such
information.
(d) Miscellaneous. If the final judgment of a court of
competent jurisdiction declares that any term or provision of this
Section 4.4 is invalid or unenforceable, the Parties agree that the
court making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration, or area of the term or
provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this
Agreement shall be enforceable as so modified after the expiration of
the time within which the judgment may be appealed.
ARTICLE 5 CLOSING, DELIVERY OF DOCUMENTS AND POST CLOSING COVENANTS
5.1 Closing. The Closing referred to in Section 1.2 hereof shall occur
as a single integrated transaction, as follows.
(a) Delivery by Seller. Seller shall deliver to Purchaser:
(i) The Shares;
(ii) copies of resolutions by the Board of Directors of
the Company approving the terms of this Agreement and
the execution of the Agreement by the Company;
(iii) copies of all books, records and documents relating
to the Company, including the corporate records and
stock records of the Company;
(iv) resignations as directors and officers;
(v) any other such instruments, documents and
certificates as are required to be delivered by
Seller or its representatives pursuant to the
provisions of this Agreement; and
(vi) the Consents.
(b) Delivery by Purchaser. Purchaser shall deliver to Seller:
(i) the Swap Shares;
(ii) copies of resolutions of the Board of Directors of
Purchaser approving the terms of the Agreement and
the execution of this Agreement by the Purchaser.
ARTICLE 6 MISCELLANEOUS
6.1 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understanding related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statement, certificates, or other documents delivered pursuant hereto or
in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set forth.
6.2 Notices. Any notice or communications hereunder must be in writing
and given by depositing same in the United States mail addressed to the party to
be notified, postage prepaid and registered or certified mail with return
receipt requested or by delivering same in person. Such notices shall be deemed
to have been received on the date on which it is hand delivered or on the third
business day following the date on which it is to be mailed. For purpose of
giving notice, the addresses of the parties shall be:
If to Purchaser to:
-------------------
Moliris Corp.
Attn: Xxxxxxx X. Xxxxx
0000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
Fax: 000.000.0000
If to Seller:
-------------
American Visionwear LLC
Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Fax: 000.000.0000
6.3 Governing Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Texas (without regard to principles of conflicts of law).
6.4 Consent to Jurisdiction. Each party irrevocably submits to the
exclusive jurisdiction of the appropriate state or federal court in the State of
Texas for the purposes of any suit, action or other proceeding arising out of
this Agreement or any transaction contemplated hereby or thereby. Each party
agrees to commence any such action, suit or proceeding in Fort Worth, Texas. The
parties agree that any service of process to be made hereunder may be made by
certified mail, return receipt requested, addressed to the party at the address
appearing in Section 8.2. Such service shall be deemed to be completed when
mailed and sent and received by Telecopier. Seller and Purchaser each waives any
objection based on forum non-conveniens. Nothing in this paragraph shall affect
the right of Seller or Purchaser to serve legal process in any other manner
permitted by law.
6.5 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6.6 Further Assurances. Each party shall, at the request of the other
party, at any time and from time to time following the Closing Date promptly
execute and deliver, or cause to be executed and delivered, to such requesting
party all such further instruments and take all such further action as may be
reasonably necessary or appropriate to carry out the provisions and intents of
this Agreement and of the instruments delivered pursuant to this Agreement.
6.7 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to person or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable, in no event shall this
Agreement be rendered void or unenforceable.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written herein above.
Moliris Corp.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx Xxxxxx
Ranging Corp.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
American Visionwear, LLC
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
