SHARE EXCHANGE AGREEMENT BY AND AMONG PROLINK HOLDINGS AS AND MIDLAND INTERNATIONAL CORPORATION
BY
AND AMONG
PROLINK
HOLDINGS AS
AND
MIDLAND
INTERNATIONAL CORPORATION
This
Share Exchange Agreement (this “Agreement”),
dated _____, 2007, is entered into by and among
Midland International Corporation (“Midland”)
and
Prolink Holdings AS (the “Seller,”
and
together with Midland, each a “Party”
and
collectively the “Parties”):
W
I T N E S S E T H :
WHEREAS,
the Seller is the sole owner of all of the outstanding and issued shares (the
“Shares”)
of the common stock of Prolink Property Rights AS. (“PPRAS”);
WHEREAS,
Midland desires to acquire a 30% of the outstanding and issued Shares in PPRAS
from the Seller, and the Seller wishes to sell the Shares;
NOW,
THEREFORE, in consideration of the covenants, promises and representations
set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the Parties agree as follows:
1. Share
Purchase and Exchange. Subject to the terms and conditions stated herein, at
the
Closing (as defined below), (a) the Seller shall assign, transfer, convey,
and
deliver to Midland, and Midland shall accept and acquire, the Shares and any
and
all rights in the Shares to which such Seller is entitled, and by so doing,
the
Seller will be deemed to have assigned all of its right, title and interest
in
and to all such Shares to Midland; and (b) in exchange for the Shares, Midland
shall transfer to the Seller, and the Seller shall accept from Midland, such
twenty million (20,000,000) restricted common share of Midland (the
“Exchange
Shares”).
2. Closing
and Deliveries.
The
Closing. The closing (the "Closing")
of the transactions contemplated hereunder shall take place simultaneously
with
the execution of this Agreement at such place as the Parties hereto may agree,
provided, however, time is of the essence and the Closing shall not be later
than ten (10) days from the date of this Agreement.
3.
Representations
and Warranties; Indemnification.
3.1
Representations
and Warranties of the Sellers. As an inducement to Midland to enter into this
Agreement and to consummate the transactions contemplated herein, the Seller
represents and warrants to Midland as follows, all of which are true and
complete as of the date of this Agreement and as of the Closing:
(a) Authority.
The Seller has the right, power, authority and capacity to execute and deliver
this Agreement, to consummate the transactions contemplated hereby and to
perform his obligations under this Agreement. This Agreement constitutes the
legal, valid and binding obligations of the Sellers, enforceable against each
Seller in accordance with the terms hereof, except as such enforceability may
be
limited by applicable bankruptcy, insolvency, or similar laws relating to,
or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(b) Ownership.
The Seller is the sole record and beneficial owner of all of the Shares, have
good and marketable title to the Shares, free and clear of all Encumbrances
(as
hereinafter defined), and have full legal right and power to sell, transfer
and
deliver the Shares to Midland in accordance with this Agreement. "Encumbrances"
shall mean any liens, pledges, hypothecations, charges, adverse claims, options,
preferential arrangements or restrictions of any kind, including, without
limitation, any restriction of the use, voting, transfer, receipt of income
or
other exercise of any attributes of ownership, other than as provided under
applicable securities laws. Upon the execution and delivery of this Agreement,
Midland will receive good and marketable title to the Shares, free and clear
of
all Encumbrances.
(c) No
Conflict. None of the execution, delivery, or performance of this Agreement,
or
the consummation of the transactions contemplated hereby, conflicts or will
conflict with, or (with or without notice or lapse of time, or both) will result
in a termination, breach or violation of (i) any instrument, contract or
agreement to which the Seller is a party or by which it is bound, or to which
the Shares are subject; or (ii) any law, ordinance, judgment, decree, order,
statute, or regulation, or that of any other governmental body or authority,
applicable to the Seller or the Shares.
(d) No
Consent. No consent, approval, authorization or order of, or any filing or
declaration with any governmental authority or any other person, is required
for
the consummation by the Seller of any of the transactions contemplated by the
Seller under this Agreement.
(e)
Full
Disclosure. No representation or warranty made by the Seller to Midland in
this
Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
There is no fact known to the Seller that has specific application to the Shares
and that materially adversely affects or, as far as can be reasonably foreseen,
materially threatens the Shares that has not been set forth in this
Agreement.
3.2
Representations
and Warranties of Midland. As an inducement to the Seller to enter into this
Agreement and to consummate the transactions contemplated herein, Midland
represents and warrants to the Seller as follows, all of which are true and
complete as of the date of this Agreement and as of the Closing:
(a)
Organization
of Midland. Midland is a corporation duly organized and validly existing and
in
good standing under the laws of Nevada, and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Midland is duly qualified as a foreign corporation
to do
business and is in good standing in every jurisdiction in which the nature
of
the business conducted or property owned by it makes such qualification
necessary, other than those in which the failure so to qualify would not have
a
material adverse effect on the business, operations, properties, prospects
or
condition (financial or otherwise) of Midland.
(b)
Authority.
(1) Midland has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Exchange Shares;
(2) the execution and delivery of this Agreement by Midland and the consummation
by it of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action and no further consent or
authorization of Midland or its Board of Directors or stockholders is required;
and (3) this Agreement has been duly executed and delivered by Midland and
constitutes a valid and binding obligation of Midland enforceable against
Midland in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws relating to,
or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(c) No
Conflict. None of the execution, delivery, or performance of this Agreement,
or
the consummation of the transactions contemplated hereby, conflicts or will
conflict with, or (with or without notice or lapse of time, or both) will result
in a termination, breach or violation of (i) any instrument, contract or
agreement to which the Seller is a party or by which it is bound, or to which
the Shares are subject; or (ii) any law, ordinance, judgment, decree, order,
statute, or regulation, or that of any other governmental body or authority,
applicable to the Seller or the Shares; or (iii) the Certificate of
Incorporation or By-Laws of Midland.
(d) No
Consent. No consent, approval, authorization or order of, or any filing or
declaration with any governmental authority or any other person, is required
for
the consummation by the Seller of any of the transactions contemplated by the
Seller under this Agreement.
(e)
Full
Disclosure. No representation or warranty made by the Seller to Midland in
this
Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
There is no fact known to the Seller that has specific application to the Shares
and that materially adversely affects or, as far as can be reasonably foreseen,
materially threatens the Shares that has not been set forth in this
Agreement.
3.3 Indemnification.
(a) The
Seller shall indemnify and hold harmless Midland and the officers, directors,
agents, affiliates, representatives and the respective successors and assigns
of
Midland from and against any and all damages, losses, liabilities, taxes and
costs and expenses (including, without limitation, attorneys' fees and costs)
resulting directly or indirectly from (i) any inaccuracy, misrepresentation,
breach of warranty or non-fulfillment of any of the representations and
warranties of the Seller in this Agreement, or any actions, omissions or
statements of fact inconsistent with in any material respect any such
representation or warranty, (ii) any failure by the Seller to perform or comply
with any agreement, covenant or obligation in this Agreement.
(b) Midland
shall indemnify and hold harmless the Seller and their respective agents,
officers, directors, affiliates, representatives and respective successors
and
assigns from and against any and all damages, losses, liabilities, taxes and
costs and expenses (including, without limitation, attorneys' fees and costs)
resulting directly or indirectly from (i) any inaccuracy, misrepresentation,
breach of warranty or non-fulfillment of any of the representations and
warranties of Midland in this Agreement, or any actions, omissions or statements
of fact inconsistent with in any material respect any such representation or
warranty, or (ii) any failure by Midland to perform or comply with any
agreement, covenant or obligation in this Agreement.
(c) Rules
Regarding Indemnification.
The
obligations and liabilities of each party which may be subject to
indemnification liability hereunder (the “indemnifying party”) to the other
party (the “indemnified party”) shall be subject to the following terms and
conditions:
(i) Claims
by
Non-Parties. The indemnified party shall give written notice within a reasonably
prompt period of time to the indemnifying party of any written claim by a third
party which is likely to give rise to a claim by the indemnified party against
the indemnifying party based on the indemnity agreements contained in this
Section, stating the nature of said claim and the amount thereof, to the extent
known. The indemnified party shall give notice to the indemnifying party that
pursuant to the indemnity, the indemnified party is asserting against the
indemnifying party a claim with respect to a potential loss from the third
party
claim, and such notice shall constitute the assertion of a claim for indemnity
by the indemnified party. If, within thirty (30) days after receiving such
notice, the indemnifying party advises the indemnified party that it will
provide indemnification and assume the defense at its expense, then so long
as
such defense is being conducted, the indemnified party shall not settle or
admit
liability with respect to the claim and shall afford to the indemnifying party
and defending counsel reasonable assistance in defending against the claim.
If
the indemnifying party assumes the defense, counsel shall be selected by such
party and if the indemnified party then retains its own counsel, it shall do
so
at its own expense. If the indemnified party does not receive a written
objection to the notice from the indemnifying party within thirty (30) days
after the indemnifying party’s receipt of such notice, the claim for indemnity
shall be conclusively presumed to have been assented to and approved, and in
such case the indemnified party may control the defense of the matter or case
and, at its sole discretion, settle or admit liability. If within the aforesaid
thirty (30) day period the indemnified party shall have received written
objection to a claim (which written objection shall briefly describe the basis
of the objection to the claim or the amount thereof, all in good faith), then
for a period of ten (10) days after receipt of such objection the parties shall
attempt to settle the dispute as between the indemnified and indemnifying
parties. If they are unable to settle the dispute, the unresolved issue or
issues shall be settled by arbitration in New York, New York in accordance
with
the rules and procedures of the American Arbitration Association.
(ii) Claims
by
a Party. The determination of a claim asserted by a party hereunder (other
than
as set forth in section (a) above) pursuant to this Section shall be made as
follows: The indemnified party shall give written notice within a reasonably
prompt period of time to the indemnifying party of any claim by the indemnified
party which has not been made pursuant to subsection (a) above, stating the
nature and basis of such claim and the amount thereof, to the extent known.
The
claim shall be deemed to have resulted in a determination in favor of the
indemnified party and to have resulted in a liability of the indemnifying party
in an amount equal to the amount of such claim estimated pursuant to this
paragraph if within forty-five (45) days after the indemnifying party’s receipt
of the claim the indemnified party shall not have received written objection
to
the claim. In such event, the claim shall be conclusively presumed to have
been
assented to and approved. If within the aforesaid forty-five (45) day period
the
indemnified party shall have received written objection to a claim (which
written objection shall briefly describe the basis of the objection to the
claim
or the amount thereof, all in good faith), then for a period of sixty (60)
days
after receipt of such objection the parties shall attempt to settle the disputed
claim as between the indemnified and indemnifying parties. If they are unable
to
settle the disputed claim, the unresolved issue or issues shall be settled
by
arbitration in New York, New York in accordance with the rules and procedures
of
the American Arbitration Association and New York law will govern without
reference to its choice of law provision.
4.
Miscellaneous.
(a)
Notices.
All notices or other communications required or permitted hereunder shall be
in
writing. Any notice, request, demand, claim or other communication hereunder
shall be deemed duly given (i) if by personal delivery, when so delivered;
(ii)
if mailed, three (3) business days after having been sent by registered or
certified mail, return receipt requested, postage prepaid and addressed to
the
intended recipient as set forth below; or (iii) if sent through an overnight
delivery service in circumstances to which such service guarantees next day
delivery, the day following being so sent to the address of the intended
recipient as first set forth above. Any party may change the address to which
notices and other communications hereunder are to be delivered by giving the
other parties notice in the manner herein set forth.
Notice
Address of Midland:
Midland
International Corporation
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn:
Chief Executive Officer
Notice
Address of Seller:
Prolink
Holdings AS
_____________
_____________
(b)
Choice
of Law. This Agreement shall be governed, construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein, without giving effect to principles of conflicts of law.
(c)
Jurisdiction.
The Parties hereby irrevocably consent to the in personam jurisdiction of the
courts located in the Province of Quebec, in connection with any action or
proceeding arising out of or relating to this Agreement or the transactions
and
the relationships established thereunder. The Parties hereby agree that such
courts shall be the venue and exclusive and proper forum in which to adjudicate
such matters and that they will not contest or challenge the jurisdiction or
venue of these courts.
(d)
Entire
Agreement. This Agreement sets forth the entire agreement and understanding
of
the Parties in respect of the transactions contemplated hereby and supersedes
all prior and contemporaneous agreements, arrangements and understandings of
the
Parties relating to the subject matter hereof. No representation, promise,
inducement, waiver of rights, agreement or statement of intention has been
made
by any of the Parties which is not expressly embodied in this Agreement, such
other agreements, notes or instruments related to this transaction executed
simultaneously herewith, or the written statements, certificates, schedules
or
other documents delivered pursuant to this Agreement or in connection with
the
transactions contemplated hereby.
(e)
Assignment.
Each party's rights and obligations under this Agreement shall not be assigned
or delegated, by operation of law or otherwise, without the other party's prior
consent, and any such assignment or attempted assignment shall be void, of
no
force or effect, and shall constitute a material default by such
party.
(f)
Amendments.
This Agreement may be amended, modified, superseded or cancelled, and any of
the
terms, covenants, representations, warranties or conditions hereof may be
waived, only by a written instrument executed by each party, in the case of
a
waiver, by the party waiving compliance.
(g)
Waivers.
The failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or the breach of any term,
covenant, representation or warranty contained in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach
or a
waiver of any other term, covenant, representation or warranty of this
Agreement.
(h) Further
Assurances. The Parties shall from time to time do and perform such additional
acts and execute and deliver such additional documents and instruments as may
be
required or reasonably requested by any party to establish, maintain or protect
its rights and remedies or to effect the purposes of this Agreement.
(i) Counterparts;
Interpretation.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, and all of which shall constitute one and the same
instrument. No ambiguity in any provision hereof shall be construed against
Parties by reason of the fact it was drafted by such party or its counsel.
References to “including” means including without limiting the generality of any
description preceding such term. Nothing expressed or implied in this Agreement
is intended, or shall be construed, to confer upon or give any person other
than
the Parties any rights or remedies under or by reason of this
Agreement.
(j) Acceptance
by Fax.
This
Agreement shall be accepted, effective and binding, for all purposes, when
the
Parties shall have signed and transmitted to each other, by telecopier or
otherwise, copies of the signature pages hereto.
(k) Binding
Effect; Benefits.
This
Agreement shall inure to the benefit of, and be binding upon, the Parties and
their respective heirs, legal representatives, successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended to or shall confer
upon any person other than the Parties, and their respective heirs, legal
representatives, successors and permitted assigns, any rights, remedies,
obligations or liabilities under, in connection with or by reason of this
Agreement, except Wireless Age, who is an intended beneficiary
hereunder.
(l) Transfer
of Shares. The execution of this Agreement shall constitute a stock power,
which
the transfer agents of Midland may rely on for purposes of transferring the
shares of those Parties in the books and records of the Parties.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Parties hereto have duly executed this Agreement on the
date first set forth above.