EXHIBIT 2.1.6
* * * * *
STOCK EXCHANGE AGREEMENT
BY AND AMONG
Sales Lead Management Inc.
The Security Holders of Sales
Lead Management Inc.
and
Southwest Mortgage Corp.
* * * * *
May ___, 2004
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement, dated as of May ____, 2004 (this
"Agreement"), is made and entered into by and among Sales Lead Management Inc.,
a New York corporation ("SLM"), the stockholders, warrant holders, option
holders and convertible debt holders of SLM identified on the signature page
hereof (collectively, the "Stockholders" and individually a "Stockholder"), and
Southwest Mortgage Corp., a Delaware corporation (the "Company").
WHEREAS, the respective governing bodies of SLM and the Company have
adopted resolutions approving and adopting the proposed stock exchange (the
"Exchange") upon the terms and conditions hereinafter set forth in this
Agreement;
WHEREAS, certain of the Stockholders hold an aggregate of 4,059,500 shares
of SLM's capital stock (the "SLM Shares"), which represent all of the issued and
outstanding shares of capital stock of SLM, and the Stockholders desire to
participate in the Exchange;
WHEREAS, SLM will enter into this Agreement for the purpose of evidencing
its consent to the consummation of the Exchange and for the purpose of making
certain representations, warranties, covenants and agreements; and
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇"), the sole officer and director of
the Company, has agreed to be a party to this Agreement solely as to Articles 4
and 6 hereof.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree
as follows:
ARTICLE 1
THE EXCHANGE
1.1 THE EXCHANGE. Upon the terms and subject to the conditions hereof, at
the Closing (as hereinafter defined) those applicable Stockholders will sell,
convey, assign, transfer and deliver to the Company stock certificates
representing the SLM Shares, and the Company will issue to said Stockholders, in
exchange for the SLM Shares, stock certificates representing 4,059,500 shares
(the "Company Shares") of its common capital stock, par value $.0001 per share
(the "Company Common Stock").
All outstanding options, warrants and convertible securities of SLM as of
the Closing shall be automatically converted into the right to receive the
identical number of shares of the Company's common stock upon satisfaction by
the holders of the established exercise conditions set forth therein.
1.2 CLOSING. The closing of the Exchange (the "Closing") shall take place
on the execution date of this Agreement. Such date is herein referred to as the
"Closing Date."
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SLM
SLM hereby represents and warrants to the Company as follows:
2.1 ORGANIZATION. SLM has been duly incorporated, is validly existing as a
New York corporation and is in good standing under the laws of its jurisdiction
of organization, and has the requisite power to carry on its business as now
conducted.
2.2 CAPITALIZATION. The authorized capital stock of SLM consists of ten
million shares of common stock, $.0001 par value, of which 4,059,500 shares are
issued and outstanding, and one million shares of blank check preferred stock,
of which none are presently issued and outstanding. All of the issued
and outstanding shares of capital stock are duly authorized, validly issued,
fully paid, non-assessable and free of preemptive rights. Except as set forth in
SCHEDULE 2.2, there are no outstanding or authorized options, rights, warrants,
calls, convertible securities, rights to subscribe, conversion rights or other
agreements or commitments to which SLM is a party or which are binding upon SLM
providing for the issuance or transfer by SLM of additional shares of its
capital stock and SLM has not reserved any shares of its capital stock for
issuance, nor are there any outstanding stock option rights, phantom equity or
similar rights, contracts, arrangements or commitments. There are no voting
trusts or any other agreements or understandings with respect to the voting of
SLM's capital stock.
Notwithstanding anything contained herein to the contrary, the parties
hereto acknowledge that SLM is in the process of effecting a private placement
of up to 1million shares of its common stock pursuant to Regulation D
promulgated under the Securities Act of 1933 (the "Private Placement"). The
parties further acknowledge that 507,500 shares of common stock of SLM issued in
connection with the Private Placement are included in the total number of issued
and outstanding shares of SLM common stock as set forth in this Section 2.2 and
that subscriptions for the balance of the shares issuable in connection with the
private placement have not yet been accepted by SLM, but may be shortly after
the closing of the transactions contemplated herein, which additional
subscriptions, if consummated, would immediately result in additional dilution
to the current holders of the Company's common stock.
2.3 CERTAIN CORPORATE MATTERS. SLM is duly qualified to do business and is
in good standing in each jurisdiction in which the ownership of its properties,
the employment of its personnel or the conduct of its business requires it to be
so qualified, except where such failure would not have a material adverse effect
on SLM's financial condition, results of operations or business. SLM has full
corporate power and authority and all authorizations, licenses and permits
necessary to carry on the business in which it is engaged and to own and use the
properties owned and used by it.
2.4 AUTHORITY RELATIVE TO THIS AGREEMENT. SLM has the requisite power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement by SLM and
the consummation by SLM of the transactions contemplated hereby have been duly
authorized by its Board of Directors and the Stockholders and no other actions
on the part of SLM are necessary to authorize this Agreement or the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by SLM and constitutes a valid and binding agreement of SLM,
enforceable against SLM in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally or by general principles of equity.
2.5 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for requirements of
applicable law, no filing with, and no permit, authorization, consent or
approval of, any third party, public body or authority is necessary for the
consummation by SLM of the transactions contemplated by this Agreement. Neither
the execution and delivery of this Agreement by SLM nor the consummation by SLM
of the transactions contemplated hereby, nor compliance by SLM with any of the
provisions hereof, will (a) conflict with or result in any breach of any
provisions of the organizational documents of SLM, (b) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or acceleration)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, agreement or other instrument or obligation to
which SLM is a party or by which it or its properties or assets may be bound or
(c) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to SLM, or any of its properties or assets, except in the case of
clauses (b) and (c) for violations, breaches or defaults which are not in the
aggregate material to SLM taken as a whole.
2.6 DISCLOSURE. The representations and warranties and statements of fact
made by SLM in this Agreement are, as applicable, accurate, correct and complete
and do not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained herein not false or misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
The Stockholders hereby severally represent and warrant, as to themselves
and their respective ownership in the SLM Shares, as follows:
3.1 OWNERSHIP OF THE SLM SHARES. The Stockholders own, beneficially and of
record, good and marketable title to the SLM Shares, free and clear of all
security interests, liens, adverse claims, encumbrances, equities, proxies,
options or stockholders' agreements. At the Closing, the Stockholders will
convey to the Company good and marketable title to the SLM Shares, free and
clear of any security interests, liens, adverse claims, encumbrances, equities,
proxies, options, stockholders' agreements or restrictions.
3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. The execution, delivery and
performance of this Agreement by the Stockholders and the consummation by the
Stockholders of the transactions contemplated hereby have been duly authorized
by the Stockholders, and no other actions on the part of the Stockholders are
necessary to authorize this Agreement or the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by the
Stockholders and constitutes a valid and binding agreement of the Stockholders,
enforceable against the Stockholders in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity.
3.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for requirements of
applicable laws, no filing with, and no permit, authorization, consent or
approval of, any public body or authority is necessary for the consummation by
the Stockholders of the transactions contemplated by this Agreement. Neither the
execution and delivery of this Agreement by the Stockholders nor the
consummation by the Stockholders of the transactions contemplated hereby, nor
compliance by the Stockholders with any of the provisions hereof, will (a)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which the Stockholders are a party or by which the
Stockholders or their properties may be bound or (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Stockholders,
except in the case of clauses (a) and (b) for violations, breaches or defaults
which are not in the aggregate material to the Stockholders.
3.4 DISCLOSURE OF INFORMATION. The Stockholders acknowledge that they have
been furnished such information regarding the management, financial condition,
results of operations and business of the Company necessary to make an informed
decision regarding the Exchange.
3.5 INVESTMENT EXPERIENCE. The Stockholders acknowledge that they are able
to fend for themselves, can bear the economic risk of its investment in the
Company Shares, and have such knowledge and experience in financial and business
matters that they are capable of evaluating the merits and risks of an
investment in the Company Shares. The Stockholders are acquiring the Company
Shares for their own account, for investment purposes only and not with a view
to further distribution thereof.
3.6 RESTRICTED SECURITIES. The Stockholders acknowledge that the Company
Shares will not be registered pursuant to the Securities Act of 1933, as amended
(the "Securities Act") or any applicable state securities laws, that the Company
Shares will be characterized as "restricted securities" under federal securities
laws, and that under such laws and applicable regulations the Company Shares
cannot be sold or otherwise disposed of without registration under the
Securities Act or an exemption there from. In this regard, the Stockholder is
familiar with Rule 144 promulgated under Securities Act, as currently in effect,
and understands the resale limitations imposed thereby and by the Securities
Act. Stop transfer instructions may be issued to the transfer agent (or a
notation may be made in the appropriate records of the Company) in connection
with the Company Shares.
3.7 LEGEND. The Stockholders acknowledge that the certificates
representing the Company Shares shall each conspicuously set forth on the face
or back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO
THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND ▇▇▇▇▇▇▇▇▇▇
The Company and ▇▇▇▇▇▇▇▇▇▇ hereby jointly and severally represent and
warrant to SLM and the Stockholders as follows:
4.1 ORGANIZATION. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation,
and has the requisite corporate power to carry on its business as now conducted.
4.2 CAPITALIZATION. The Company's authorized capital stock consists of
40,000,000 shares of Company Common Stock, of which 10,500,220 shares, not
adjusted to reflect either the reverse stock split or cancellation of shares to
be effected contemporaneously with the exchange transaction contemplated herein,
are issued and outstanding and 10,000,000 shares of preferred stock, par value
$.0001 per share, of which none are presently issued and outstanding. All issued
and outstanding shares of Company Common Stock are duly authorized, validly
issued, fully paid, non-assessable and free of preemptive rights. When issued,
the Company Shares will be duly authorized, validly issued, fully paid,
non-assessable and free of preemptive rights, there are no outstanding or
authorized options, rights, warrants, calls, convertible securities, rights to
subscribe, conversion rights or other agreements or commitments to which the
Company is a party or which are binding upon the Company providing for the
issuance by the Company or transfer by the Company of additional shares of the
Company's capital stock and the Company has not reserved any shares of its
capital stock for issuance, nor are there any outstanding stock option rights,
phantom equity or similar rights, contracts, arrangements or commitments. There
are no voting trusts or any other agreements or understandings with respect to
the voting of the Company's capital stock. The Company does not own any
securities of any other person or entity.
4.3 CERTAIN CORPORATE MATTERS. The Company is duly licensed or qualified
to do business and is in good standing as a foreign corporation in every
jurisdiction in which the character of the Company's properties or nature of the
Company's business requires it to be so licensed or qualified other than such
jurisdictions in which the failure to be so licensed or qualified does not, or
insofar as can reasonably be foreseen, in the future will not, have a material
adverse effect on its financial condition, results of operations or business.
The Company has full corporate power and authority and all authorizations,
licenses and permits necessary to carry on the business in which it is engaged
or in which it proposes presently to engage and to own and use the properties
owned and used by it. The Company has delivered to SLM true, accurate and
complete copies of its Certificate of Incorporation and Bylaws, which reflect
all restatements of and amendments made thereto at any time prior to the date of
this Agreement. The records of meetings of the stockholders and Board of
Directors of the Company are complete and correct in all material respects as of
the date hereof. The stock records of the Company and the stockholder lists of
the Company are complete and correct in all material respects and accurately
reflect the record ownership and the beneficial ownership of all the outstanding
shares of the Company's capital stock and any other outstanding securities
issued by the Company as of the date hereof. The Company is not in default under
or in violation of any provision of its Certificate of Incorporation or Bylaws
in any material respect. The Company is not in any
material default or in violation of any restriction, lien, encumbrance,
indenture, contract, lease, sublease, loan agreement, note or other obligation
or liability by which it is bound or to which any of its assets is subject.
4.4 AUTHORITY RELATIVE TO THIS AGREEMENT. The Company has the requisite
corporate power and authority to enter into this Agreement and carry out its
obligations hereunder. The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated hereby have
been duly authorized by the Board of Directors of the Company and no other
actions on the part of the Company are necessary to authorize this Agreement or
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity.
4.5 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for applicable
requirements of federal securities laws and state securities or blue-sky laws,
no filing with, and no permit, authorization, consent or approval of, any third
party, public body or authority is necessary for the consummation by the Company
of the transactions contemplated by this Agreement. Neither the execution and
delivery of this Agreement by the Company nor the consummation by the Company of
the transactions contemplated hereby, nor compliance by the Company with any of
the provisions hereof, will (a) conflict with or result in any breach of any
provisions of the charter or Bylaws of Company, (b) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or acceleration)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, agreement or other instrument or obligation to
which the Company is a party or by which it or any of its properties or assets
may be bound or (c) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Company, or any of its properties or assets,
except in the case of clauses (b) and (c) for violations, breaches or defaults
which are not in the aggregate material to the Company taken as a whole.
4.6 FINANCIAL STATEMENTS. The Company has delivered to SLM audited
financial statements for the periods ended December 31, 2003 and December 31,
2002, respectively (the "Financial Statements"). The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby and present fairly
and accurately the financial condition of the Company as of such dates and the
results of its operations and changes in cash flows for such periods.
4.7 EVENTS SUBSEQUENT TO FINANCIAL STATEMENTS. Since December 31, 2003,
there has not been:
(a) Any sale, lease, transfer, license or assignment of any assets,
tangible or intangible, of the Company;
(b) Any damage, destruction or property loss, whether or not covered by
insurance, affecting adversely the properties or business of the Company;
(c) Any declaration or setting aside or payment of any dividend or
distribution with respect to the shares of capital stock of the Company or
any redemption, purchase or other acquisition of any such shares;
(d) Any subjection to any lien, encumbrance, pledge or security interest
on any of the assets, tangible or intangible, of the Company;
(e) Any incurrence of indebtedness or liability or assumption of
obligations of another party by the Company;
(f) Any waiver or release by the Company of any right of any material
value;
(g) Any compensation or benefits paid to officers or directors of the
Company;
(h) Any change made or authorized in the Certificate of Incorporation or
Bylaws of the Company; or
(i) Any loan to or other transaction with any officer, director or
stockholder of the Company giving rise to any claim or right of the
Company against any such person or of such person against the Company.
4.8 UNDISCLOSED LIABILITIES. Except as otherwise disclosed under this
Agreement and as reflected on the Financial Statements, the Company has no
liability or obligation whatsoever, either direct or indirect, matured or
unmatured, accrued, absolute, contingent or otherwise.
4.9 TAX MATTERS.
(a) The Company has duly filed all material federal, state, local and
foreign tax returns required to be filed by or with respect to it with the
Internal Revenue Service or other applicable taxing authority, and no
extensions with respect to such tax returns have been requested or
granted;
(b) The Company has paid, or adequately reserved against in the Financial
Statements, all material taxes due, or claimed by any taxing authority to
be due, from or with respect to it;
(c) To the best knowledge of the Company, there has been no material issue
raised or material adjustment proposed (and none is pending) by the
Internal Revenue Service or any other taxing authority in connection with
any of the tax returns;
(d) No waiver or extension of any statute of limitations as to any
material federal, state, local or foreign tax matter has been given by or
requested from the Company; and
(e) The Company has not filed a consent under Section 341 (f) of the
Internal Revenue Code of 1986, as amended.
For the purposes of this SECTION 4.9, a tax is due (and must therefore
either be paid or adequately reserved against in the Financial Statements) only
on the last date payment of such tax can be made without interest or penalties,
whether such payment is due in respect of estimated taxes, withholding taxes,
required tax credits or any other tax.
4.10 REAL PROPERTY. The Company does not own or lease any real property.
4.11 BOOKS AND RECORDS. The books and records of the Company fairly and
accurately reflect the transactions to which the Company is a party or by which
its properties are bound.
4.12 QUESTIONABLE PAYMENTS. Neither the Company nor any employee, agent or
representative of it has, directly or indirectly, made any bribes, kickbacks,
illegal payments or illegal political contributions using Company funds or made
any payments from the Company's funds to governmental officials for improper
purposes or made any illegal payments from the Company's funds to obtain or
retain business.
4.13 ENVIRONMENTAL MATTERS.
(a) DEFINITIONS. For the purpose of this Agreement, the following terms
shall have the meaning herein specified:
(i) "Governmental Authority" shall mean the United States, each
state, each county, each city and each other political subdivision
in which the Company's business is located, and any court, political
subdivision, agency or instrumentality with jurisdiction over the
Company's business.
(ii) "Environmental Laws" shall mean (A) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C.A. 9601 et seq. ("CERCLA"), (B) the Resource Conservation
and Recovery Act, as amended by the Hazardous and Solid Waste
Amendment of 1984, 42 U.S.C.A. 6901 et seq. ("RCRA"), (C) the Clean
Air Act, 42 U.S.C.A. 7401 et seq., (D) the Federal Water Pollution
Control Act, as amended, 33 U.S.C.A. 1251 et seq., (E) the Toxic
Substances Control Act, 15 U.S.C.A. 2601 et seq., (F) all applicable
state laws, and (G) all other laws and ordinances relating to
municipal waste, solid waste, air pollution, water pollution and/or
the handling, discharge, disposal or recovery of on-site or off-site
hazardous substances or materials, as each of the foregoing has been
or may hereafter be amended from time to time.
(iii) "Hazardous Materials" shall mean, among others, (A) any
"hazardous waste" as defined by RCRA, and regulations promulgated
thereunder; (B) any "hazardous substance" as defined by CERCLA, and
regulations promulgated thereunder; (C) any "toxic pollutant" as
defined in the Federal Water Pollution Prevention and Control Act,
as amended, 33 U.S.C. 1251 et seq., (commonly known as "CWA" for
"Clean Water Act"), and any regulations thereunder; (D) any
"hazardous air pollutant" as defined in the Air Pollution Prevention
and Control Act, as amended, 42 U.S.C. 7401 et seq. (commonly known
as "CAA" for "Clean Air Act") and any regulations thereunder; (E)
asbestos; (F) polychlorinated biphenyls; (G) any substance the
presence of which on the Business Location (as hereinafter defined)
is prohibited by any Environmental Laws; and (H) any other substance
which is regulated by any Environmental Laws.
(iv) "Hazardous Materials Contamination" shall mean the presence of
Hazardous Materials in the soil, groundwater, air or any other media
regulated by the Environmental Laws on, under or around the
Company's facilities at levels or concentration which trigger any
requirement under the Environmental Laws to remove, remediate,
mitigate, ▇▇▇▇▇ or otherwise reduce the level or concentration of
the Hazardous Materials. The term "Hazardous Materials
Contamination" does not include the presence of Hazardous Materials
in process tanks, lines, storage or reactor vessels, delivery trucks
or any other equipment or containers, which Hazardous Materials are
used in the manufacture, processing, distribution, use, storage,
sale, handling, transportation, recycling, reuse or disposal of the
products that were manufactured and/or distributed by the Company.
(b) REPRESENTATIONS AND WARRANTIES. Based on the foregoing, the Company
and ▇▇▇▇▇▇▇▇▇▇ represent and warrant that:
(i) To the best knowledge of the Company and ▇▇▇▇▇▇▇▇▇▇, there has
been no material failure by the Company to comply with all
applicable requirements of Environmental Laws relating to the
Company, the Company's operations, and the Company's manufacture,
processing, distribution, use, treatment, generation, recycling,
reuses, sale, storage, handling, transportation or disposal of any
Hazardous Material and the Company is not aware of any facts or
circumstances which could materially impair such compliance with all
applicable Environmental Laws.
(ii) The Company has not received notice from any Governmental
Authority or any other person of any actual or alleged violation of
any Environmental Laws, nor is any such notice anticipated.
(iii) To the best knowledge of the Company and ▇▇▇▇▇▇▇▇▇▇,
Environmental Laws do not require that any permits, licenses or
similar authorizations to construct, occupy or operate any equipment
or facilities used in the conduct of the Company's business.
(iv) No Hazardous Materials are now located at the Business
Location, and, to the best knowledge of the Company and ▇▇▇▇▇▇▇▇▇▇,
the Company has not ever caused or permitted any Hazardous Materials
to be generated, placed, stored, held, handled, located or used at
the Business Location, except those which may lawfully be used,
transported, stored, held, handled, generated or placed at the
Business Location in the conduct of the Company's business.
(v) The Company has not received any notices, whether from a
Governmental Authority or some other third party, that Hazardous
Material Contamination exists at the Business Location or at any
other location utilized by the Company in the conduct of its
business nor is the Company aware of any circumstances that would
give rise to an allegation of such contamination.
(vi) To the best knowledge of the Company and ▇▇▇▇▇▇▇▇▇▇, no
investigation, administrative order, consent order or agreement,
litigation or settlement with respect to Hazardous Materials or
Hazardous Materials Contamination is proposed, threatened,
anticipated, pending or otherwise in existence with respect to the
Business Location or with respect to any other site controlled or
utilized by the Company in the operation of its business. To the
best knowledge of the Company and ▇▇▇▇▇▇▇▇▇▇, the Business Location
is not currently on, and has never been on, any federal or state
"Superfund" or "Superlien" list.
4.14 INTELLECTUAL PROPERTY. The Company does not own or use any
trademarks, trade names, service marks, patents, copyrights or any applications
with respect thereto. The Company has no knowledge of any claim that, or inquiry
as to whether, any product, activity or operation of the Company infringes upon
or involves, or has resulted in the infringement of, any trademarks,
trade-names, service marks, patents, copyrights or other proprietary rights of
any other person, corporation or other entity; and no proceedings have been
instituted, are pending or are threatened.
4.15 INSURANCE. The Company has no insurance policies in effect.
4.16 CONTRACTS. Except as set forth on SCHEDULE 4.16, the Company has no
material contracts, leases, arrangements and commitments (whether oral or
written). The Company is not a party to or bound by or affected by any contract,
lease, arrangement or commitment (whether oral or written) relating to: (a) the
employment of any person; (b) collective bargaining with, or any representation
of any employees by, any labor union or association; (c) the acquisition of
services, supplies, equipment or other personal property; (d) the purchase or
sale of real property; (e) distribution, agency or construction; (f) lease of
real or personal property as lessor or lessee or sublessor or sublessee; (g)
lending or advancing of funds; (h) borrowing of funds or receipt of credit; (i)
incurring any obligation or liability; or (j) the sale of personal property.
4.17 LITIGATION. The Company is not subject to any judgment or order of
any court or quasijudicial or administrative agency of any jurisdiction,
domestic or foreign, nor is there any charge, complaint, lawsuit or governmental
investigation pending against the Company. The Company is not a plaintiff in any
action, domestic or foreign, judicial or administrative. There are no existing
actions, suits, proceedings or investigations of the Company, and the Company
knows of no basis for such actions, suits, proceedings or investigations. There
are no unsatisfied judgments, orders, decrees or stipulations affecting the
Company or to which the Company is a party.
4.18 EMPLOYEES. Except for ▇▇▇▇▇▇▇▇▇▇, the Company's sole officer and
director, the Company does not have any employees. The Company does not owe any
compensation of any kind, deferred or
otherwise, to any current or previous employees. The Company has no written or
oral employment agreements with any officer or director of the Company. The
Company is not a party to or bound by any collective bargaining agreement. There
are no loans or other obligations payable or owing by the Company to any
stockholder, officer, director or employee of the Company, nor are there any
loans or debts payable or owing by any of such persons to the Company or any
guarantees by the Company of any loan or obligation of any nature to which any
such person is a party.
4.19 EMPLOYEE BENEFIT PLANS. The Company has no (a) non-qualified deferred
or incentive compensation or retirement plans or arrangements, (b) qualified
retirement plans or arrangements, (c) other employee compensation, severance or
termination pay or welfare benefit plans, programs or arrangements or (d) any
related trusts, insurance contracts or other funding arrangements maintained,
established or contributed to by the Company.
4.20 LEGAL COMPLIANCE. To the best knowledge of the Company and
▇▇▇▇▇▇▇▇▇▇, no claim has been filed against the Company alleging a violation of
any applicable laws and regulations of foreign, federal, state and local
governments and all agencies thereof. The Company holds all of the material
permits, licenses, certificates or other authorizations of foreign, federal,
state or local governmental agencies required for the conduct of its business as
presently conducted.
4.21 BROKER'S FEES. Neither the Company, nor anyone on its behalf has any
liability to any broker, finder, investment banker or agent, or has agreed to
pay any brokerage fees, finder's fees or commissions, or to reimburse any
expenses of any broker, finder, investment banker or agent in connection with
this Agreement.
4.22 DISCLOSURE. The representations and warranties and statements of fact
made by the Company in this Agreement are, as applicable, accurate, correct and
complete and do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained herein not false or misleading.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 DOCUMENTS TO BE DELIVERED BY THE COMPANY. At the Closing, the Company
shall have delivered or caused to be delivered to SLM and the Stockholders the
following:
(i) resolutions duly adopted by the Board of Directors of the
Company authorizing and approving the Exchange, the filing of a
Certificate of Amendment to the Company's Certificate of
Incorporation to change the Company's name to SLM Holdings, Inc. and
the execution, delivery and performance of this Agreement;
(ii) a certificate, duly executed by the Company's President,
▇▇▇▇▇▇▇▇▇▇, in his individual capacity, stating that the
representations and warranties set forth in Article 4 hereof are
true and correct as of the Closing and that there has been no matter
of adverse change in the Company's business operations or financial
condition as of the period between the execution date of this
Agreement and the Closing, if the Closing should occur on a date
subsequent to the date of this Agreement.
(iii) a certificate of good standing for the Company from the
Secretary of State of the State of Delaware, dated not earlier than
five days prior to the Closing Date;
(iv) evidence of completion of a one for .6093 reverse stock split
of the Company's Common Stock;
(v) the written resignation of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ from his positions of
officer and director of the Company;
(vi) to the extent practicable, certificates representing the
Company Shares to be delivered pursuant to this Agreement bearing
the names of the Stockholders or confirmation, in affidavit form,
from the Company's transfer agent that such ownership is duly noted
in book-entry form on the Company's stock transfer records; and
(vii) such other documents as SLM may reasonably request in
connection with the transactions contemplated hereby.
5.2 DOCUMENTS TO BE DELIVERED BY SLM AND THE STOCKHOLDERS. On the Closing
Date, SLM and the Stockholders, as applicable, shall have delivered to the
Company the following:
(i) certificate(s) representing the SLM Shares to be delivered
pursuant to this Agreement duly endorsed or accompanied by duly
executed stock powers; and
(ii) such other documents as the Company may reasonably request in
connection with the transactions contemplated hereby.
ARTICLE 6
INDEMNIFICATION
6.1 The parties hereto shall indemnify each other and their respective
affiliates from, and defend and hold each other and their affiliates harmless
from and against, any losses suffered, incurred or sustained by them or any of
their affiliates resulting from, arising out of or relating to any inaccuracy,
untruthfulness or breach of any representation, covenant, or warranty made by a
party hereto under this Agreement. The parties hereto shall indemnify each other
and their affiliates from any costs and expenses incurred in connection with the
enforcement of this Article 6.
ARTICLE 7
GENERAL PROVISIONS
7.1 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally,
sent by overnight courier or mailed by registered or certified mail (postage
prepaid and return receipt requested) to the party to whom the same is so
delivered, sent or mailed at addresses set forth on the signature page hereof
(or at such other address for a party as shall be specified by like notice),
except all notices required to be delivered to the Stockholders shall be "care
of" SLM.
7.1 INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
sections and articles of this Agreement unless otherwise stated.
7.2 SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated and the parties shall negotiate
in good faith to modify this Agreement to preserve each party's anticipated
benefits under this Agreement.
7.3 FURTHER ASSURANCES. Each party hereto agrees to perform any further
acts and to execute and deliver any further documents which may be reasonably
necessary to carry out the provisions of this Agreement.
7.4 MISCELLANEOUS. This Agreement (together with all other documents and
instruments
referred to herein): (a) constitutes the entire agreement and supersedes all
other prior agreements and undertakings, both written and oral, among the
parties with respect to the subject matter hereof; (b) except as expressly set
forth herein, is not intended to confer upon any other person any rights or
remedies hereunder and (c) shall not be assigned by operation of law or
otherwise, except as may be mutually agreed upon by the parties hereto.
7.5 SEPARATE COUNSEL. Each party hereby expressly acknowledges that it has
been advised and urged to seek its own separate legal counsel for advice with
respect to this Agreement.
7.6 GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
7.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, which together shall constitute a single agreement.
7.8 AMENDMENT. This Agreement may be amended, modified or supplemented
only by an instrument in writing executed by all parties hereto.
7.9 PARTIES IN INTEREST: NO THIRD PARTY BENEFICIARIES. Except as otherwise
provided herein, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective heirs, legal representatives,
successors and assigns of the parties hereto. This Agreement shall not be deemed
to confer upon any person not a party hereto any rights or remedies hereunder.
7.10 WAIVER. No waiver by any party of any default or breach by another
party of any representation, warranty, covenant or condition contained in this
Agreement shall be deemed to be a waiver of any subsequent default or breach by
such party of the same or any other representation, warranty, covenant or
condition. No act, delay, omission or course of dealing on the part of any party
in exercising any right, power or remedy under this Agreement or at law or in
equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies. All remedies, whether at law or in equity,
shall be cumulative and the election of any one or more shall not constitute a
waiver of the right to pursue other available remedies.
7.11 EXPENSES. The parties hereto shall pay all of their respective
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsel and
financial advisers.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SOUTHWEST MORTGAGE CORP.
By:
-----------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
President
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
SALES LEAD MANAGEMENT INC.
By:
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with copy to:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Ruskin, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Executed for purposes of Articles 4 and 6 only.
-----------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
COUNTERPART SIGNATURE PAGE OF
STOCKHOLDERS TO STOCK EXCHANGE AGREEMENT
--------------------------
By:
--------------------------
Name:
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SCHEDULE 4.16
Agreement dated January 2, 2003 between Southwest Mortgage Corp. and
Securities Transfer Corporation.