STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE by and among Expedite 2, Inc. a Delaware Corporation and John Bordynuik, Inc. An Ontario Corporation effective as of February 10, 2009
Exhibit 2.1
by and
among
Expedite
2, Inc.
a
Delaware Corporation
and
▇▇▇▇
▇▇▇▇▇▇▇▇▇, Inc.
An
Ontario Corporation
effective
as of February 10, 2009
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 10th day of
February, 2009 (the “Agreement”), by and
among Expedite 2, Inc., a Delaware corporation (“Expedite”) with its
principal executive offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇; ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Inc. (“JBI”), an Ontario Corporation with its principle
places of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, and the
shareholders of JBI named on the signature page of this Agreement (individually,
a “Stockholder”, and
collectively, the “Stockholders”).
Premises
A. This
Agreement provides for the acquisition of JBI whereby JBI shall become a wholly
owned subsidiary of EXPEDITE and in connection therewith
B. The boards
of directors of JBI and EXPEDITE have determined, subject to the terms and
conditions set forth in this Agreement, that the transaction contemplated hereby
is desirable and in the best interests of their stockholders,
respectively. This Agreement is being entered into for the purpose of
setting forth the terms and conditions of the proposed acquisition.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived here from, it is hereby agreed as
follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
▇▇▇▇
▇▇▇▇▇▇▇▇▇, INC.
As an inducement to and to obtain the
reliance of EXPEDITE, JBI represents and warrants as follows:
Section 1.1 Organization. JBI is a
corporation duly organized, validly existing, and in good standing under the
laws of province of Ontario and has the corporate power and is duly authorized,
qualified, franchised and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign corporation in
the jurisdiction in which the character and location of the assets owned by it
or the nature of the business transacted by it requires qualification. Included
in the Schedules attached hereto (hereinafter defined) are complete and correct
copies of the articles of incorporation, bylaws and amendments thereto as in
effect on the date hereof. The execution and delivery of this Agreement does not
and the consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not violate any provision of JBI's
articles of incorporation or bylaws. JBI has full power, authority and legal
right and has taken all action required by law, its articles of incorporation,
its bylaws or otherwise to authorize the execution and delivery of this
Agreement.
2
Section
1.2 Capitalization. The
authorized Capitalization of JBI consists of 1,000,000 Common Shares, $0.0001
par value per share and no Preferred Shares. As of the date hereof,
JBI has 234,085 shares of common stock outstanding.
All issued and outstanding shares are
legally issued, fully paid and nonassessable and are not issued in violation of
the preemptive or other rights of any person. JBI has no securities,
warrants or options authorized or issued.
Section
1.3
Subsidiaries. JBI
has no subsidiaries.
Section 1.4 Tax Matters: Books
and Records.
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(a) The
books and records, financial and others, of JBI are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) JBI
has no liabilities with respect to the payment of any country, federal,
state, county, or local taxes (including any deficiencies, interest or
penalties).
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(c) JBI
shall remain responsible for all debts incurred by JBI prior to the date
of closing.
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Section
1.5 Litigation and
Proceedings. There are no actions, suits, proceedings or
investigations pending or threatened by or against or affecting JBI or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign or before any arbitrator of any kind
that would have a material adverse affect on the business, operations, financial
condition or income of JBI. JBI is not in default with respect to any
judgment, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section
1.6 Material Contract
Defaults. JBI is not in default in any material respect under
the terms of any outstanding contract, agreement, lease or other commitment
which is material to the business, operations, properties, assets or condition
of JBI, and there is no event of default in any material respect under any such
contract, agreement, lease or other commitment in respect of which JBI has not
taken adequate steps to prevent such a default from occurring.
Section
1.7
Information. The information concerning JBI as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made in
light of the circumstances under which they were made, not
misleading.
3
Section
1.8 Title and
Related Matters. JBI has good and marketable title to and is
the sole and exclusive owner of all of its properties, inventory, interest in
properties and assets, real and personal (collectively, the “Assets”) free and
clear of all liens, pledges, charges or encumbrances. JBI owns free
and clear of any liens, claims, encumbrances, royalty interests or other
restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with JBI business. No third
party has any right to, and JBI has not received any notice of infringement of
or conflict with asserted rights of other with respect to any product,
technology, data, trade secrets, know-how, proprietary techniques, trademarks,
service marks, trade names or copyrights which, singly on in the aggregate, if
the subject of an unfavorable decision ruling or finding, would have a
materially adverse affect on the business, operations, financial conditions or
income of JBI or any material portion of its properties, assets or
rights.
Section
1.9
Contracts. On the closing date:
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(a) There
are no material contracts, agreements franchises, license agreements, or
other commitments to which JBI is a party or by which it or any of its
properties are bound:
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(b) JBI
is not a party to any contract, agreement, commitment or instrument or
subject to any charter or other corporate restriction or any judgment,
order, writ, injunction, decree or award materially and adversely affects,
or in the future may (as far as JBI can now foresee) materially and
adversely affect, the business, operations, properties, assets or
conditions of JBI; and
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(c) JBI
is not a party to any material oral or written: (I) contract for the
employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension benefit or
retirement plan, agreement or arrangement covered by Title IV of the
Employee Retirement Income Security Act, as amended;
(iii) agreement, contract or indenture relating to the
borrowing of money; (iv) guaranty of any obligation for the borrowing of
money or otherwise, excluding endorsements made for collection and other
guaranties, of obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than one year
or providing for payments in excess of $10,000 in the aggregate; (vi)
collective bargaining agreement; (vii) contract, agreement or other
commitment involving payments by it for more than $10,000 in the
aggregate.
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Section 1.10 Compliance
With Laws and Regulations. To the best of JBI’s knowledge and
belief, JBI has complied with all applicable statutes and regulations of any
federal, state or other governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of JBI or would not result
in JBI incurring material liability.
Section
1.11 Insurance. All
of the insurable properties of JBI are insured for JBI‘s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage and
will be outstanding and in full force at the Closing Date.
Section
1.12 Approval of
Agreement. The directors of JBI have authorized the execution
and delivery of the Agreement by and have approved the transactions contemplated
hereby.
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Section 1.13 Material
Transactions or Affiliations. There are no material contracts
or agreements of arrangement between JBI and any person, who was at the time of
such contract, agreement or arrangement an officer, director or person owning of
record, or known to beneficially own ten percent (10%) or more of the issued and
outstanding Common Shares of JBI and which is to be performed in whole or in
part after the date hereof. JBI has no commitment, whether written or
oral, to lend any funds to, borrow any money from or enter into material
transactions with any such affiliated person.
Section
1.14 No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which JBI is a party or to which any of its
properties or operations are subject.
Section
1.15 Governmental
Authorizations. JBI has all licenses, franchises, permits or
other governmental authorizations legally required to enable it to conduct its
business in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
JBI of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
EXPEDITE
2, INC.
As an inducement to, and to obtain the
reliance of JBI, EXPEDITE represents and warrants as follows:
Section
2.1 Organization. EXPEDITE
is a corporation duly organized, validly existing and in good standing under the
laws of Delaware and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires
qualification. Included in the Attached Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of EXPEDITE's certificate of incorporation or
bylaws. EXPEDITE has full power, authority and legal right and has
taken all action required by law, its articles of incorporation, bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
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Section
2.2 Capitalization. The
authorized Capitalization of EXPEDITE consists of 100,000,000 Common Shares,
$0.0001 par value per share and 10,000,000 Preferred Shares, par value
$0.0001. As of the date of the merger agreement, there were 100,000
common shares outstanding.
All issued and outstanding common
shares have been legally issued, fully paid, are nonassessable and not issued in
violation of the preemptive rights of any other person. EXPEDITE has
no other securities, warrants or options authorized or issued.
Section
2.3 Subsidiaries. EXPEDITE
has no subsidiaries.
Section
2.4 Tax
Matters; Books & Records
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(a) The
books and records, financial and others, of EXPEDITE are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) EXPEDITE
has no liabilities with respect to the payment of any country, federal,
state, county, local or other taxes (including any deficiencies, interest
or penalties).
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(c) EXPEDITE
shall remain responsible for all debts incurred prior to the
closing.
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Section
2.5 Information. The
information concerning EXPEDITE as set forth in this Agreement and in the
attached Schedules is complete and accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the circumstances under
which they were made, not misleading.
Section
2.6 Title and Related
Matters. EXPEDITE has good and marketable title to and
is the sole and exclusive owner of all of its properties, inventory, interests
in properties and assets, real and personal (collectively, the "Assets") free
and clear of all liens, pledges, charges or encumbrances. Except as
set forth in the Schedules attached hereto, EXPEDITE owns free and clear of any
liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized in
connection with EXPEDITE's business. Except as set forth in the
attached Schedules, no third party has any right to, and EXPEDITE has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of EXPEDITE or any material portion
of its properties, assets or rights.
Section
2.7 Litigation and
Proceedings. There are no actions, suits or proceedings
pending or threatened by or against or affecting EXPEDITE, at law or in equity,
before any court or other governmental agency or instrumentality, domestic or
foreign or before any arbitrator of any kind that would have a material adverse
effect on the business, operations, financial condition, income or business
prospects of EXPEDITE. EXPEDITE does not have any knowledge of any
default on its part with respect to any judgment, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator or governmental
agency or instrumentality.
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Section
2.8 Contracts. On
the Closing Date:
(a) There
are no material contracts, agreements, franchises, license agreements, or other
commitments to which EXPEDITE is a party or by which it or any of its properties
are bound;
(b) EXPEDITE
is not a party to any contract, agreement, commitment or instrument or subject
to any charter or other corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely affects, or in the
future may (as far as EXPEDITE can now foresee) materially and adversely affect,
the business, operations, properties, assets or conditions of EXPEDITE;
and
(c)
EXPEDITE is not a party to any material oral or written: (i) contract
for the employment of any officer or employee; (ii) profit sharing,
bonus, deferred compensation, stock option, severance pay, pension, benefit or
retirement plan, agreement or arrangement covered by Title IV of the Employee
Retirement Income Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding endorsements made
for collection and other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other contract with an
unexpired term of more than one year or providing for payments in excess of
$10,000 in the aggregate; (vi) collective bargaining
agreement; (vii) contract, agreement, or other commitment involving payments by
it for more than $10,000 in the aggregate.
Section
2.9 No Conflict With Other
Instruments. The execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the breach of any
term or provision of, or constitute an event of default under, any material
indenture, mortgage, deed of trust or other material contract, agreement or
instrument to which EXPEDITE is a party or to which any of its properties or
operations are subject.
Section
2.10 Material Contract
Defaults. To the best of EXPEDITE's knowledge and
belief, it is not in default in any material respect under the terms of any
outstanding contract, agreement, lease or other commitment which is material to
the business, operations, properties, assets or condition of EXPEDITE, and there
is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which EXPEDITE has not taken
adequate steps to prevent such a default from occurring.
Section
2.11 Governmental
Authorizations. To the best of EXPEDITE’s knowledge,
EXPEDITE has all licenses, franchises, permits and other governmental
authorizations that are legally required to enable it to conduct its business
operations in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities or
corporation laws, no authorization, approval, consent or order of, or
registration, declaration or filing with, any court or other governmental body
is required in connection with the execution and delivery by EXPEDITE of the
transactions contemplated hereby.
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Section 2.12 Compliance With Laws and
Regulations. To the best of EXPEDITE's knowledge and belief,
EXPEDITE has complied with all applicable statutes and regulations of any
federal, state or other governmental entity or agency thereof, except to the
extent that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of EXPEDITE or would not
result in EXPEDITE's incurring any material liability.
Section
2.13 Insurance. All of
the insurable properties of EXPEDITE are insured for EXPEDITE‘s benefit under
valid and enforceable policy or policies containing substantially equivalent
coverage and will be outstanding and in full force at the Closing
Date.
Section
2.14 Approval of
Agreement. The directors of EXPEDITE have authorized the
execution and delivery of the Agreement and have approved the transactions
contemplated hereby.
Section
2.15 Material Transactions or
Affiliations. As of the Closing Date, there will
exist no material contract, agreement or arrangement between EXPEDITE and any
person who was at the time of such contract, agreement or arrangement an
officer, director or person owning of record, or known by EXPEDITE to own
beneficially, ten percent (10%) or more of the issued and outstanding Common
Shares of EXPEDITE and which is to be performed in whole or in part after the
date hereof except with regard to an agreement with the EXPEDITE shareholders
providing for the distribution of cash to provide for payment of federal and
state taxes on Subchapter S income. EXPEDITE has no commitment,
whether written or oral, to lend any funds to, borrow any money from or enter
into any other material transactions with, any such affiliated
person.
ARTICLE
III
EXCHANGE
PROCEDURE AND OTHER CONSIDERATION
Section
3.1 Share Exchange/Delivery of EXPEDITE
Securities.On the Closing Date, the holders of all of the JBI Common
Shares shall deliver to EXPEDITE (i) certificates or other documents evidencing
all of the issued and outstanding JBI Common Shares, duly endorsed in blank or
with executed power attached thereto in transferable form. On the
Closing Date, all previously issued and outstanding Common Shares of JBI shall
be transferred to EXPEDITE, so that JBI shall become a wholly owned subsidiary
of EXPEDITE.
Section
3.2 Issuance of EXPEDITE
Common Shares. In exchange for EXPEDITE acquiring all of the
JBI Common Shares tendered pursuant to Section 3.1, EXPEDITE shall issue to the
JBI shareholders a total of 58,521,000 shares of EXPEDITE common stock according
to Schedule A. Such shares are restricted in accordance with Rule 144
of the 1933 Securities Act.
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Section
3.3 Events Prior to
Closing. Upon execution hereof or as soon thereafter as
practical, management of JBI and EXPEDITE shall execute, acknowledge and deliver
(or shall cause to be executed, acknowledged and delivered) any and all
certificates, opinions, financial statements, schedules, agreements, resolutions
rulings or other instruments required by this Agreement to be so delivered,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby, subject only to the conditions to Closing
referenced herein below.
Section
3.4 Closing. The closing
("Closing") of the transactions contemplated by this Agreement shall be February
10, 2009.
Section
3.5 Termination.
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(a) This
Agreement may be terminated by the board of directors or majority interest
of Shareholders of either JBI or EXPEDITE, respectively, at any time prior
to the Closing Date if:
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(i) there
shall be any action or proceeding before any court or any governmental
body which shall seek to restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the judgment of such board of
directors, made in good faith and based on the advice of its legal
counsel, makes it inadvisable to proceed with the exchange contemplated by
this Agreement; or
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(ii) any
of the transactions contemplated hereby are disapproved by any regulatory
authority whose approval is required to consummate such
transactions.
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In the event of termination pursuant to this paragraph (a) of this Section 3.5,
no obligation, right, or liability shall arise hereunder and each party shall
bear all of the expenses incurred by it in connection with the negotiation,
drafting and execution of this Agreement and the transactions herein
contemplated.
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(b) This
Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of JBI if EXPEDITE shall fail to comply
in any material respect with any of its covenants or agreements contained
in this Agreement or if any of the representations or warranties of
EXPEDITE contained herein shall be inaccurate in any material respect,
which noncompliance or inaccuracy is not cured after 20 days written
notice thereof is given to EXPEDITE. If this Agreement is
terminated pursuant to this paragraph (b) of this Section 3.5, this
Agreement shall be of no further force or effect and no obligation, right
or liability shall arise hereunder.
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(c) This
Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of EXPEDITE if JBI shall fail to comply
in any material respect with any of its covenants or agreements contained
in this Agreement or if any of the representations or warranties of JBI
contained herein shall be inaccurate in any material respect, which
noncompliance or inaccuracy is not cured after 20 days written notice
thereof is given to JBI. If this Agreement is terminated
pursuant to this paragraph (d) of this Section 3.5, this Agreement shall
be of no further force or effect and no obligation, right or liability
shall arise hereunder.
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In the event of termination pursuant to paragraph (b) and (c) of this Section
3.5, the breaching party shall bear all of the expenses incurred by the other
party in connection with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated.
Section
3.6 Directors of EXPEDITE After
Acquisition. After the Closing Date, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall
remain the only member of the Board of Directors of EXPEDITE. Each
director shall hold office until his successor shall have been duly elected and
shall have qualified or until his earlier death, resignation or
removal.
Section
3.7 Officers of EXPEDITE.
Upon the closing, the following persons shall remain the
officers of EXEPDITE:
| NAME | OFFICE |
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▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Chief
Executive Officer, President and Chief Financial
Officer
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ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1 Access to Properties and
Records. Prior to closing, JBI and EXPEDITE will each
afford to the officers and authorized representatives of the other full access
to the properties, books and records of each other, in order that each may have
full opportunity to make such reasonable investigation as it shall desire to
make of the affairs of the other and each will furnish the other with such
additional financial and operating data and other information as to the business
and properties of each other, as the other shall from time to time reasonably
request.
Section
4.2 Availability of Rule
144. JBI and EXPEDITE shareholders holding "restricted
securities, " as that term is defined in Rule 144 promulgated pursuant to the
Securities Act will remain as “restricted securities”. JBI is under
no obligation to register such shares under the Securities Act, or otherwise.
The stockholders of JBI and EXPEDITE holding restricted securities of JBI and
EXPEDITE as of the date of this Agreement and their respective heirs,
administrators, personal representatives, successors and assigns, are intended
third party beneficiaries of the provisions set forth herein. The
covenants set forth in this Section 4.2 shall survive the Closing and the
consummation of the transactions herein contemplated.
Section
4.3 Special Covenants and Representations
Regarding the JBI Common Shares to be Issued in the
Exchange. The consummation of this Agreement, including the
issuance of the JBI Common Shares to the Shareholders of EXPEDITE as
contemplated hereby, constitutes the offer and sale of securities under the
Securities Act, and applicable state statutes. Such transaction shall
be consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, inter alia, upon the
circumstances under which the EXPEDITE Shareholders acquire such
securities.
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Section
4.4 Third Party
Consents. JBI and EXPEDITE agree to cooperate with each
other in order to obtain any required third party consents to this Agreement and
the transactions herein contemplated.
Section
4.5 Actions Prior and Subsequent to
Closing.
(a) From
and after the date of this Agreement until the Closing Date, except as permitted
or contemplated by this Agreement, JBI and EXPEDITE will each use its best
efforts to:
(i)
maintain and keep its properties in states of good repair and condition as
at present, except for depreciation due to ordinary wear and tear and damage due
to casualty;
(ii)
maintain in full force and effect insurance comparable in amount and in scope of
coverage to that now maintained by it;
(iii)
perform in all material respects all of its obligations under material
contracts, leases and instruments relating to or affecting its assets,
properties and business;
(b) From and
after the date of this Agreement until the Closing Date, JBI will not, without
the prior consent of EXPEDITE:
(i)
except as otherwise specifically set forth herein, make any change in its
articles of incorporation or bylaws;
(ii)
declare or pay any dividend on its outstanding Common Shares, except as may
otherwise be required by law, or effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii)
enter into or amend any employment, severance or agreements or arrangements with
any directors or officers;
(iv)
grant, confer or award any options, warrants, conversion rights or other rights
not existing on the date hereof to acquire any Common Shares; or
(v)
purchase or redeem any Common Shares.
Section
4.6
Indemnification.
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(a) JBI
hereby agrees to indemnify EXPEDITE, each of the officers, agents and
directors and current shareholders of EXPEDITE as of the Closing Date
against any loss, liability, claim, damage or expense (including, but not
limited to, any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened or any claim whatsoever), to which it or they may become
subject to or rising out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement. The indemnification
provided for in this paragraph shall survive the Closing and consummation
of the transactions contemplated hereby and termination of this Agreement;
and
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(b) EXPEDITE
hereby agrees to indemnify JBI, each of the officers, agents, directors
and current shareholders of JBI as of the Closing Date against any loss,
liability, claim, damage or expense (including, but not limited to, any
and all expense whatsoever reasonably incurred in investigating, preparing
or defending against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentation made in this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this
Agreement.
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF JBI
The obligations of JBI under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 5.1
Accuracy of
Representations. The representations and warranties made by
JBI in this Agreement were true when made and shall be true at the Closing Date
with the same force and effect as if such representations and warranties were
made at the Closing Date (except for changes therein permitted by this
Agreement), and JBI shall have performed or compiled with all covenants and
conditions required by this Agreement to be performed or complied with by JBI
prior to or at the Closing. EXPEDITE shall be furnished with a
certificate, signed by a duly authorized officer of JBI and dated the Closing
Date, to the foregoing effect.
Section
5.2 Director Approval. The
Board of Directors of JBI shall have approved this Agreement and the
transactions contemplated herein.
Section
5.3 Officer's
Certificate. EXPEDITE shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
JBI to the effect that: (a) the representations and
warranties of JBI set forth in the Agreement and in all Exhibits, Schedules and
other documents furnished in connection herewith are in all material respects
true and correct as if made on the Effective Date; (b) JBI
has performed all covenants, satisfied all conditions, and complied with all
other terms and provisions of this Agreement to be performed, satisfied or
complied with by it as of the Effective Date; (c) since
such date and other than as previously disclosed to EXPEDITE, JBI has not
entered into any material transaction other than transactions which are usual
and in the ordinary course if its business; and (d) no
litigation, proceeding, investigation or inquiry is pending or, to the best
knowledge of JBI, 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 JBI Schedules, by or against JBI which might
result in any material adverse change in any of the assets, properties, business
or operations of JBI.
Section
5.4 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 nor shall any event have occurred which, with the lapse of time or
the giving of notice, may JBI use or create any material adverse change in the
financial condition, business or operations of JBI.
12
Section
5.5 Other
Items. EXPEDITE shall have received such further documents,
certificates or instruments relating to the transactions contemplated hereby as
EXPEDITE may reasonably request.
ARTICLE
VI
CONDITIONS PRECEDENT TO OBLIGATIONS
OF EXPEDITE
The obligations of EXPEDITE under this
Agreement are subject to the satisfaction, at or before the Closing date (unless
otherwise indicated herein), of the following conditions:
Section
6.1 Accuracy of
Representations. The representations and warranties made by
EXPEDITE 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 EXPEDITE shall have performed and complied with all
covenants and conditions required by this Agreement to be performed or complied
with by EXPEDITE prior to or at the Closing. JBI shall have been
furnished with a certificate, signed by a duly authorized executive officer of
EXPEDITE and dated the Closing Date, to the foregoing effect.
Section
6.2 Director
Approval. The Board of Directors of EXPEDITE shall have
approved this Agreement and the transactions contemplated herein.
Section
6.3 Officer's
Certificate. JBI shall be furnished with a certificate
dated the Closing date and signed by a duly authorized officer of EXPEDITE to
the effect that: (a) the representations and warranties of EXPEDITE
set forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; and (b) EXPEDITE had performed all covenants,
satisfied all conditions, and complied with all other terms and provisions of
the Agreement to be performed, satisfied or complied with by it as of the
Effective Date.
Section
6.4 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 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 EXPEDITE.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Brokers and
Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
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Section
7.2 Law, Forum and
Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey, United
States of America.
Section
7.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by prepaid telegram addressed as
follows:
|
If
to JBI:
|
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Road
|
|
If
to EXPEDITE:
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
|
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
telegraphed.
Section
7.4 Attorneys' Fees. In
the event that any party institutes any action or suit to enforce this Agreement
or to secure relief from any default hereunder or breach hereof, the breaching
party or parties shall reimburse the non-breaching party or parties for all
costs, including reasonable attorneys' fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered therein.
Section
7.5 Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent
such data is a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
Section
7.6 Schedules;
Knowledge. Each party is presumed to have full knowledge of
all information set forth in the other party's schedules delivered pursuant to
this Agreement.
Section
7.7 Third Party
Beneficiaries. This contract is solely between JBI and EXPEDITE and
except as specifically provided, no director, officer, stockholder, employee,
agent, independent contractor or any other person or entity shall be deemed to
be a third party beneficiary of this Agreement.
Section
7.8 Entire Agreement. This
Agreement represents the entire agreement between the parties relating to the
subject matter hereof. This Agreement alone fully and completely
expresses the agreement of the parties relating to the subject matter
hereof. There are no other courses of dealing, understanding,
agreements, representations or warranties, written or oral, except as set forth
herein. This Agreement may not be amended or modified, except by a
written agreement signed by all parties hereto.
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Section
7.9 Survival;
Termination. The representations, warranties and covenants of
the respective parties shall survive the Closing Date and the consummation of
the transactions herein contemplated for 18 months.
Section
7.10 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section
7.11 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 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.
Section
7.12 Expenses. Each
party herein shall bear all of their respective cost s and expenses incurred in
connection with the negotiation of this Agreement and in the consummation of the
transactions provided for herein and the preparation thereof.
Section
7.13 Headings; Context. The
headings of the sections and paragraphs contained in this Agreement are for
convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of this Agreement.
Section
7.14 Benefit. This Agreement
shall be binding upon and shall inure only to the benefit of the parties hereto,
and their permitted assigns hereunder. This Agreement shall not be
assigned by any party without the prior written consent of the other
party.
Section
7.15 Public
Announcements. Except as may be required by law, neither party shall
make any public announcement or filing with respect to the transactions provided
for herein without the prior consent of the other party hereto.
Section
7.16 Severability. In
the event that any particular provision or provisions of this Agreement or the
other agreements contained herein shall for any reason hereafter be determined
to be unenforceable, or in violation of any law, governmental order or
regulation, such unenforceability or violation shall not affect the remaining
provisions of such agreements, which shall continue in full force and effect and
be binding upon the respective parties hereto.
Section
7.17 Failure of Conditions;
Termination. In the event of any of the conditions specified
in this Agreement shall not be fulfilled on or before the Closing Date, either
of the parties have the right either to proceed or, upon prompt written notice
to the other, to terminate and rescind this Agreement. In such event,
the party that has failed to fulfill the conditions specified in this Agreement
will liable for the other parties legal fees. The election to proceed
shall not affect the right of such electing party reasonably to require the
other party to continue to use its efforts to fulfill the unmet
conditions.
15
Section
7.18 No Strict
Construction. The language of this Agreement shall be construed as a
whole, according to its fair meaning and intendment, and not strictly for or
against either party hereto, regardless of who drafted or was principally
responsible for drafting the Agreement or terms or conditions
hereof.
Section
7.19 Execution Knowing and
Voluntary. In executing this Agreement, the parties severally
acknowledge and represent that each: (a) has fully and carefully read
and considered this Agreement; (b) has been or has had the opportunity to be
fully apprized by its attorneys of the legal effect and meaning of this document
and all terms and conditions hereof; (c) is executing this Agreement
voluntarily, free from any influence, coercion or duress of any
kind.
Section
7.20
Amendment. At any time after the Closing Date, this
Agreement may be amended by a writing signed by both parties, 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.
Section
7.21 Conflict of
Interest. Both EXPEDITE and JBI understand that ▇▇▇▇▇▇
& ▇▇▇▇▇▇, LLP is representing both parties in this transaction which
represents a conflict of interest. Both EXPEDITE and JBI have the
right to different counsel due to this conflict of
interest. Notwithstanding the above, both EXPEDITE and JBI agree to
waive this conflict and have ▇▇▇▇▇▇ & Jaclin, LLP represent both parties in
the above-referenced transaction. Both EXPEDITE and JBI agree to hold
this law firm harmless from any and all liabilities that may occur or arise due
to this conflict.
16
IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
ATTEST:
EXPEDITE 2,
INC.
______________________________ By:_______________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
ATTEST:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
INC.
______________________________ By:_______________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
17
SIGNATURES
OF SHAREHOLDERS OF ▇▇▇▇
▇▇▇▇▇▇▇▇▇, INC.
__________________________
__________________________
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__________________________
__________________________
__________________________
__________________________
__________________________
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