EX-2
SHARE EXCHANGE AGREEMENT
This Share Exchange Agreement ("Agreement") is entered into this
1st day of April, 1999, by and between Safe at Home Products,
Inc., a California corporation hereinafter referred to as "SAHP",
and Everlert, Inc., a Nevada corporation hereinafter referred to
as "Everlert".
WHEREAS, Everlert desires to acquire from SAHP and SAHP desires
to issue to Everlert shares of NuCo, Inc., a Nevada corporation
("NuCo"), in an amount equal to one hundred percent (100%) of the
issued and outstanding shares of capital stock of NuCo on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, the parties hereto
agree as follows:
I. Exchange of Shares.
1.1 Shares to Everlert. Subject to the terms and conditions set
forth herein, at the Closing (as defined below), SAHP will issue
to Everlert TWELVE MILLION (12,000,000) shares of NuCo, valued
at FIFTY CENTS ($0.50) per share, said shares constituting one
hundred percent (100%) of all of the issued and outstanding
capital stock of NuCo as of the Closing.
1.2 Shares to SAHP. In exchange for the shares of NuCo as
described above, Everlert shall issue to SAHP TWELVE MILLION
(12,000,000) shares of restricted common stock of Everlert,
valued at FIFTY CENTS ($0.50) per share.
II. Representations and Warranties of the SAHP.
Except for the specific representations and warranties of SAHP
made by SAHP or to the best of SAHP's knowledge set forth in
this Section 2, SAHP represents and warrants that:
2.1 Organization and Corporate Power
2.1.1 NuCo: (a) is a corporation duly incorporated and validly
existing and in good standing under the laws of Nevada; (b) has
all the requisite corporate power and authority and all material
licenses, permits and authorizations necessary to own and operate
its properties and to carry on its business as now conducted; and
(c) the copies of NuCo's Articles of Incorporation and Bylaws
have been furnished to Everlert's counsel, reflect all amendments
made thereto at any time prior to the date of this Agreement and
are correct and complete.
2.1.2 SAHP represents and warrants that: (a) SAHP is a
corporation duly incorporated and validly existing and in good
standing under the laws of California; (b) SAHP has all requisite
corporate power and authority and all material licenses,
permits, and authorizations necessary to own and operate its
properties and to carry on its business as now conducted; and (c)
all authorizations necessary by NuCo to sell its shares as
proposed in this Agreement have been obtained.
2.2 Capital Stock and Related Matters. SAHP and NuCo jointly and
severally represent and warrant that the authorized capital stock
of NuCo consists of twenty five million (25,000,000) shares of
common stock, twelve million (12,000,000) of which are issued and
outstanding and currently held by SAHP, and no other stock of
NuCo is issued and outstanding. To the best of SAHP's
knowledge, no shares owned at any time by SAHP have been sold or
otherwise transferred to any other person or entity. NuCo does
not have outstanding and has not agreed, orally or in
writing, to issue any stock or securities convertible or
exchangeable for any shares of its stock, nor does it have
outstanding nor has it agreed, orally or in writing, to issue any
options or rights to purchase or otherwise acquire its stock.
NuCo is not subject to any obligation (contingent or otherwise)
to repurchase or otherwise acquire or retire any shares of its
stock. All of the outstanding shares of NuCo's capital stock are
validly issued, fully paid and nonassessable. SAHP represents it
has, and upon the execution of this Agreement, Everlert will
have, good and marketable title to the shares, free and clear of
all security interests, liens, encumbrances, or other
restrictions or claims, subject only to restrictions as to
marketability imposed by securities laws. Neither SAHP nor NuCo
have violated or will violate any applicable securities laws in
connection with the transfer of the shares to Everlert hereunder.
The stock issuances by NuCo to SAHP complied with all applicable
foreign and domestic securities laws and regulations on the date
and time of issuance.
2.3 Subsidiaries. NuCo represents and warrants, and SAHP
represents and warrants to the best of SAHP's knowledge that
NuCo does not own or hold any rights to acquire any shares of
stock or any other security or any interest in any other
corporation or entity.
2.4 Conduct of Business; Liabilities. To the best of SAHP's
knowledge, NuCo is not in default under, and no condition exists
that with notice or lapse of time would constitute a default of
NuCo under (i) any mortgage, loan agreement, evidence of
indebtedness, or other instrument evidencing borrowed money to
which NuCo is a party or by which NuCo or the properties of NuCo
are bound or (ii) any judgment, order, or injunction of any
court, arbitrator, or governmental agency that would reasonably
be expected to affect materially and adversely the business,
financial condition, or results of operations of NuCo taken as a
whole.
2.5 No Undisclosed Liabilities. Except for liabilities and
obligations incurred in the ordinary course of business since
April 13, 1999, neither NuCo nor any of the property of NuCo is
subject to any material liability or obligation.
2.6 Title and Related Matters. To the best of the knowledge of
SAHP, NuCo has good and marketable title to all of its property,
real and personal, and other assets (except properties and
assets sold or otherwise disposed of subsequent to April 13,
1999 in the ordinary course of business or as contemplated in
this Agreement), free and clear of all security interests,
mortgages, liens, pledges, charges, claims or encumbrances of
any kind or character, except (i) statutory liens for property
taxes not yet delinquent or payable subsequent to the date of
this Agreement and statutory or common law liens securing the
payment or performance of any obligation of NuCo, the payment or
performance of which is not delinquent, or that is payable
without interest or penalty subsequent to the date on which this
representation is given, or the validity of which is being
contested in good faith by NuCo; (ii) the rights of customers of
NuCo with respect to inventory under orders or contracts entered
into by NuCo in the ordinary course of business; and (iii)
claims, easements, liens and other encumbrances of record
pursuant to filings under real property recording statutes.
2.7 Litigation. To the best of the knowledge of SAHP, there are
no material actions, suits, proceedings, orders, investigations,
or claims pending or, to the best of the knowledge of SAHP,
assertable or overtly threatened against NuCo or any property of
NuCo, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality;
NuCo is not subject to any arbitration proceedings under
collective bargaining agreements or otherwise or, to the best of
the knowledge of NuCo, any governmental investigations or
inquiries; and to the best of the knowledge of NuCo, there is no
basis for any of the foregoing.
2.8 Compliance with Laws. To the best of the knowledge of SAHP,
NuCo is, in the conduct of its business, in substantial
compliance with all laws, statutes, ordinances, regulations,
orders, judgments or decrees applicable to them, the enforcement
of which, if NuCo was not in compliance therewith, would have a
materially adverse effect on the business of NuCo, taken as a
whole. NuCo has not received any notice of any asserted present
or past failure by NuCo to comply with such laws, statutes,
ordinances, regulations, orders, judgments or decrees.
2.9 No Brokers. There are no claims for brokerage commissions,
finders' fees, or similar compensation in connection with this
Agreement based on any arrangement or agreement binding upon any
of the parties hereto.
2.10 Disclosure. To the best of the knowledge of SAHP, neither
this Agreement nor any of the exhibits, schedules,
attachments, written statements, documents, certificates, or
other items prepared or supplied to Everlert by or on behalf of
SAHP with respect to this purchase contain any untrue statement
of a material fact or omit a material fact necessary to make each
statement contained herein or therein not misleading.
2.11 Power of Attorney. To the best of the knowledge of SAHP, no
material power of attorney or similar authorization given by NuCo
is presently in effect.
2.12 Property. Exhibit A contains lists of all material
tangible personal property, intellectual and other intangible
property, and other assets owned or held by NuCo and used or
useful in the conduct of the business of NuCo. Except as set
forth in Exhibit A, NuCo owns and has good title to such
properties and none of such properties is subject to any security
interest, mortgage, pledge, conditional sales agreement or other
lien or encumbrance (except for liens for current taxes,
assessments, charges or other governmental levies not yet due and
payable). Except as set forth in Exhibit A and to the best of
the knowledge of SAHP, all material properties listed therein
are generally in good operating condition and repair (ordinary
wear and tear excepted), are performing satisfactorily, and are
available for immediate use in the conduct of the business and
operations of NuCo. To the best of the knowledge of NuCo, all
such tangible personal property is in compliance in all material
respects with all applicable statutes, ordinances, rules and
regulations. The properties listed in Exhibit A include all
material properties necessary to conduct the business and
operations of NuCo as now conducted.
III. Representations and Warranties of Everlert.
As a material inducement to SAHP to enter into this Agreement and
sell the shares of NuCo, Everlert hereby represents and warrants
to SAHP as follows:
3.1 Organization; Power. Everlert is a corporation duly
incorporated and validly existing under the laws of the State of
Nevada, and has all requisite corporate power and authority to
enter into this Agreement and perform its obligations hereunder.
3.2 Authorization. The execution, delivery, and performance by
Everlert of this Agreement and all other agreements contemplated
hereby to which Everlert is a party have been duly and validly
authorized by all necessary corporate action of Everlert, and
this Agreement and each other agreement, when executed and
delivered by the parties thereto, will constitute the legal,
valid and binding obligation of Everlert enforceable against it
in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency and similar statutes affecting
creditors'
rights generally and judicial limits on equitable remedies.
3.3 No Conflict with Other Instruments or Agreements. The
execution, delivery and performance by Everlert of this Agreement
and all other agreements contemplated hereby to which Everlert is
a party will not result in a breach or violation of, or
constitute a default under, its Articles of Incorporation or
Bylaws or any material agreement to which Everlert is a party or
by which Everlert is bound.
3.4 Governmental Authorities. To the best of the knowledge of
Everlert, (i), Everlert is not required to submit any notice,
report, or other filing with any governmental or regulatory
authority in connection with the execution and delivery by
Everlert of this Agreement and the consummation of the purchase
and (ii) no consent, approval or authorization of any
governmental or regulatory authority is required to be obtained
by Everlert or any affiliate in connection with Everlert's
execution, delivery and performance of this Agreement and the
consummation of this purchase.
3.5 Litigation. There are no actions, suits, proceedings or
governmental investigations or inquiries pending or, to the
knowledge of Everlert, threatened against Everlert or its
properties, assets, operations or businesses that might delay,
prevent or hinder the consummation of this purchase.
3.6 Investment Representations.
3.6.1 During the course of the negotiation of this Agreement,
Everlert has reviewed all information provided to it by SAHP and
has had the opportunity to ask questions of and receive answers
from representatives of SAHP concerning NuCo, to obtain certain
additional information requested by Everlert. Everlert has had
access to all of the books and records of NuCo, to audited and
unaudited statements, to personnel of NuCo familiar with its
financial and operational issues and to bankers and accountant
familiar with NuCo and its operations.
3.6.2 Everlert understands that the shares to be acquired have
not been registered under the Securities Act of 1933, as amended
(1933 Act) or under any state securities law.
3.6.3 Everlert understands that the shares cannot be resold in a
transaction to which the 1933 Act and state securities laws apply
unless (i) subsequently registered under the 1933 Act and
applicable state securities laws or (ii) exemptions from such
registrations are available. Everlert is aware of the
provisions of Rule 144 promulgated under the 1933 Act which
permit limited resale of shares purchased in a private
transaction subject to the satisfaction of certain conditions.
3.6.4 Everlert understands that no public market now exists for
the shares and that it is uncertain that a public market will
ever exist for the shares.
3.7 Brokerage. There are no claims for brokerage commissions,
finders' fees, or similar compensation in connection with this
Agreement based on any arrangement or agreement entered into by
Everlert and binding upon any of the parties hereto.
IV. Conduct of NuCo's Business Pending the Closing.
From the date hereof until the Closing, and except as otherwise
consented to or approved by Everlert in writing, SAHP covenants
and agrees with Everlert as follows and covenants and agrees
with Everlert that NuCo will not take any action (or cause any
action to be taken) which will create a conflict with any of the
following:
4.1 Regular Course of Business. NuCo will operate its business
in accordance with the reasonable judgment of its management,
diligently and in good faith, consistent with past management
practices, and NuCo will continue to use its reasonable efforts
to keep available the services of present officers and employees
(other than planned retirements) and to preserve
its present relationships with persons having business dealings
with it.
4.2 Capital Changes. NuCo will not issue any shares of its
stock, or issue or sell any securities convertible into or
exchangeable for its stock, or options, warrants to purchase, or
rights to subscribe to any shares of its stock, or subdivide or
in any way reclassify any shares of its capital stock, or
repurchase, reacquire, cancel or redeem any such shares, except
as may be required by the terms of this Agreement.
4.4 Assets. The assets, property and rights now owned by NuCo
will be used, preserved and maintained, as far as practicable, in
the ordinary course of business, to the same extent and in the
same condition as said assets, property and rights are on the
date of this Agreement, ordinary wear and tear excepted, and no
unusual or novel methods of manufacture, purchase, sale,
management or operation of said properties or business or
accumulation or valuation of inventory will be made or instituted.
4.5 Insurance. NuCo will keep or cause to be kept in effect and
undiminished the insurance now in effect on its various
properties and assets.
4.6 Employees. NuCo will not grant to any employee any
promotion, any increase in compensation or any bonus or other
award other than promotions, increases or awards that are
regularly scheduled in the ordinary course of business or
contemplated on the date of this Agreement.
4.7 No Violations. NuCo will comply in all material respects
with all statutes, laws, ordinances, rules and regulations
applicable to it in the ordinary course of business.
4.8 Public Announcements. No press release or other announcement
to the employees, customers or suppliers of NuCo related to this
Agreement or this purchase will be issued without the joint
approval of the parties, unless required by law, in which case
Everlert and SAHP will consult with each other regarding the
announcement.
V. Closing.
5.1 Time, Place and Manner of Closing. Unless this Agreement
has been terminated and this purchase has been abandoned
pursuant to the provisions of Section 6, the Closing will be held
at the offices of Everlert on April 1, 1999 or as soon as
practicable after the satisfaction of the various conditions
precedent to the Closing set forth herein, but in no event later
than April 30, 1999. At the Closing, the parties to this
Agreement will exchange certificates, notes, guaranties, and
other instruments and documents in order to determine
whether the terms and conditions of this Agreement have been
satisfied. Upon the determination of each party that its
conditions to consummate this purchase have been satisfied or
waived, SAHP shall deliver to Everlert the certificate(s)
evidencing the shares of NuCo, duly endorsed for transfer or with
Stock Powers attached, and Everlert shall deliver to SAHP the
certificate evidencing the shares of Everlert.
5.2 Consummation of Closing. All acts, deliveries and
confirmations comprising the Closing regardless of chronological
sequence shall be deemed to occur contemporaneously and
simultaneously upon the occurrence of the last act, delivery or
confirmation of the Closing and none of such acts, deliveries or
confirmations shall be effective unless and until the last of the
same shall have occurred. The time of the Closing has been
scheduled to correspond with the close of business at the
principal office of Everlert and, regardless of when the last
act, delivery or confirmation of the Closing shall take place,
the transfer of the shares shall be deemed to occur as of the
close of business at the principal office of Everlert on the date
of Closing.
VI. Termination.
6.1 Termination for Cause. If, pursuant to the provisions of
this Agreement, SAHP or Everlert is not obligated at the Closing
to consummate this Agreement, then the party who is not so
obligated may terminate this Agreement.
6.2 Termination Without Cause. Anything herein or elsewhere to
the contrary notwithstanding, this Agreement may be terminated
and abandoned at any time without further obligation or
liability on the part of any party in favor of any other by
mutual consent of Everlert and SAHP.
6.3 Termination Procedure. Any party having the right to
terminate this Agreement may terminate this Agreement prior to
Closing by delivering to the other party written notice of
termination, and thereupon, this Agreement will be terminated
without obligation or liability of any party.
VII. Indemnification.
7.1 SAHP's Indemnity. Subject to the terms of this Section,
SAHP hereby agrees to indemnify, defend and hold harmless
Everlert and its officers, directors, agents, attorneys,
accountants and affiliates from and against any and all losses,
claims, obligations, demands, assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and
expenses (Damages) asserted against or incurred by Everlert by
reason of or resulting from a breach by SAHP or NuCo of any
representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
7.2 Everlert's Indemnity. Subject to the terms of this Section,
Everlert hereby agrees to indemnify, defend and hold harmless
SAHP and its officers, directors, agents, attorneys, accountants
and affiliates from and against any and all losses, claims,
obligations, demands, assessments, penalties, liabilities, costs,
damages, reasonable attorneys' fees and expenses (Damages)
asserted against or incurred by SAHP by reason of or resulting
from a breach by Everlert of any representation, warranty or
covenant contained herein, or in any agreement executed pursuant
thereto.
7.3 Remedies Not Exclusive. The remedies provided for in this
Section shall not be exclusive of any other rights or remedies
available by one party against the other, either at law or in
equity.
VIII. Miscellaneous Provisions.
8.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified or supplemented only by a
written agreement signed by Everlert and SAHP.
8.2 Waiver of Compliance; Consents.
8.2.1 Any failure of any party to comply with any obligation,
covenant, agreement or condition herein may be waived by the
party entitled to the performance of such obligation, covenant or
agreement or who has the benefit of such condition, but such
waiver or failure to insist upon strict compliance with such
obligation, covenant, or agreement or condition will not operate
as a waiver of, or estoppel with respect to, any subsequent or
other failure.
8.2.2 Whenever this Agreement requires or permits consent by or
on behalf of any party hereto, such consent will be given in a
manner consistent with the requirements for a waiver of
compliance as set forth above.
8.3 Notices. All Notices, requests, demands and other
communications required or permitted hereunder will be in writing
and will be deemed to have been duly given when delivered by (i)
hand; (ii) reliable overnight delivery service; or (iii)
facsimile transmission.
If to Everlert, to: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
If to SAHP, to: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
If to NuCo, to: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
8.4 Titles and Captions. All section titles or captions
contained in this Agreement are for convenience only and shall
not be deemed part of the context nor effect the interpretation
of this Agreement.
8.5 Entire Agreement. This Agreement contains the entire
understanding between and among the parties and supersedes any
prior understandings and agreements among them respecting the
subject matter of this Agreement.
8.6 Agreement Binding. This Agreement shall be binding upon the
heirs, executors, administrators, successors and assigns of the
parties hereto.
8.7 Attorneys' Fees. In the event an arbitration, suit or action
is brought by any party under this Agreement to enforce any of
its terms, or in any appeal therefrom, it is agreed that the
prevailing party shall be entitled to reasonable attorneys fees
to be fixed by the arbitrator, trial court, and/or appellate
court.
8.8 Computation of Time. In computing any period of time
pursuant to this Agreement, the day of the act, event or
default from which the designated period of time begins to run
shall be included, unless it is a Saturday, Sunday or a legal
holiday, in which event the period shall begin to run on the next
day that is not a Saturday, Sunday or legal holiday.
8.9 Pronouns and Plurals. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the person or
persons may require.
8.10 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEVADA. THE PARTIES AGREE THAT ANY LITIGATION RELATING DIRECTLY
OR INDIRECTLY TO THIS AGREEMENT MUST BE BROUGHT BEFORE AND
DETERMINED BY A COURT OF COMPETENT JURISDICTION WITHIN THE STATE
OF NEVADA.
8.11 Arbitration. If at any time during the term of this
Agreement any dispute, difference, or disagreement shall arise
upon or in respect of this Agreement, and the meaning and
construction hereof, every such dispute, difference, and
disagreement shall be referred to a single arbiter agreed upon by
the parties, or if no single arbiter can be agreed upon, an
arbiter or arbiters shall be selected in accordance with the
rules of the American Arbitration Association and such dispute,
difference or disagreement shall be settled by arbitration in
accordance with the then prevailing commercial rules of the
American Arbitration Association, and judgment upon the award
rendered by the arbiter may be entered in any court having
jurisdiction thereof.
8.12 Presumption. This Agreement or any Section thereof shall
not be construed against any party due to the fact that said
Agreement or any section thereof was drafted by said party.
8.13 Further Action. The parties hereto shall execute and
deliver all documents, provide all information and take or
forbear from all such action as may be necessary or appropriate
to achieve the purposes of the Agreement.
8.14 Parties in Interest. Nothing herein shall be construed to
be to the benefit of any third party, nor is it intended that any
provision shall be for the benefit of any third party.
8.15 Confidentiality. The parties shall keep this Agreement and
its terms confidential, but any party may make such disclosures
as it reasonably considers are required by law or necessary to
obtain financing. In the event that the transactions
contemplated by this Agreement are not consummated for any
reason whatsoever, the parties hereto agree not to disclose or
use any confidential information they may have concerning the
affairs of other parties, except for information which is
required by law to be disclosed. Confidential information
includes, but is not limited to, financial records, surveys,
reports, plans, proposals, financial information, information
relating to personnel contracts, stock ownership, liabilities
and litigation.
8.16 Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party
hereto shall bear its own costs and expenses (including
attorneys' fees).
8.17 Severability. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future
laws effecting during the term hereof, such provision shall be
fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions
hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by
its severance herefrom. Furthermore, in lieu of such illegal,
invalid and unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar
in nature in its terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid
and enforceable.
8.18 Counterparts and Facsimile Signatures. This Agreement may
be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument. For purposes of this Agreement,
facsimile signatures shall be treated as originals until such
time that applicable pages bearing non-facsimile signatures are
obtained from the relevant party or parties.
IN WITNESS WHEREOF, the parties hereto have set their hands this
1st day of April, 1999.
Everlert, Inc., a Nevada Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, President
Safe at Home Products, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, President