EXHIBIT 10.4
EXCHANGE AGREEMENT
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This Agreement made as of this 2nd day of July, 2001, between ▇▇▇▇▇ ▇▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (hereinafter referred to individually as a "Member" and
collectively as the "Members"), and WOW ENTERTAINMENT, INC. (hereinafter
referred to as "Entertainment"), a Delaware corporation.
W I T N E S S E T H :
WHEREAS, the Members are the sole owners and managers of ▇▇▇▇▇▇
Development, Ltd. ("LLC"), an Ohio limited liability company; and
WHEREAS, each Member owns 100 Units ("Units") in the LLC (collectively the
"LLC Interests"); and
WHEREAS, on June 28, 2001 each Member agreed to exchange his/her Units for
300,000 shares of Entertainment common shares as described below, so that LLC
becomes a wholly-owned subsidiary of Entertainment, upon the terms and
conditions hereinafter set forth; and
WHEREAS, the Board of Directors of Entertainment have approved and adopted
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
provisions and conditions contained herein, and for other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings, unless the context shall otherwise require:
(a) LLC Interests shall mean the combined Units of LLC owned by the
Members.
(b) Entertainment Common Stock shall mean the total of 600,000 shares of
Common Stock, $0.01 par value, of Entertainment, to be issued equally
between each Member in accordance with this Agreement at the June 28,
2001 closing price of $0.20 a share.
(c) Closing shall mean the consummation of this Agreement in accordance
with the provisions hereof to be held on or before July 2, 2001 unless
changed by the mutual agreement of the parties hereto.
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ARTICLE II
EXCHANGE OF SECURITIES
At the Closing, the LLC Interests shall be exchanged for the Entertainment
Common Stock. Upon the exchange, the Members shall assign the LLC Interests to
Entertainment and shall execute any and all documents and take such actions as
necessary to cause Entertainment to be immediately admitted as a Member of LLC
in accordance with the terms of the LLC Operating Agreement. Each Member shall:
(i) cease to have any rights with respect to the Units; (ii) waive any rights
he/she may have to purchase the other Member's Units; (iii) resign as a manager
of LLC and (iv) consent to the substitution of Entertainment as the sole member
of LLC. Such certificate previously evidencing the Units, if any, shall be
exchanged by each Member for a certificate evidencing his/her share of the
Entertainment Common Stock.
The Entertainment Common Stock certificate shall bear the usual restrictive
legend pertaining to Rule 144 of the General Rules and Regulations promulgated
under the Securities Act of 1933. At the Closing, all transactions shall be
deemed to have been simultaneous and none shall become effective until all have
been completed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE MEMBERS
The following representations and warranties are hereby made by the Members to
Entertainment:
3.01 Authorization. The Members have full power and authority to enter into
this Agreement and to carry out the transaction contemplated herein.
This Agreement constitutes the valid and legally binding obligation of
the Members, enforceable in accordance with its terms and conditions.
3.02 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
and thereby, will (a) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental entity, or court to which
either Member or LLC is subject or (b) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify or
cancel, or require any notice under any agreement, contract, lease,
license, instrument or other arrangement to which either Member or LLC
is a party.
3.03 LLC Interests. Each Member holds of record and owns beneficially 100
Units of LLC, free and clear of any restrictions on transfer (other
than any restrictions under the Securities Act and state securities
laws) encumbrances, security interests, options, warrants, purchase
rights, contracts, commitments and/or equities other than as described
in the Articles of Organization and Operating Agreement of the LLC.
Neither Member is a party to any option, warrant, purchase right or
other contract or commitment that could require the Member to sell,
transfer or otherwise dispose of the Units other than as described in
the Articles of Organization and Operating Agreement of the LLC.
Neither Member is a party
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to any voting trust, proxy or other agreement or understanding with
respect to the voting of any of the Units (other than this Agreement).
The Members shall execute any and all documents and take such actions
as necessary to cause Entertainment to be immediately admitted as a
member of LLC with all rights and privileges thereto.
3.04 Title to Assets. LLC has good and marketable title to all of its
properties and assets, both real and personal, free and clear of all
security interests, liens, claims, equities of others and restrictions
on the right to transfer, none of which exceptions impairs in any
material respect the normal conduct of its business.
3.05 No Litigation. There is no action, proceeding, claim or investigation
pending or, to the best of the Members' knowledge, threatened against
LLC or to which any of its assets or properties are subject before any
court or any governmental department, commission, board, bureau, agency
or instrumentality, business or goodwill and, after investigation, the
Members know of no basis or grounds for any such action, proceeding,
claim or investigation; and there is no outstanding order, writ,
injunction or decree of any court, governmental department, commission,
board, bureau, agency or instrumentality, or any arbitration award
against LLC.
3.06 No Adverse Claims. None of LLC's officers or employees has any claim
against it except for salaries or other ordinary expenses, and LLC is
not obligated to any of such persons in any way or for any amount
except for salaries, wages or ordinary expenses.
3.07 No Undisclosed Liabilities. LLC does not have any liabilities other
than as set forth on its financial statements or as might be incurred
in the ordinary course of business.
3.08 Accredited Investor. Each Member is an "accredited investor" as that
term is defined in Regulation D of the Securities Act or has sufficient
knowledge and experience in financial and business matters that he/she
is capable of evaluating the merits and risks of the transaction
contemplated by this Agreement and making an informed business
decision.
3.09 Investment Intention. Each Member has no present intention to dispose
of any shares of Entertainment Common Stock, except for sales of
shares pursuant to Rule 144 promulgated under the Securities Act.
3.10 No Brokerage Fees. No agent, broker, investment banker, person or firm
acting on behalf of either Member to the best of his/her knowledge, is
or will be entitled to any broker's or finder's fee or any other
commission or fee, directly or indirectly, in connection with any of
the transactions contemplated hereby.
3.11 Representations True. No representation or warranty contained herein,
nor any statement or certificate furnished hereunder or in connection
herewith, contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ENTERTAINMENT
The following representations and warranties are hereby made by Entertainment to
the Members:
4.01 Organization; Authorization. Entertainment is a corporation duly
organized, validly existing and in good standing under the laws of its
state of incorporation and has full power and authority to enter into
this Agreement and to carry out the transaction contemplated herein.
This Agreement constitutes the valid and legally binding obligation of
Entertainment, enforceable in accordance with the terms and conditions.
4.02 Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
and thereby, will (a) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental entity, or court to which
Entertainment is subject or (b) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify or cancel, or
require any notice under any agreement, contract, lease, license,
instrument or other arrangement to which Entertainment is a party.
4.03 Capital Stock. Entertainment's authorized capital stock consists of
150,000,000 shares of Common Stock, $.01 par value, and 1,000,000
shares of Preferred Stock , $0.01 par value. Entertainment has full
right and authority to issue to the Members, upon the terms and
conditions set forth in this Agreement, the shares specified by this
Agreement and, subject to the receipt of the consideration therefor
pursuant to the terms and conditions hereof, the shares will be duly
and validly issued as fully paid and nonassessable shares of
Entertainment common stock.
4.04 No Brokerage Fees. No agent, broker, investment banker, person or firm
acting on behalf of it to the best of its knowledge, is or will be
entitled to any broker's or finder's fee or any other commission or
fee, directly or indirectly, in connection with any of the transactions
contemplated hereby.
4.05 Representations True. No representation or warranty contained herein,
nor any statement or certificate furnished hereunder or in connection
herewith, contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make
the statements contained herein or therein not misleading.
ARTICLE V
MISCELLANEOUS
5.01 Tax Consequences. Each party represents that it/he/she has consulted
with its/his/her own tax advisors and has made has made its/his/her
own independent conclusion regarding the tax consequences of the
intended transaction.
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5.02 Survival. All agreements, representations and warranties made hereunder
or in connection with the transactions contemplated hereby shall
survive the Closing and remain effective in accordance with the terms
hereof regardless of any investigation at any time made by or on behalf
of any of the parties.
5.03 Assignment. This Agreement may not be assigned nor any of the
performances hereunder delegated by operation of law or otherwise by
any party hereto, and any purported assignment or delegation shall be
void.
5.04 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors,
legal representatives, assigns and transferors.
5.05 Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof. There are
no representations, warranties, conditions or other obligations except
as specifically provided. Any waiver, amendment or modification hereof
must be in writing. A waiver in one instance shall not be deemed to be
a continuing waiver or waiver in any other instance.
5.06 Arbitration. Any and all disputes, claims and controversies arising
under or by reason of this agreement shall be settled by arbitration in
accordance with the rules of the American Arbitration Association and
any award rendered in such arbitration shall be binding and conclusive
upon the parties. The arbitrators may decree specific performance or
grant injunctions or any other equitable relief deemed proper by the
arbitrators under the circumstances. Such arbitration shall be held in
Indianapolis, Indiana. Judgment on any award may be entered and
enforced in any court located in Indianapolis, Indiana.
5.07 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Indiana.
5.08 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This
Agreement may be deemed executed upon receipt of a facsimile copy
bearing signatures of the parties, provided that a complete document
bearing original signatures is assembled within five business days of
such execution.
5.09 Effective Date. The Effective date of the Closing shall be July 2,
2001.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
WOW ENTERTAINMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. May
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▇▇▇▇▇▇▇ ▇. May, CFO
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, Individually
/s/ Carter Fortune
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Carter Fortune, Individually
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