SHARE EXCHANGE AGREEMENT by and among NXT Nutritionals Holdings, Inc. and NXT Nutritionals, Inc. and Shareholders of NXT Nutritionals, Inc. Dated as of February 12, 2009
Exhibit 2.1
by
and among
and
NXT
Nutritionals, Inc.
and
Shareholders
of NXT Nutritionals, Inc.
Dated
as of February 12, 2009
THIS
SHARE EXCHANGE AGREEMENT, dated as of the 12th day of
February, 2009 (the “Agreement”), by and
among NXT Nutritionals Holdings, Inc., a Delaware corporation (the “Company”); NXT
Nutritionals, a Delaware corporation (“NXT”); and the
shareholders of NXT as identified in Exhibit A to this Agreement (individually,
the “NXT
Shareholder,” and collectively, the “NXT Shareholders”).
The Company, NXT and the NXT Shareholders are collectively referred to herein as
the “Parties”.
WITNESSETH:
WHEREAS,
the Company is a publicly held corporation organized under the laws of the State
of Delaware with no significant operations;
WHEREAS,
NXT is a private company incorporated under the laws of Delaware;
WHEREAS, NXT has 22,480,000 shares of
capital stock issued and outstanding (the “NXT
Shares”), all of which are
held by the NXT Shareholders. Each NXT Shareholder is the record and beneficial
owner of the number of NXT Shares set forth adjacent such NXT Shareholder’s name
on Exhibit
A
hereto.
WHEREAS,
the Company desires to acquire from the NXT Shareholders, and the NXT
Shareholders desire to sell to the Company, the NXT Shares in exchange for the
issuance by the Company of an aggregate of 22,480,000 shares (the “Company Shares”) of
the common stock of the Company (the “Common Stock”) to the
NXT Shareholders on the terms and conditions set forth herein (the “Share
Exchange”).
WHEREAS,
after giving effect to the Share Exchange, there will be approximately
35,650,000 shares of Common Stock issued and outstanding.
WHEREAS,
the Parties intend, by executing this Agreement, to implement a tax-deferred
exchange of property governed by ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal
Revenue Code of 1986, as amended (the “Code”).
NOW,
THEREFORE, in consideration, of the promises and of the mutual representations,
warranties and agreements set forth herein, the parties hereto agree as
follows:
ARTICLE
I
THE
SHARE EXCHANGE
1.1 The Share
Exchange. Subject to
the terms and conditions of this Agreement, on the Closing Date (as hereinafter
defined):
(a) the Company shall issue and deliver to
the NXT Shareholders 22,480,000 authorized but unissued shares of Common Stock,
and
(b) the NXT
Shareholders agree to deliver to the Company duly endorsed certificates
representing the NXT Shares.
(c) ▇▇▇▇▇ ▇▇▇▇▇,
the Company’s sole officer, director and principal shareholders will cancel a
total number of 20,000,000 shares of the Company’s Common Stock.
1.2 Time and Place of
Closing. The closing (“Closing”) of the transactions contemplated by
this Agreement shall occur upon the exchange of the stock of the Company and NXT
as described in Section 1.1 herein. Such Closing shall take place at
a mutually agreeable time and place.
1.3 Closing
Events
. At the
Closing, the Company, NXT, and the NXT Shareholders shall execute, acknowledge,
and deliver (or shall ensure 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 at or prior to the Closing, 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.
1.4 Directors
of the Company at Closing.
On the Closing Date, ▇▇▇▇▇ ▇▇▇▇▇ shall resign from the board of directors of the
Company (the “Board of
Directors”), and the
following individuals shall be appointed to the Board of
Directors.
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇
1.5 Officer of
the Company at Closing. On the Closing Date, ▇▇▇▇▇
▇▇▇▇▇ shall resign from all the positions he held as an officer of the Company,
and the following individual shall be appointed to the offices of the
Company:
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|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇: President, Chief Executive Officer, Secretary
and Treasurer
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▇▇▇▇▇
▇▇▇▇▇▇▇: Chief Financial
Officer
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1.6 Tax
Consequences. It is
intended by the parties hereto that for United States income tax purposes, the
contribution and transfer of the NXT Shares by the Shareholder to the Company in
exchange for Company Shares constitutes a tax-deferred exchange within the
meaning of Section 351 of the Code.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to NXT and the NXT Shareholders that as of the
Closing Date:
2.1 Due
Organization and Qualification; Due Authorization.
(a) The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and operate
its respective business and properties and to carry on its business in the
places and in the manner as presently conducted or proposed to be conducted. The
Company is in good standing as a foreign corporation in each jurisdiction in
which the properties owned, leased or operated, or the business conducted, by it
requires such qualification except for any such failure, which when taken
together with all other failures, is not likely to have a material adverse
effect on the business of the Company.
(b) The Company does not own, directly or
indirectly, any capital stock, equity or interest in any corporation, firm,
partnership, joint venture or other entity.
(c) The Company has all requisite corporate
power and authority to execute and deliver this Agreement, and to consummate the
transactions contemplated hereby and thereby. The Company has taken all
corporate action necessary for the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby, and this Agreement
constitutes the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as may be affected by
bankruptcy, insolvency, moratoria or other similar laws affecting the
enforcement of creditors’ rights generally and subject to the qualification that
the availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought, equitable remedies is
subject to the discretion of the court before which any proceeding therefore may
be brought.
2.2 No
Conflicts or Defaults. The execution and delivery of
this Agreement by the Company and the consummation of the transactions
contemplated hereby do not and shall not (a) contravene the Certificate of
Incorporation or By-laws of the Company or (b) with or without the giving of
notice or the passage of time (i) violate, conflict with, or result in a breach
of, or a default or loss of rights under, any material covenant, agreement,
mortgage, indenture, lease, instrument, permit or license to which the Company
is a party or by which the Company is bound, or any judgment, order or decree,
or any law, rule or regulation to which the Company is subject, (ii) result in
the creation of, or give any party the right to create, any lien, charge,
encumbrance or any other right or adverse interest (“Liens”) upon any of the assets of the
Company, (iii) terminate or give any party the right to terminate, amend,
abandon or refuse to perform, any material agreement, arrangement or commitment
to which the Company is a party or by which the Company’s assets are bound, or
(iv) accelerate or modify, or give any party the right to accelerate or modify,
the time within which, or the terms under which, the Company is to perform any
duties or obligations or receive any rights or benefits under any material
agreement, arrangement or commitment to which it is a party.
2.3 Capitalization. The authorized capital stock of
the Company immediately prior to giving effect to the transactions contemplated
hereby consists of 250,000,000 shares of which 200,000,000 are Common Stock at
par value $.001 per share and 50,000,000 shares are preferred stock
at par value $.001 per share (“Preferred
Stock”). As of the date
hereof, there are 13,170,000 shares of Common Stock issued and outstanding after
the cancelation of 20,000,000 shares of common stock by the Company’s sole
officer and director, and no shares of Preferred Stock outstanding. All of the
outstanding shares of Common Stock are, and the Company Shares when issued in
accordance with the terms hereof, will be, duly authorized, validly issued,
fully paid and nonassessable, and have not been or, with respect to the Company
Shares will not be issued in violation of any preemptive right of stockholders.
There is no outstanding voting trust agreement or other contract, agreement,
arrangement, option, warrant, call, commitment or other right of any character
obligating or entitling the Company to issue, sell, redeem or repurchase any of
its securities, and there is no outstanding security of any kind convertible
into or exchangeable for Company Common Stock. The Company has not granted
registration rights to any person.
2.4 Financial
Statements. The
Company has provided NXT and the NXT Shareholders copies of the (i) balance
sheet of the Company at December 31, 2008, and the related statements of
operations, stockholders’ equity (deficit) and cash flows for the two fiscal
years of 2008 and 2007, including the notes thereto, as audited by ▇▇▇▇▇▇ and
Co., independent registered public accounting firm (the “Financial
Statements”). The
Financial Statements, together with the notes thereto, have been prepared in
accordance with U.S. generally accepted accounting principles applied on a basis
consistent throughout all periods presented. The Financial Statements present
fairly the financial position of the Company as of the date and for the periods
indicated. The books of account and other financial records of the Company have
been maintained in accordance with good business practices.
2.5 No Assets
or Liabilities. Except as set forth on the
Financial Statements, the Company does not have any (a) material assets of any
kind or (b) material liabilities or obligations, whether secured or unsecured,
accrued, determined, absolute or contingent, asserted or unasserted or
otherwise.
2.6 Taxes. The
Company has filed all United States federal, state, county and local returns and
reports which were required to be filed on or prior to the date hereof in
respect of all income, withholding, franchise, payroll, excise, property, sales,
use, value-added or other taxes or levies, imposts, duties, license and
registration
fees,
charges, assessments or withholdings of any nature whatsoever (together, “Taxes”), and has paid
all Taxes (and any related penalties, fines and interest) which have become due
pursuant to such returns or reports or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes (and any related
penalties, fines and interest) has not been fully discharged, the same have been
properly reflected as a liability on the books and records of the Company and
adequate reserves therefore have been established.
2.7 Indebtedness;
Contracts; No Defaults. Except as set forth in
Schedule
2.7, the Company has no
material instruments, agreements, indentures, mortgages, guarantees, notes,
commitments, accommodations, letters of credit or other arrangements or
understandings, whether written or oral, to which the Company is a
parry.
2.8 Real
Property. The Company
does not own or lease any real property.
2.9 Compliance
with Law. The Company
is in compliance with all applicable federal, state, local and foreign laws and
regulations relating to the protection of the environment and human health.
There are no claims, notices, actions, suits, hearings, investigations,
inquiries or proceedings pending or, to the knowledge of the Company, threatened
against the Company that are based on or related to any environmental matters or
the failure to have any required environmental permits, and there are no past or
present conditions that the Company has reason to believe are likely to give
rise to any material liability or other obligations of the Company under any
environmental laws.
2.10 Permits and
Licenses. The Company
has all certificates of occupancy, rights, permits, certificates, licenses,
franchises, approvals and other authorizations as are reasonably necessary to
conduct its respective business and to own, lease, use, operate and occupy its
assets, at the places and in the manner now conducted and operated, except those
the absence of which would not materially adversely affect its respective
business.
2.11 Litigation. There is no claim, dispute,
action, suit, proceeding or investigation pending or, to the knowledge of the
Company, threatened, against or affecting the business of the Company, or
challenging the validity or propriety of the transactions contemplated by this
Agreement, at law or in equity or admiralty or before any federal, state, local,
foreign or other governmental authority, board, agency, commission or
instrumentality, nor to the knowledge of the Company, has any such claim,
dispute, action, suit, proceeding or investigation been pending or threatened,
during the twelve month period preceding the date hereof. There is no
outstanding judgment, order, writ, ruling, injunction, stipulation or decree of
any court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or materially
affecting the business of the Company. The Company has not received any written
or verbal inquiry from any federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality concerning the possible
violation of any law, rule or regulation or any matter disclosed in respect of
its business.
2.12 Insurance. The Company does not currently
maintain any form of insurance.
2.13 Patents;
Trademarks and Intellectual Property Rights. The Company does not own or
possesses any patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses, information, Internet web site(s) or proprietary rights of
any nature.
2.14 SEC
Filings; Financial
Statements.
(a) The
Company has made available to NXT a correct and complete copy, or there has been
available on ▇▇▇▇▇, copies of each report, registration statement and definitive
proxy statement filed by the Company with the SEC for the 24 months prior to the
date of this Agreement (the “Company SEC
Reports”), which, to the Company’s knowledge, are all the forms, reports
and documents filed by the Company with the SEC for the 24 months prior to the
date of this Agreement. As of their respective dates, to the Company’s
knowledge, the Company SEC Reports: (i) were prepared in accordance and complied
in all material respects with the requirements
of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Company SEC Reports, and
(ii) did not at the time they were filed (and if amended or superseded by a
filing prior to the date of this Agreement then on the date of such filing and
as so amended or superceded) contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(b) To
the Company’s knowledge, each set of financial statements (including, in each
case, any related notes thereto) contained in the Company SEC Reports comply as
to form in all material respects with the published rules and regulations of the
SEC with respect thereto, were prepared in accordance with U.S. GAAP applied on
a consistent basis throughout the periods involved (except as may be indicated
in the notes thereto) and each fairly presents in all material respects the
financial position of the Company at the respective dates thereof and the
results of its operations and cash flows for the periods indicated, except that
the unaudited interim financial statements were or are subject to normal
adjustments which were not or are not expected to have a Material Adverse Effect
on the Company taken as a whole.
2.15 Over-the-Counter Bulletin
Board Quotation.
The Company’s Common Stock is quoted on the FINRA Over-the-Counter Electronic
Bulletin Board (“OTC
BB”). There is no action or proceeding pending or, to the Company’s
knowledge, threatened against the Company by NASDAQ or The Financial Industry
Regulatory Authority, Inc. ("FINRA") with respect to any intention by such
entities to prohibit or terminate the quotation of the Company’s Common Stock on
the OTC BB.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF NXT
NXT
represents and warrants to the Company as of the Closing:
3.1 Due
Organization and Qualification; Subsidiaries, Due Authorization.
(a) NXT is a corporation duly incorporated,
validly existing and in good standing under the laws of Delaware, with full
corporate power and authority to own, lease and operate its business and
properties and to carry on its business in the places and in the manner as
presently conducted or proposed to be conducted. NXT is in good standing as a
foreign corporation in each jurisdiction in which the properties owned, leased
or operated, or the business conducted, by it requires such qualification except
for any such failure, which when taken together with all other failures, is not
likely to have a material adverse effect on the business
of NXT.
(b) NXT does not own, directly or
indirectly, any capital stock, equity or interest in any corporation, firm,
partnership, joint venture or other entity, other than NXT, LLC and Healthy
Dairy, LLC. Each of which is a Delaware limited liability company (the
“Subsidiaries”). Each of the Subsidiaries is the
wholly owned subsidiary of NXT, free and clear of all liens. There is no
contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling NXT to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of any
kind convertible into or exchangeable for securities of NXT or the
Subsidiaries.
(c) NXT has all requisite
power and authority to execute and deliver this Agreement, and to consummate the
transactions contemplated hereby and thereby. NXT has taken all corporate action
necessary for the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, and this Agreement constitutes the
valid and binding obligation of NXT, enforceable against NXT in accordance with
its terms, except as may be affected by bankruptcy, insolvency, moratoria or
other similar laws affecting the
enforcement
of creditors’ rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
3.2 No
Conflicts or Defaults. The execution and delivery of
this Agreement by NXT and the consummation of the transactions contemplated
hereby do not and shall not (a) contravene the governing documents
of NXT or any of the Subsidiaries, or (b) with or without the giving
of notice or the passage of time, (i) violate, conflict with, or result in a
breach of, or a default or loss of rights under, any material covenant,
agreement, mortgage, indenture, lease, instrument, permit or license to which
NXT or any of the Subsidiaries is a party or by which NXT or any of the
Subsidiaries or any of their respective assets are bound, or any judgment, order
or decree, or any law, rule or regulation to which their assets are subject,
(ii) result in the creation of, or give any party the right to create, any lien
upon any of the assets of NXT or any of the Subsidiaries, (iii) terminate or
give any parry the right to terminate, amend, abandon or refuse to perform any
material agreement, arrangement or commitment to which NXT is a party or by
which NXT or any of its assets are bound, or (iv) accelerate or modify, or give
any party the right to accelerate or modify, the time within which, or the terms
under which NXT is to perform any duties or obligations or receive any rights or
benefits under any material agreement, arrangement or commitment to which it is
a party.
3.3 Capitalization. The authorized capital stock of
NXT immediately prior to giving effect to the transactions contemplated hereby
consists of 30,000,000 shares of common stock of which, as of the
date hereof, there were 22,480,000 shares issued and outstanding. All of the
outstanding shares of NXT are duly authorized, validly issued, fully paid and
nonassessable, and have not been or, with respect to NXT Shares, will not be
transferred in violation of any rights of third parties. Except as set forth in
Schedule
3.3, the NXT Shares are
not subject to any preemptive or subscription right, any voting trust agreement
or other contract, agreement, arrangement, option, warrant, call, commitment or
other right of any character obligating or entitling NXT to issue, sell, redeem
or repurchase any of its securities, and there is no outstanding security of any
kind convertible into or exchangeable for common shares. All of the NXT Shares
are owned of record and beneficially by the NXT Shareholder free and clear of
any liens, claims, encumbrances, or restrictions of any
kind.
3.4 Taxes. NXT has filed all returns and
reports which were required to be filed on or prior to the date hereof, and has
paid all Taxes (and any related penalties, fines and interest) which have become
due pursuant to such returns or reports or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes (and any related
penalties, fines and interest) has not been fully discharged, the same have been
properly reflected as a liability on the books and records of NXT and adequate
reserves therefore have been established. All such returns and reports filed on
or prior to the date hereof have been properly prepared and are true, correct
(and to the extent such returns reflect judgments made by NXT such judgments
were reasonable under the circumstances) and complete in all material respects.
Except as indicated in 3.4 of the Disclosure Schedule, no extension for the
filing of any such return or report is currently in effect. Except as indicated
in Item 3.4 of the Disclosure Schedule, no tax return or tax return liability
of NXT has been audited or, presently under audit. All taxes and any
penalties, fines and interest which have been asserted to be payable as a result
of any audits have been paid. Except as indicated in Item 3.4 of the Disclosure
Schedule, NXT has not given or been requested to give waivers of any statute of
limitations relating to the payment of any Taxes (or any related penalties,
fines and interest). There are no claims pending for past due Taxes. Except as
indicated in Item 3.4 of the Disclosure Statement, all payments for withholding
taxes, unemployment insurance and other amounts required to be paid for periods
prior to the date hereof to any governmental authority in respect of employment
obligations of NXT have been paid or shall be paid prior to the Closing and have
been duly provided for on the books and records of NXT and in the NXT Financial
Statements.
3.5 Compliance
with Law. NXT and the
Subsidiaries are conducting their respective businesses in material compliance
with all applicable law, ordinance, rule, regulation, court or administrative
order, decree or process, or any requirement of insurance carriers material to
its business. Neither NXT nor any of the Subsidiaries has received any notice of
violation or claimed violation of any such law, ordinance, rule, regulation,
order, decree, process or requirement.
3.6 Litigation.
(a) There is no claim, dispute, action,
suit, proceeding or investigation pending or threatened, against or
affecting NXT or any of the Subsidiaries or challenging the validity
or propriety of the transactions contemplated by this Agreement, at law or in
equity or admiralty or before any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, has any
such claim, dispute, action, suit, proceeding or investigation been pending or
threatened, during the 12-month period preceding the date
hereof;
(b) there is no outstanding judgment,
order, writ, ruling, injunction, stipulation or decree of any court, arbitrator
or federal, state, local, foreign or other governmental authority, board,
agency, commission or instrumentality, against or materially affecting NXT or
any of the Subsidiaries; and
(c) neither NXT nor any of the
Subsidiaries has received any written or verbal inquiry from any federal, state,
local, foreign or other governmental authority, board, agency, commission or
instrumentality concerning the possible violation of any law, rule or regulation
or any matter disclosed in respect of its business.
3.7 Title to
Properties. Except as disclosed in Schedule 3.7, NXT and
any of its subsidiaries do not own any real property.
3.8 Intellectual
Property. Except as disclosed in Schedule 3.8, NXT and
any of its subsidiaries do not own, nor is validly licensed nor otherwise has
the right to use, any Intellectual Property Rights. No claims are
pending or, to the knowledge of NXT, threatened that NXT is infringing or
otherwise adversely affecting the rights of any person with regard to any
Intellectual Property Right.
3.9 Insurance. NXT
currently maintains product liability insurance, which coverage NXT believes is
reasonably adequate for NXT and its subsidiaries.
3.10 Financial
Statements. On the Closing, NXT will deliver to the Company
its audited consolidated financial statements for the fiscal years ended
September, 2008 and 2007, (collectively, the “NXT Financial
Statements”). The NXT Financial Statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated. The NXT Financial
Statements fairly present in all material respects the financial condition and
operating results of NXT, as of the dates, and for the periods, indicated
therein.
ARTICLE
IV
REPRESENTATION
AND WARRANTIES OF THE NXT SHAREHOLDERS
Each NXT Shareholder hereby represents
and warrants, severally and not jointly, to the Company that as of the
Closing:
4.1 Title to
Shares. The NXT
Shareholder is the legal and beneficial owner of the NXT Shares to be
transferred to the Company, and upon consummation of the exchange contemplated
herein, the Company will acquire from the NXT Shareholder good and marketable
title to the NXT Shares, free and clear of all liens excepting only such
restrictions hereunder upon future transfers by the Company, if any, as maybe
imposed by applicable law.
4.2 Due
Authorization. The
NXT Shareholder has all requisite power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby and
thereby. This Agreement constitutes the valid and binding obligation of the NXT
Shareholder, enforceable against him in accordance with its terms, except as may
be affected by bankruptcy, insolvency, moratoria or other similar laws affecting
the enforcement of creditors’ rights generally and subject to the qualification
that the availability of equitable remedies is subject to the discretion of the
court before which any proceeding therefore may be brought.
4.3 Purchase
for Investment.
(a) The NXT Shareholder is acquiring the
Company Shares for investment for their own account and not as nominees or
agents, and not with a view to the resale or distribution of any part thereof,
and he has no present intention of selling, granting any participation in, or
otherwise distributing the same. The NXT Shareholder further represent that he
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person or to any third
person, with respect to any of the Company Shares.
(b) The NXT Shareholder understands that
the Company Shares are not registered under the Securities Exchange Act of 1933,
as amended (the “Act”) on the ground that the sale and the
issuance of securities hereunder is exempt from registration under the Act
pursuant to Section 4(2) thereof, and that the Company’s reliance on such
exemption is predicated on the Shareholder’s representations set forth herein.
The NXT Shareholder is an “accredited investor” as that term is defined in Rule
501(a) of Regulation D under the Act.
4.4 Investment
Experience. The NXT
Shareholder acknowledges that he can bear the economic risk of his investment,
and has such knowledge and experience in financial and business matters that he
is capable of evaluating the merits and risks of the investment in the Company
Shares.
4.5 Information. The NXT Shareholder has
carefully reviewed such information as such he deemed necessary to evaluate an
investment in the Company Shares. To the full satisfaction of the NXT
Shareholder, he has been furnished all materials that he has requested relating
to the Company and the issuance of the Company Shares hereunder, and the NXT
Shareholder has been afforded the opportunity to ask questions of
representatives of the Company to obtain any information necessary to verify the
accuracy of any representations or information made or given to him.
Notwithstanding the foregoing, nothing herein shall derogate from or otherwise
modify the representations and warranties of the Company set forth in this
Agreement, on which the NXT Shareholder has relied in making an exchange of the
NXT Shares for the Company Shares.
4.6 Restricted
Securities. The NXT
Shareholder understands that the Company Shares may not be sold, transferred, or
otherwise disposed of without registration under the Act or an exemption there
from, and that in the absence of an effective registration statement covering
the Company Shares or any available exemption from registration under the Act,
the Company Shares must be held indefinitely. The NXT Shareholder is aware that
the Company Shares may not be sold pursuant to Rule 144 promulgated under the
Act unless all of the conditions of that Rule are met. Among the conditions for
use of Rule 144 may be the availability of current information to the public
about the Company.
ARTICLE
V
DELIVERIES
5.1 Items
to be delivered to the NXT Shareholders prior to or at Closing by the
Company.
(a) Certificate of Incorporation and
amendments thereto, By-laws and amendments thereto, and certificate of good
standing of the Company in Delaware;
(b) all applicable schedules
hereto;
(c) all minutes and resolutions of board of
director and shareholder meetings in possession of the
Company;
(d) shareholder list;
(e) all Financial Statements
and all tax returns in possession of the Company;
(f) a
letter of resignation from ▇▇▇▇▇ ▇▇▇▇▇, the sole officer and director of the
Company resigning from all positions effective upon the Closing;
(g) evidence of the election of the new
officers and directors effective as of the
Closing;
(h) resolution from the Company’s Board,
and if applicable, shareholder resolutions approving this transaction and
authorizing the issuances of the shares hereto;
(i) certificates representing 22,480,000
shares of the Company Shares issued in the name of the NXT
Shareholders;
(j) any other document reasonably requested
by the Shareholder that he deems necessary for the consummation of this
transaction.
5.2 Items
to be delivered to the Company prior to or at Closing by NXT and the NXT
Shareholders.
(a) all applicable schedules
hereto;
(b) instructions from NXT appointing its
designees to the Company’s Board of Directors;
(c) share certificates and duly executed
stock powers from the NXT Shareholders transferring the NXT Shares to the
Company;
(d) resolutions from the Board of Directors
of NXT, if applicable, and shareholder resolutions approving the transactions
contemplated hereby; and
(e) any other document reasonably requested
by the Company that it deems necessary for the consummation of this
transaction.
ARTICLE
VI
CONDITIONS PRECEDENT TO CLOSING
6.1 Conditions
Precedent to Closing. The obligations of the Parties
under this Agreement shall be and are subject to fulfillment, prior to or at the
Closing, of each of the following conditions:
(a) That each of the representations and
warranties of the Parties contained herein shall be true and correct at the time
of the Closing date as if such representations and warranties were made at such
time except for changes permitted or contemplated by this
Agreement.
(b) That the Parties shall have performed
or complied with all agreements, terms and conditions required by this Agreement
to be performed or complied with by them prior to or at the time of the
Closing;
6.2 Conditions
to Obligations of NXT Shareholder. The obligations of NXT
Shareholder shall be subject to fulfillment prior to or at the Closing, of each
of the following conditions:
(a) The Company shall have received all of
the regulatory, shareholder and other third party consents, permits, approvals
and authorizations necessary to consummate the transactions contemplated by this
Agreement;
(b) Litigation. No
action, suit or proceeding shall have been instituted before any court or
governmental or regulatory body or instituted or threatened by any governmental
or regulatory body to restrain, modify or prevent the carrying out of the
transactions contemplated in this Agreement or to seek damages or a discovery
order in connection with such transactions, or which has or may have, in the
reasonable opinion of NXT or the NXT Shareholders, a materially adverse effect
on the assets, properties, business, operations or condition (financial or
otherwise) of the Company or NXT.
(c) Deliveries. The
deliveries specified in Section 5.1 shall have been made by the
Company.
6.3 Conditions
to Obligations of the Company. The obligations of the Company
shall be subject to fulfillment at or prior to or at the Closing, of each of the
following conditions:
(a) NXT and the NXT Shareholder shall have
received all of the regulatory, shareholder and other third party consents,
permits, approvals and authorizations necessary to consummate the transactions
contemplated by this Agreement; and
(b) The NXT Shareholder shall have
delivered to the Company the share certificates and duly executed stock powers
from the Shareholder transferring the NXT Shares to the
Company.
ARTICLE
VII
COVENANTS
7.1 Further
Assurances. Each of the Parties shall use its reasonable commercial
efforts to proceed promptly with the transactions contemplated herein, to
fulfill the conditions precedent for such party’s benefit or to cause the same
to be fulfilled and to execute such further documents and other papers and
perform such further acts as may be reasonably required or desirable to carry
out the provisions of this Agreement and to consummate the transactions
contemplated herein.
7.2 Blue Sky
Laws.
The
Company shall take any action (other than qualifying to do business in any
jurisdiction in which it is not now so qualified) required to be taken under any
applicable state securities laws in connection with the issuance of the Company
Stock in connection with this Agreement.
7.3 Fees and
Expenses.
All fees
and expenses incurred in connection with this Agreement shall be paid by the
Party incurring such fees or expenses, whether or not this Agreement is
consummated.
7.4 Access. Each
Party shall permit representatives of any other Party to have full access to all
premises, properties, personnel, books, records (including Tax records),
contracts, and documents of or pertaining to such Party.
7.5 Indemnification and
Insurance.
(a) For a
period of one year following the Closing Date, NXT and NXT Shareholders hereby
agree to indemnify the Company, each of the officers, agents and directors of
the Company 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
The
Company hereby agrees to indemnify NXT, each of the agents, and the NXT
Shareholders 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.
ARTICLE
VIII
MISCELLANEOUS
8.1 Survival of
Representations, Warranties and Agreements. Each of the Parties hereto is
executing and carrying out the provisions of this Agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
agreement or at the closing of the transactions herein provided for and not upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein. Except as
specifically set forth in this Agreement, representations and warranties and
statements made by a party to in this Agreement or in any document or
certificate delivered pursuant hereto shall not survive the Closing Date, and no
claims made by virtue of such representations, warranties, agreements and
covenants shall be made or commenced by any party hereto from and after the
Closing Date.
8.2 Access to
Books and Records. During the course of this
transaction through Closing, each Party agrees to make available for inspection
all corporate books, records and assets, and otherwise afford to each other and
their respective representatives, reasonable access to all documentation and
other information concerning the business, financial and legal conditions of
each other for the purpose of conducting a due diligence investigation thereof.
Such due diligence investigation shall be for the purpose of satisfying each
party as to the business, financial and legal condition of each other for the
purpose of determining the desirability of consummating the proposed
transaction. The Parties further agree to keep confidential and not use for
their own benefit, except in accordance with this Agreement any information or
documentation obtained in connection with any such
investigation.
8.3 Notice. All communications, notices,
requests, consents or demands given or required under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered to, or
received by prepaid registered or certified mail or recognized overnight courier
addressed to, or upon receipt of a facsimile sent to, the party for whom
intended, as follows, or to such other address or facsimile number as may be
furnished by such party by notice in the manner provided
herein:
If to the
NXT Shareholder and NXT:
NXT
Nutritionals, Inc.
▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
With a
copy (which does not constitute a notice) to:
▇▇▇▇▇▇
& Jaclin, LLP
▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Attn:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If to the
Company:
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
8.5 Entire
Agreement. This
Agreement, the Schedules and any instruments and agreements to be executed
pursuant to this Agreement, sets forth the entire understanding of the parties
hereto with respect to its subject matter, merges and supersedes all prior and
contemporaneous understandings with respect to its subject matter and may not be
waived or modified, in whole or in part, except by a writing signed by each of
the parties hereto. No waiver of any provision of this Agreement in any instance
shall be deemed to be a waiver of the same or any other provision in any other
instance. Failure of any party to enforce any provision of this Agreement shall
not be construed as a waiver of its rights under such
provision.
8.6 Successors
and Assigns. This
Agreement shall be binding upon, enforceable against and inure to the benefit
of, the parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns, and nothing herein is intended
to confer any right, remedy or benefit upon any other person. This Agreement may
not be assigned by any party hereto except with the prior written consent of the
other parties, which consent shall not be unreasonably
withheld.
8.7 Governing
Law. This Agreement
shall in all respects be governed by and construed in accordance with the laws
of the State of Delaware are applicable to agreements made and fully to be
performed in such state, without giving effect to conflicts of law
principles.
8.8 Counterparts. This Agreement may be executed
in multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.9 Construction. Headings contained in this
Agreement are for convenience only and shall not be used in the interpretation
of this Agreement. References herein to Articles, Sections and Exhibits are to
the articles, sections and exhibits, respectively, of this Agreement. The
Disclosure Schedule is hereby incorporated herein by reference and made a part
of this Agreement. As used herein, the singular includes the plural, and the
masculine, feminine and neuter gender each includes the others where the context
so indicates.
8.10 Severability. If any provision of this
Agreement is held to be invalid or unenforceable by a court of competent
jurisdiction, this Agreement shall be interpreted and enforceable as if such
provision were severed or limited, but only to the extent necessary to render
such provision and this Agreement enforceable.
[SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the date first set forth above.
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By:
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/s/
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Name:
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Title:
President, CEO and CFO
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NXT
Nutritionals, Inc.
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By:
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/s/
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Name:
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Title:
President and CEO
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