AGREEMENT FOR EXCHANGE OF COMMON STOCK
Exhibit
10.4
THE
SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED
IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD
OR
OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF
THE
ISSUER.
THIS
AGREEMENT
is made
and entered into this ____ day of November, 2005, by and among IPMC Holdings
Corp., a Florida corporation ("ISSUER"), and Grifco International, Inc., a
Nevada corporation (“GI”) and GI’s wholly-owned subsidiary, Coil Tubing
Technologies, Incorporated, a Texas corporation ("CT”). (GI and CT shall
collectively herein be referred to as “ACQUIREE”.)
W
I T N E S S E T H
WHEREAS,
ISSUER
is a publicly traded company whose common stock, par value $.001 per share
(the
“ISSUER Common Stock”) is quoted on the National Quotation Bureau Pink Sheets
under the symbol “IPHG”.
WHEREAS,
the
parties desire that ISSUER acquire all of the issued and outstanding common
stock from the CT Shareholders solely in exchange for an aggregate of 75,000,000
newly issued shares of ISSUER’s common stock (the “Exchange Shares”) pursuant to
the terms and conditions set forth in this Agreement (the
“Exchange”).
WHEREAS,
the
parties intend that the transaction contemplated herein (the “Transaction”)
qualify as a reorganization and tax-free exchange under Section 368(a) of
the Internal Revenue Code of 1986, as amended.
WHEREAS, following
the Closing, CT will become a wholly-owned subsidiary of ISSUER.
WHEREAS,
immediately following the consummation of the transaction contemplated hereby,
the Exchange Shares will represent 75% percent of the total outstanding Common
Stock of ISSUER.
NOW,
THEREFORE,
in
consideration of the mutual promises, covenants, representations and warranties
contained herein, and other good and valuable consideration, each of the parties
hereto agrees as follows:
1.
EXCHANGE
OF SECURITIES. Subject
to the terms and conditions of this Agreement, the ISSUER agrees to issue to
Grifco International, Inc., 75,000,000 shares of ISSUER such that CT shall
become a wholly-owned subsidiary of ISSUER.
2. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF ISSUER.
ISSUER
represents and warrants to GI, and covenants and agrees with GI, as
follows:
(a) Organization.
ISSUER
is a corporation duly organized, validly existing, and in good standing under
the laws of Florida, and has all necessary corporate powers to own properties
and carry on a business, and is duly qualified to do business and is in good
standing in Florida. All actions taken by the incorporators, directors, officers
and shareholders of ISSUER have been valid and in accordance with the laws
of
the State of Florida.
(b) Capital.
The
authorized capital stock of ISSUER consists of 200,000,000 shares of common
stock, no par value, of which, prior to the issuance of shares hereunder, there
will be no more than 25,000,000 shares issued and outstanding including the
Conversion Shares, as that term is defined herein. At closing of the Exchange
(the “Closing”), all such outstanding shares shall be fully paid and
non-assessable, free of all liens, encumbrances, options, restrictions and
legal
or equitable rights of others not a party to this Agreement. At the Closing,
there will be no outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments obligating ISSUER
to
issue or to transfer from treasury any additional shares of its capital stock.
None of the outstanding shares of ISSUER are subject to any stock restriction
agreements. All of the shareholders of ISSUER have valid title to such shares
and acquired their shares in a lawful transaction and in accordance with the
laws of the State of Florida. At the Closing, after the subsequent closing
and
the full conversion of any debt of the ISSUER, GI will own approximately 75%
of
the issued and outstanding stock of the ISSUER.
(c) Pink
Sheet Listing. The
Company is not a reporting company, but is currently listed for trading on
the
National Quotation Bureau Electronic Pink Sheets with the following trading
symbol: IPHC.
(d) Financial
Statements and
Liabilities.
ISSUER
has no available financial statements. Immediately prior to the Closing, ISSUER
will convert its present debt into 15,000,000 shares of common stock (the
“Conversion Shares”). Upon conversion of the ISSUER’s existing debt into the
Conversion Shares, the Issuer will have no liabilities.
(e) Ability
to Carry Out Obligations.
ISSUER
has the right, power, and authority to enter into and perform its obligations
under this Agreement. This Agreement and the transactions contemplated hereby
have been approved by all necessary corporate action of ISSUER. The execution
and delivery of this Agreement by ISSUER and the performance by ISSUER of its
obligations hereunder will not cause, constitute, or conflict with or result
in
(a) any breach or violation or any of the provisions of or constitute a default
under any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, or other agreement or instrument to which ISSUER or its
shareholders are a party, or by which they may be bound, nor will
any
consents or authorizations of any party other than those hereto be required,
(b)
an event that would cause ISSUER to be liable to any party, or (c) an event
that
would result in the creation or imposition of any lien, charge or encumbrance
on
any asset of ISSUER or upon the securities of ISSUER to be acquired by
GI.
(f) Full
Disclosure.
None of
representations and warranties made by the ISSUER herein or in any certificate
or memorandum furnished or to be furnished by the ISSUER contains or will
contain any untrue statement of a material fact, or omit to state any material
fact the omission of which would be misleading under the circumstances under
which it was or is made.
(g) Contracts
and Leases.
ISSUER
is not currently carrying on any business and is not a party to any contract,
agreement or lease. No person holds a power of attorney from
ISSUER.
(h) Compliance
with Laws.
To the
best of its knowledge, ISSUER is not in material violation of any federal,
state, or local statute, law, rule and/or regulation.
(i) Litigation.
ISSUER
is not (and has not been) a party to any suit, action, arbitration, or legal,
administrative, or other proceeding, or pending governmental investigation.
To
the best knowledge of ISSUER, there is no basis for any such action or
proceeding and no such action or proceeding is threatened against ISSUER and
is
not subject to or in default with respect to any order, writ, injunction, or
decree of any federal, state, local, or foreign court, department, agency,
or
instrumentality.
(j) Conduct
of Business.
Prior
to the Closing, ISSUER shall conduct its business in the normal course, and
shall not (i) sell, pledge, or assign any assets (ii) amend its Articles of
Incorporation or Bylaws, (ii) declare dividends, redeem or sell stock or other
securities, (iv) incur any liabilities, (v) acquire or dispose of any assets,
enter into any contract, guarantee obligations of any third party, or (vi)
enter
into any other transaction.
(k) Corporate
Documents.
Copies
of each of the following documents of ISSUER, which are true, complete and
correct in all material respects, have been or will be delivered to GI at or
prior to the Closing:
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(i)
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Articles
of Incorporation;
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(ii)
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Bylaws;
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(iii)
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Minutes
of Shareholders Meetings; and
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(iv)
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Minutes
of Directors Meetings.
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(l) Validity
of Documents.
All
minutes, consents or other documents pertaining to ISSUER to be delivered at
or
prior to closing shall be valid and in accordance with the laws of the State
of
Florida.
(m) Title
to Shares.
The
shares to be issued pursuant to this Agreement will be, at closing, free and
clear of all liens, security interests, pledges, charges, claims, encumbrances
and restrictions of any kind. None of such 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 such shares and, except as provided in
this Agreement, ISSUER is not a party to any agreement which offers or grants
to
any person the right to purchase or acquire any securities of ISSUER. There
is
no applicable local, state or federal law, rule, regulation, or decree which
would, as a result of the issuance of the shares, impair, restrict or delay
any
voting rights with respect to the shares.
(n) Legal
Counsel.
In
connection with this Agreement and the transactions contemplated hereby, ISSUER
has sought and received the advice of independent legal counsel and warrants
that Levy & Boonshoft, P.C. has not acted as ISSUER’s counsel in any manner
whatsoever.
3. REPRESENTATIONS
AND WARRANTIES OF ACQUIREE.
CT and
GI represent and warrant to ISSUER, and covenant and agree with ISSUER, as
follows:
(a) Organization.
CT is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Nevada and has all the necessary corporate powers to own
properties and carry on its business.
(b) Ability
to Enter Into Agreement and Carry Out Obligations.
CT has
the
right, power, and authority to enter into and perform its obligations under
this
Agreement. This Agreement and the transactions contemplated hereby have been
approved by all necessary corporate action of CT.
(c) Legal
Counsel.
In
connection with this Agreement and the transactions contemplated hereby, CT
and
GI has sought and received the advice of independent legal counsel and warrants
that Xxxx X. Xxxxxxx has not acted as CT’s or GI’s counsel in any manner
whatsoever.
(d) No
Reverse Spit or Dilution.
For a
period of one year, CT will not approve a reverse split in the stock of ISSUER
no dilute the former shareholders holdings in ISSUER.
4. DOCUMENTS
TO BE DELIVERED AT CLOSING.
(a) By
ISSUER:
(i) Board
of
Directors Minutes authorizing the issuance of a certificate or certificates
for
the Shares to be issued pursuant to this Agreement.
(ii) The
written resignations of the current officers and directors of ISSUER.
(iii) A
Board
of Directors resolution appointing the following as the new directors of
ISSUER:
(iv) All
of
the business and corporate records of ISSUER, including but not limited to
correspondence files, bank statements, checkbooks, savings account books,
minutes of shareholder and directors meetings, financial statements, shareholder
listings, stock transfer records, agreements and contracts.
(v) A
certificate representing 75,000,000 shares of common stock of ISSUER containing
a restrictive legend issued to GI.
(b) By
ACQUIREE:
(i) Delivery
to ISSUER, or to its Transfer Agent, of certificates representing 100% of the
issued and outstanding shares of common stock of CT.
5. CONDITIONS
PRECEDENT TO OBLIGATIONS OF ISSUER The
obligations of ISSUER under this Agreement are subject to the satisfaction,
at
or before the Closing, of the following conditions:
(a) Accuracy
of Representations; Performance.
The
representations and warranties made by ACQUIREE in this Agreement were true
when
made and shall be true at the date of the Closing (“Closing Date”) with the same
force and effect as if such representations and warranties were made at and
as
of the Closing (except for changes therein permitted by this Agreement), and
ACQUIREE shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by ACQUIREE prior
to
or at the Closing. ISSUER may request to be furnished with a certificate, signed
by a duly authorized officer of ACQUIREE and dated the Closing, to the foregoing
effect.
(b) Officer’s
Certificates.
ISSUER
shall have been furnished with a certificate dated the Closing Date and signed
by a duly authorized officer of ACQUIREE to the effect that no litigation,
proceeding, investigation, or inquiry is pending or, to the best knowledge
of
ACQUIREE threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the ACQUIREE Schedules, by or against ACQUIREE which
might result in any material adverse change in any of the assets, properties,
business, or operations of ACQUIREE.
(c) No
Material Adverse Change.
Prior
to the Closing Date, there shall not have occurred any material adverse change
in the financial condition, business, or operations of ACQUIREE, nor shall
any
event have occurred which, with the lapse of time or the giving of notice,
may
cause or create any material adverse change in the financial condition,
business, or operations.
(d) Other
Items.
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(i)
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ISSUER
shall have received such further documents, certificates, or instruments
relating to the transactions contemplated hereby as ISSUER may reasonably
request.
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(ii)
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Complete
and satisfactory due diligence review of ACQUIREE by ISSUER.
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(iii)
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Approval
of the Transaction by the ACQUIREE Board and the GI
shareholders.
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(iv)
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Any
necessary third-party consents shall be obtained prior to Closing,
including but not limited to consents necessary from ACQUIREE’s lenders,
creditors, vendors and lessors.
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6. CONDITIONS
PRECEDENT TO OBLIGATIONS OF ACQUIREE The
obligations of ACQUIREE under this Agreement are subject to the satisfaction,
at
or before the Closing, of the following conditions:
(a) Accuracy
of Representations; Performance.
The
representations and warranties made by ISSUER in this Agreement were true when
made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date, and
ISSUER shall have performed and complied with all covenants and conditions
required by this Agreement to be performed or complied with by ISSUER prior
to
or at the Closing. ACQUIREE shall have been furnished with a certificate, signed
by a duly authorized executive officer of ISSUER and dated the Closing Date,
to
the foregoing effect.
(b) Officer’s
Certificate.
ACQUIREE shall have been furnished with a certificate dated the Closing Date
and
signed by a duly authorized executive officer of ISSUER to the effect that
no
litigation, proceeding, investigation, or inquiry is pending or, to the best
knowledge of ISSUER threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this
Agreement.
(c) No
Material Adverse Change.
Prior
to the Closing Date, there shall not have occurred any material adverse change
in the financial condition, business, or operations of ISSUER nor shall any
event have occurred which, with the lapse of time or the giving of notice,
may
cause or create any material adverse change in the financial condition,
business, or operations of ISSUER.
(d) Good
Standing.
ISSUER
shall have received a certificate of good standing from the Secretary of State
of the State of Florida or other appropriate office, dated as of a date within
ten days prior to the Closing Date certifying that ISSUER is in good standing
as
a corporation in the State of Florida and has filed all tax returns required
to
have been filed by it to date and has paid all taxes reported as due
thereon.
(e) Other
Items.
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(i)
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ACQUIREE
shall have received a stockholder list of ISSUER containing the name,
address, and number of shares held by each ISSUER stockholder as
of the
date of Closing certified by an executive officer of ISSUER as being
true,
complete, and accurate.
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(ii)
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ACQUIREE
shall have received such further documents, certificates, or instruments
relating to the transactions contemplated hereby as ACQUIREE may
reasonably request.
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(iii)
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Complete
and satisfactory due diligence review of ISSUER by
ACQUIREE.
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(iv)
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Approval
of the Transaction by the ISSUER’s Board and the stockholders of
ISSUER.
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(v)
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There
shall have been no material adverse changes in ISSUER, financial
or
otherwise.
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(vi)
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As
of immediately prior to the Closing, ISSUER shall have no assets,
no
liabilities, contingent or otherwise (other than certain liabilities
which
in no event shall exceed in the aggregate $5,000), and no net worth,
as
determined in accordance with generally accepted accounting
principles.
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(vii)
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At
the Closing, the authorized capitalization of ISSUER shall consist
of (1)
200,000,000 shares of ISSUER Stock, of which 100,000,000 shares,
shall be
issued and outstanding immediately after the Closing; and (2) no
shares of
preferred stock shall be issued and
outstanding.
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(viii)
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Except
as set forth herein, there shall be no ISSUER Common Stock Equivalents
outstanding as of immediately prior to the Closing. For purposes
of the
foregoing, “ISSUER Common Stock Equivalents” shall mean any subscriptions,
warrants, options or other rights or commitments of any character
to
subscribe for or purchase from ISSUER, or obligating ISSUER to issue,
any
shares of any class of the capital stock of ISSUER or any securities
convertible into or exchangeable for such
shares.
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(ix)
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Although
ISSUER shall be the surviving corporation in the Transaction from
a
corporate law perspective, the Transaction shall be accounted for
as a
“reverse acquisition” for accounting and financial statement purposes,
wherein CT shall be deemed the surviving
entity for such purposes.
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(x)
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Any
necessary third-party consents shall be obtained prior to Closing,
including but not limited to consents necessary from ISSUER’s lenders,
creditors, vendors, and lessors.
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7. TERMINATION
OF AGREEMENT.
Either
party may terminate this Agreement and the consummation of the transactions
contemplated hereby without liability to the other party upon the occurrence
of
any of the following:
(a) Any
representation or warranty of the other party shall prove to be materially
inaccurate.
(b) The
other
party shall fail for any reason to perform in all material respects its
covenants and agreements to be performed prior to closing or shall breach in
any
material respect any of its covenants and agreements hereunder.
8. MISCELLANEOUS
PROVISIONS.
(a) Expenses.
Each
party shall bear all of the legal, accounting and other costs and expenses
incurred by it in connection with the negotiation, preparation, execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby.
(b) Further
Assurances.
From
and after the date of this Agreement, each of the parties shall cooperate with
one another, shall do and perform such actions and things, and shall execute
and
deliver such documents and instruments, as may be reasonable and necessary
to
effectuate the purposes and intents of this Agreement.
(c) Governing
Law.
This
Agreement shall be governed by, and shall be construed and interpreted in
accordance with, the laws of the State of Florida without regard to conflict
or
choice of law principles. Jurisdiction and venue for any action and/or
proceeding relating to or arising out of this Agreement or otherwise shall
be
brought exclusively in the state courts located in Miami-Dade County, Florida.
The prevailing party in any such action and/or proceeding shall be entitled
to
recover its reasonable attorney’s fees and costs from the other party.
(d) Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all prior agreements, understandings,
negotiations and arrangements, both oral and written, between the parties with
respect to such subject matter. This Agreement may not be amended or modified
in
any manner, except by a written instrument executed by each of the parties
hereto.
(e) Benefits;
Binding Effect.
This
Agreement shall be for the benefit of, and shall be binding upon, the parties
and their respective successors and assigns.
(f) No
Waivers.
The
waiver by either party of a breach or violation of any provision of this
Agreement by the other party shall not operate nor be construed as a waiver
of
any subsequent breach or violation. The waiver by either party to exercise
any
right or remedy it may possess shall not operate nor be construed as a bar
to
the exercise of such right or remedy by such party upon the occurrence of any
subsequent breach or violation.
(g) Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of any or all of the
provisions hereof.
(h) Counterparts;
Telecopier.
This
Agreement may be executed in any number of counterparts and by the separate
parties in separate counterparts, and via telecopier, each of which shall be
deemed to constitute an original and all of which shall be deemed to constitute
the one and the same instrument.
(i) Confidentiality.
ISSUER,
on the one hand, and ACQUIREE, on the other hand, will keep confidential all
information and materials regarding the other Party designated by such Party
as
confidential. The provisions of this section shall not apply to any information
which is or shall become part of the public domain through no fault of the
Party
subject to the obligation from a third party with a right to disclose such
information free of obligation of confidentiality. ISSUER and ACQUIREE agree
that no public disclosure will be made by either Party of the existence of
the
Transaction or the letter of intent or any of its terms without first advising
the other Party and obtaining its prior written consent to the proposed
disclosure, unless such disclosure is required by law, regulation or stock
exchange rule.
(j) Survival.
The
representations and warranties of the respective parties shall not survive
the
Closing Date and the consummation of the transactions herein
contemplated.
(k) Amendment.
At any
time prior to the Closing Date, this Agreement may be amended by a writing
signed by all parties hereto, with respect to any of the terms contained herein,
and any term or condition of this Agreement may be waived or the time for
performance hereof may be extended by a writing signed by the party or parties
for whose benefit the provision is intended.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
IN
WITNESS WHEREOF,
each of
the undersigned has executed and delivered this Agreement on the date first
written above.
IPMC
HOLDINGS CORP. GRIFCO
INTERNATIONAL, INC.
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/s/
Xxxxx Xxxx
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By: _________________________________
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By:________________________________
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Xxxxxx
Xxxxxxxxx, President
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Xxxxx
Xxxx, Chief Executive Officer
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COIL
TUBING TECHNOLOGIES,
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INCORPORATED
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/s/
Xxxxx Xxxx
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By:________________________________
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Xxxxx
Xxxx, President
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