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BOARD CHANGE AGREEMENT
This BOARD CHANGE AGREEMENT (this "Agreement") is made as of the 9th
day of July 2003, by and between Sun River Mining, Inc., a Colorado corporation
to be renamed XSunX, Inc. (the "Company"), Xxxxxxx X. Xxxxxxxx, an individual
("Xxxxxxxx"), Xxxxx X. XxXxxx, an individual ("XxXxxx"), Xxxxxx Xxxxxxxx, an
individual ("Xxxxxxxx"), and Xxxxx Xxxxxxxxx, an individual ("Xxxxxxxxx"), and
is made with respect to the following facts:
R E C I T A L S
A. The current members of the Board of Directors of the Company
are Weathers, McCall, and Xxxxxxxx (collectively, the "Current Board").
X. Xxxxxxxx is the current Secretary of the Company and
Xxxxxxxx is the current Chief Executive Officer of the Company (collectively,
the "Current Officers").
C. It is the intent of the parties that all members of the Current
Board and all Current Officers resign and that Xxxxxxxxx be appointed Chairman,
Chief Executive Officer, and Chief Financial Officer, of the Company, on the
terms and subject to the conditions set forth in this Agreement (such change in
Board composition is referred to herein as the "Board Change" and such change in
the officers of the Company is referred to herein as the "Officer Change").
Thus, upon satisfaction of these conditions and the completion of the matters
set forth in this Agreement, the sole member of the Company's Board of Directors
will be Xxxxxxxxx (the "New Board") and the sole officer of the Company will be
Xxxxxxxxx (the "New Officer").
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Resignation of Directors and Officers
1.1 Resignation of Directors. Subject to the terms and
conditions of this Agreement, at the Effective Time (as defined in Section 2 of
this Agreement), the resignations of Weathers, McCall, and Xxxxxxxx from the
Company's Board of Directors shall be effective.
1.2 Appointment of Director. Subject to the terms and
conditions of this Agreement, immediately following the Effective Time, the
appointment to the Board of Xxxxxxxxx shall be effective.
1.3 Resignation of Officers. Subject to the terms and
conditions of this Agreement, at the Effective Time (as defined in Section 2 of
this Agreement), the resignations of Xxxxxxxx and Xxxxxxxx as the Secretary and
Chief Executive Officer, respectively, of the Company's Board of Directors shall
be effective.
1.4 Appointment of Officers. Subject to the terms and
conditions of this Agreement, immediately following the Effective Time, the
appointment of Xxxxxxxxx as the Chief Executive Officer, President, and Chief
Financial Officer, of the Company shall be effective.
1.5 Number of Directors. Following the Closing, the New Board
may, but shall be under no obligation to, appoint additional members of the
Board who may be identified from time to time, all in accordance with the
Company's organizational documents.
1.6 Additional Officers. Following the Closing, the
New Board may, but shall beunder no obligation to, appoint additional officers
to assist the New Officer.
2. Closing
At 5:00 p.m. pacific daylight time on August 15, 2003,
provided the conditions in Sections 6 and 7 of this Agreement have been
satisfied or waived in writing, or at such later time and date as Xxxxxxxxx and
the Current Board may agree (the "Effective Time"), the conditional resignations
of Weather, XxXxxx, and Xxxxxxxx as directors and officers of the Company, as
the case may be, shall be in effect and no longer subject to any condition and,
immediately thereafter the appointment of Xxxxxxxxx as a director, Chief
Executive Officer, President, and Chief Financial Officer, of the Company shall
be in effect and no longer subject to any condition (such resignation and
appointment, the "Closing"). On or before the Effective Time on the date of the
Closing (the "Closing Date"), the Current Board shall deliver to Xxxxxxxxx such
documents as may be reasonably requested by Xxxxxxxxx, including documents
evidencing the satisfaction of the conditions set forth in this Agreement that
are within the possession or control of the Company or the Current Board. On or
before the Effective Time on the date of the Closing (the "Closing Date"),
Xxxxxxxxx shall deliver to the Current Board such documents as may be reasonably
requested by the Company and the Current Board, including documents evidencing
the satisfaction of the conditions set forth in this Agreement that are within
the possession or control of Xxxxxxxxx.
3. Representations and Warranties
3.1 Representations of Individuals. Each individual who
is a party to this Agreement represents and warrants to all other parties to
this Agreement as follows:
(a) this Agreement constitutes the legal,
valid, and binding obligation of such person, enforceable against such person
in accordance with its terms; and
(b) the description of such individual and
any other matters between such individual and the Company to be contained in the
Information Statement (as defined in Section 6.2 of this Agreement) and any
other information supplied in writing by such individual to the Company for
inclusion in the Information Statement will be complete and accurate in all
material respects when made and at the Closing, and will not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to made the statements therein, in light of the
circumstances under which they were made, not misleading.
3.2 Representations of Company. The Company represents
and warrants to all other parties to this Agreement as follows:
(a) it is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado,
having all corporate powers to execute, deliver, and perform its obligations
under this Agreement;
(b) the execution, delivery, and performance
by the Company of this Agreement and the consummation of the transactions
contemplated hereby are within the Company's corporate powers and has been duly
authorized by all necessary corporate action;
(c) this Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid, and binding
obligation of the Company, enforceable against the Company in accordance with
its terms; and
(d) neither the execution and delivery of
this Agreement nor the consummation and performance of any of the Board Change
and Officer Change will, directly or indirectly (with or without notice or lapse
of time) contravene, conflict with, or result in a violation of any provision of
the company organizational documents or any resolutions adopted by the board of
directors or the shareholders of the Company or (ii) contravene, conflict with,
or result in a violation or breach of any provision of, or give any person the
right to declare a default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify any agreement to
which the Company is a party or by which the Company is bound.
4. Covenants of Company and Current Board Prior to Closing
4.1 Required Approvals. From the date of this Agreement until
the Effective Time, the Company and the Current Board shall make and shall
cooperate with Xxxxxxxxx to make all filings required by law in connection with
the Board Change or any other matter contemplated under this Agreement. From the
date of this Agreement until the Effective Time, the Company and the Current
Board shall use commercially reasonable efforts to cause the conditions set
forth in Sections 6 and 7 of this Agreement to be satisfied, including but not
limited to filing the Notice to Shareholders to all shareholders of record, and
mailing an amendment to the Company's Articles of Incorporation with the
Colorado Secretary of State to change the name of the Company from Sun River
Mining, Inc. to XSunX, Inc. and to effect a twenty-to-one reverse split of the
Company's common stock.
4.2 Stand Still. From the date of this Agreement until the
Effective Time (the "Stand Still Period"), unless Xxxxxxxxx otherwise consents
in writing, the Company shall not initiate on its own or solicit or encourage
any inquiries or proposals from, discuss or negotiate with, provide non-public
information to, or consider any unsolicited inquiries from any third party, in
connection with any of the following:
(a) any amendment of the organizational documents of the Company;
(b) any extraordinary corporate transaction (merger, sale of assets, sale of
securities or other similar transaction, declaration of dividend or adoption of
shareholders rights plan) or any agreement to incur any material liability
(loans for borrowed money); or
(c) any increase or agreement to increase compensation payable to directors,
employees or consultants, or enter into severance or termination arrangements
affecting directors, consultants, or employees or any amendment to any employee
plans or any grant of any options, warrants, or rights to purchase securities of
the Company.
5. Covenants of Xxxxxxxxx Prior to Closing
From the date of this Agreement until the Effective Time,
Xxxxxxxxx shall cooperate with the Company to make all filings required by law
in connection with the Board Change or any other matter contemplated under this
Agreement. From the date of this Agreement until the Effective Time, Xxxxxxxxx
shall use commercially reasonable efforts to cause the conditions set forth in
Sections 6 and 7 of this Agreement to be satisfied.
6. Conditions Precedent to the Company's and Current Board's
Obligation to Close
The Company's and Current Board's obligation to effect the
Board Change and take such other actions required to be taken by the Company and
Current Board at the Closing is subject to the satisfaction, at or prior to the
Closing, of each of the following conditions (any of which may be waived by the
Company and Current Board, in whole or in part):
6.1 Completion of Private Placement. Xxxxxxxxx shall
have completed the private placement of 13,000,000 shares of the Company's
common stock at a purchase price of $0.025 per share (the "Offering").
6.2 Notice to Shareholders. The Company shall have filed and
mailed an Information Statement (the "Notice to Shareholders") in accordance
with Rule 14f-1 under the Securities Exchange Act of 1934, as amended (the
"Act"). The ten-day waiting period required under Rule 14f-1 under the Act
following the mailing of the Notice to Shareholders shall have lapsed.
6.3 Name Change. The Company shall have filed an
amendment with the Colorado Secretary of State to change the name of the Company
from Sun River Mining, Inc. to XSunX, Inc. The amendment shall have been
recorded with the Colorado Secretary of State.
6.4 Reverse Stock Split. The Company shall have filed an
amendment with the Colorado Secretary of State to effect a twenty-to-one reverse
split of the Company's common stock. The amendment shall have been recorded with
the Colorado Secretary of State.
6.5 Assignment of Patents. The Company shall have filed
assignments of patents with the United States Patent and Trademark Office for
the following three patents: No. 6,180,871 for Transparent Solar Cell and Method
of Fabrication (Device), granted on January 30, 2001; No. 6,320,117 for
Transparent Solar Cell and Method of Fabrication (Method of Fabrication),
granted on November 20, 2001; and No. 6,509,204 for Transparent Solar Cell and
Method of Fabrication (formed with a Schottky barrier diode and method of its
manufacture), granted on January 21, 2003 (collectively, the "Patents").
6.6 Issuance of Stock. The Company shall have issued
20,000,000 shares of the Company's common stock to Xxxxxxxxx or his designees,
10,500,000 shares of the Company's common stock to Corporate Strategies, Inc. or
its designees, 400,000 shares of the Company's common stock to Xxx Xxxxx or his
designees, 400,000 shares of the Company's common stock to Xxxx Xxxxxxxxxx or
his designees.
6.7 Accuracy of Representations. All of the representations
and warranties of Xxxxxxxxx set forth in this Agreement shall have been accurate
in all material respects as of the date of this Agreement and shall be accurate
in all material respects as of the Effective Time as if made on the Effective
Time.
6.8 Performance of Covenants. Each of the covenants and
obligations that Xxxxxxxxx is required to perform or to comply with pursuant to
this Agreement at or prior to Closing shall have been duly performed and
complied with in all material respects.
6.9 No Legal Proceedings. No decree, injunction, judgment,
order, ruling, assessment or writ (collectively, "Order") shall have been
declared, entered, issued, or enforced by any governmental entity which
prohibits or restricts (or if successful, would prohibit or restrict) the Board
Change or other transactions contemplated in this Agreement.
7. Conditions Precedent to Xxxxxxxxx'x Obligation to Close
Xxxxxxxxx'x obligation to effect the Board Change and take
such other actions required to be taken by Xxxxxxxxx at the Closing is subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by Xxxxxxxxx, in whole or in part):
7.1 Approval and Conditional Appointment of Xxxxxxxxx.
Xxxxxxxxx and any executive officer proposed by the New Board to have positions
with the Company at or immediately following the Effective Time and who must be
identified in the Information Statement referred to in Section 6.2 of this
Agreement must have been disclosed to and approved by the Current Board, such
approval not to be unreasonably withheld. The Current Board shall have approved
resolutions at a meeting of the Current Board duly held in accordance with the
Bylaws which provide for the appointment of Xxxxxxxxx as a director of the
Board, such appointment to be effective at the Effective Time.
7.2 Notice to Shareholders. The Company shall have filed and
mailed the Notice to Shareholders in accordance with Rule 14f-1 under the Act.
The ten-day waiting period required under Rule 14f-1 under the Act following the
mailing of the Notice to Shareholders shall have lapsed.
7.3 Name Change. The Company shall have filed an
amendment with the Colorado Secretary of State to change the name of the Company
from Sun River Mining, Inc. to XSunX, Inc. The amendment shall have been
recorded with the Colorado Secretary of State.
7.4 Reverse Stock Split. The Company shall have filed an
amendment with the Colorado Secretary of State to effect a twenty-to-one reverse
split of the Company's common stock. The amendment shall have been recorded with
the Colorado Secretary of State.
7.5 Assignment of Patents. The Company shall have filed
assignments of patents with the United States Patent and Trademark Office for
the Patents.
7.6 Issuance of Stock. The Company shall have issued
20,000,000 shares of the Company's common stock to Xxxxxxxxx or his designees,
10,500,000 shares of the Company's common stock to Corporate Strategies, Inc. or
its designees, 400,000 shares of the Company's common stock to Xxx Xxxxx or his
designees, 400,000 shares of the Company's common stock to Xxxx Xxxxxxxxxx or
his designees.
7.7 Accuracy of Representations. All of the representations
and warranties of the Company and the Current Board set forth in this Agreement
shall have been accurate in all material respects as of the date of this
Agreement and shall be accurate in all material respects as of the Effective
Time as if made on the Effective Time.
7.8 Performance of Covenants. Each of the covenants and
obligations that the Company and the Current Board are required to perform or to
comply with pursuant to this Agreement at or prior to Closing shall have been
duly performed and complied with in all material respects.
7.9 No Legal Proceedings. No decree, injunction, judgment,
order, ruling, assessment or writ (collectively, "Order") shall have been
declared, entered, issued, or enforced by any governmental entity which
prohibits or restricts (or if successful, would prohibit or restrict) the Board
Change or other transactions contemplated in this Agreement.
8. Notice
Except as otherwise specifically provided, any notices to be
given hereunder shall be deemed given upon personal delivery, air courier or
mailing thereof, if mailed by certified mail, return receipt requested, to the
following addresses (or to such other address or addresses as shall be specified
in any notice given):
In case of the Company:
Sun River Mining, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx,
Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In case of the individuals:
The address listed below each individuals
signature to this Agreement.
9. Attorneys' Fees
In the event that any of the parties must resort to legal
action in order to enforce the provisions of this Agreement or to defend such
suit, the prevailing party shall be entitled to receive reimbursement from the
nonprevailing party for all reasonable attorneys' fees and all other costs
incurred in commencing or defending such suit.
10. Entire Agreement
This Agreement embodies the entire understanding among the
parties and merges all prior discussions or communications among them, and no
party shall be bound by any definitions, conditions, warranties, or
representations other than as expressly stated in this Agreement or as
subsequently set forth in a writing signed by the duly authorized
representatives of all of the parties hereto.
11. Injunctive Relief
11.1 Damages Inadequate. Each party acknowledges that it would
be impossible to measure in money the damages to the other party if there is a
failure to comply with any covenants and provisions of this Agreement, and
agrees that in the event of any breach of any covenant or provision, the other
party to this Agreement will not have an adequate remedy at law.
11.2 Injunctive Relief. It is therefore agreed that the other
party to this Agreement who is entitled to the benefit of the covenants and
provisions of this Agreement which have been breached, in addition to any other
rights or remedies which they may have, shall be entitled to immediate
injunctive relief to enforce such covenants and provisions, and that in the
event that any such action or proceeding is brought in equity to enforce them,
the defaulting or breaching party will not urge a defense that there is an
adequate remedy at law.
12. No Oral Change; Amendment
This Agreement may only be changed or modified and any
provision hereof may only be waived by a writing signed by the party against
whom enforcement of any waiver, change or modification is sought. This Agreement
may be amended only in writing by mutual consent of the parties.
13. Severability
In the event that any provision of this Agreement shall be
void or unenforceable for any reason whatsoever, then such provision shall be
stricken and of no force and effect. The remaining provisions of this Agreement
shall, however, continue in full force and effect, and to the extent required,
shall be modified to preserve their validity.
14. Applicable Law
This Agreement shall be construed as a whole and in accordance
with its fair meaning. This Agreement shall be interpreted in accordance with
the laws of the State of Los Angeles, and venue for any action or proceedings
brought with respect to this Agreement shall be in the County of Los Angeles in
the State of California.
15. Successors and Assigns
Each covenant and condition of this Agreement shall inure to
the benefit of and be binding upon the parties hereto, their respective heirs,
personal representatives, assigns and successors in interest. Without limiting
the generality of the foregoing sentence, this Agreement shall be binding upon
any successor to the Company whether by merger, reorganization or otherwise.
16. Counterparts
This Agreement may be executed in two counterparts, each of
which may be deemed an original, but both of which together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
COMPANY: SUN RIVER MINING, INC., a Colorado corporation
By:
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Xxxxxx Xxxxxxxx, Chief Executive Officer
Attest:
Xxxxxxx X. Xxxxxxxx, Secretary
XXXXXXXXX:
---------------------------
Xxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
XXXXXX:
---------------------------
Xxxxx X. XxXxxx
Street Address
City, State and Zip Code
Telephone Number
Facsimile Number
[signatures continued on page 9]
[signatures continued from page 8]
XXXXXXXX:
---------------------------
Xxxxxxx X. Xxxxxxxx
Street Address
City, State and Zip Code
Telephone Number
Facsimile Number
XXXXXXXX:
---------------------------
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxx, Xxxxx and Zip Code
Telephone Number
Facsimile Number
