STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Holdings, Inc.
a Delaware Corporation
and
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
a Delaware Corporation
effective as March 21, 2005
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 21st day of March, 2005, by and among ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Holdings, Inc., a
Delaware corporation with its principal place of business located at ▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ ("Holdings");
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation with its principal place of
business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇
("Mortgagebrokers") and the shareholders of Mortgagebrokers ("Shareholders") as
set forth on Exhibit A attached hereto.
Premises
A. This Agreement provides for the acquisition of Mortgagebrokers
whereby Mortgagebrokers shall become a wholly owned subsidiary of Holdings and
in connection therewith, the issuance of a total of 4,000,000 shares of Holdings
to the Mortgagebrokers shareholder.
B. The and boards of directors of Mortgagebrokers and Holdings
have determined, subject to the terms and conditions set forth in this
Agreement, that the transaction contemplated hereby is desirable and in the best
interests of their stockholders, respectively. This Agreement is being entered
into for the purpose of setting forth the terms and conditions of the proposed
acquisition.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ HOLDINGS INC.
As an inducement to and to obtain the reliance of Mortgagebrokers,
Holdings represents and warrants as follows:
Section 1.1 Organization. Holdings is a corporation duly organized,
validly existing, and in good standing under the laws of Delaware and has the
corporate power and is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Schedules attached hereto
(hereinafter defined) are complete and correct copies of the articles of
incorporation, bylaws and amendments thereto as in effect on the date hereof.
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of Holdings' articles of incorporation or
bylaws. Holdings has full power, authority and legal right and has taken all
action required by law, its articles of incorporation, its bylaws or otherwise
to authorize the execution and delivery of this Agreement.
Section 1.2 Capitalization. The authorized capitalization of Holdings
consists of 100,000,000 Common Shares, $0.0001 par value per share, and
5,000,000 Preferred Shares, $0.0001 par value per share. As of the date hereof,
Holdings has 28,860,000 common shares issued and outstanding.
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. Holdings has no securities, warrants or options authorized or
issued.
Section 1.3 Subsidiaries. Holdings has no subsidiaries.
Section 1.4 Tax Matters: Books and Records.
(a) The books and records, financial and others, of Holdings are in
all material respects complete and correct and have been
maintained in accordance with good business accounting practices;
and
(b) Holdings has no liabilities with respect to the payment of any
country, federal, state, county, or local taxes (including any
deficiencies, interest or penalties).
(c) Holdings shall remain responsible for all debts incurred by
Holdings prior to the date of closing.
Section 1.5 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or threatened by or against or affecting
Holdings or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse affect on the
business, operations, financial condition or income of Holdings. Holdings is not
in default with respect to any judgment, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator or governmental agency or
instrumentality or of any circumstances which, after reasonable investigation,
would result in the discovery of such a default.
Section 1.6 Material Contract Defaults. Holdings is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease or other commitment which is material to the business, operations,
properties, assets or condition of Holdings, and there is no event of default in
any material respect under any such contract, agreement, lease or other
commitment in respect of which Holdings has not taken adequate steps to prevent
such a default from occurring.
Section 1.7 Information. The information concerning Holdings as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made in
light of the circumstances under which they were made, not misleading. Holdings'
filings with the SEC are complete and accurate in all material respects and do
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made in light of the circumstances under
which they were made, not misleading.
Section 1.8 Title and Related Matters. Holdings has good and marketable
title to and is the sole and exclusive owner of all of its properties,
inventory, interest in properties and assets, real and personal (collectively,
the "Assets") free and clear of all liens, pledges, charges or encumbrances.
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Holdings owns free and clear of any liens, claims, encumbrances, royalty
interests or other restrictions or limitations of any nature whatsoever and all
procedures, techniques, marketing plans, business plans, methods of management
or other information utilized in connection with Holdings' business. No third
party has any right to, and Holdings has not received any notice of infringement
of or conflict with asserted rights of other with respect to any product,
technology, data, trade secrets, know-how, proprietary techniques, trademarks,
service marks, trade names or copyrights which, singly on in the aggregate, if
the subject of an unfavorable decision ruling or finding, would have a
materially adverse affect on the business, operations, financial conditions or
income of Holdings or any material portion of its properties, assets or rights.
Section 1.9 Contracts On the closing date:
(a) There are no material contracts, agreements franchises,
license agreements, or other commitments to which Holdings is
a party or by which it or any of its properties are bound:
(b) Holdings is not a party to any contract, agreement, commitment
or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree
or award materially and adversely affects, or in the future
may (as far as Holdings can now foresee) materially and
adversely affect , the business, operations, properties,
assets or conditions of Holdings; and
(c) Holdings is not a party to any material oral or written: (I)
contract for the employment of any officer or employee; (ii)
profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, agreement
or arrangement covered by Title IV of the Employee Retirement
Income Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv) guaranty of
any obligation for the borrowing of money or otherwise,
excluding endorsements made for collection and other
guaranties, of obligations, which, in the aggregate exceeds
$1,000; (v) consulting or other contract with an unexpired
term of more than one year or providing for payments in excess
of $10,000 in the aggregate; (vi) collective bargaining
agreement; (vii) contract, agreement or other commitment
involving payments by it for more than $10,000 in the
aggregate.
Section 1.10 Compliance With Laws and Regulations. To the best of
Holdings' knowledge and belief, Holdings has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
Holdings or would not result in Holdings incurring material liability.
Section 1.11 Insurance. All of the insurable properties of Holdings are
insured for Holdings` benefit under valid and enforceable policy or policies
containing substantially equivalent coverage and will be outstanding and in full
force at the Closing Date.
Section 1.12 Approval of Agreement. The directors of Holdings have
authorized the execution and delivery of the Agreement by and have approved the
transactions contemplated hereby.
Section 1.13 Material Transactions or Affiliations. There are no
material contracts or agreements of arrangement between Holdings and any person,
who was at the time of such contract, agreement or arrangement an officer,
director or person owning of record, or known to beneficially own ten percent
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(10%) or more of the issued and outstanding Common Shares of Holdings and which
is to be performed in whole or in part after the date hereof. Holdings has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into material transactions with any such affiliated person.
Section 1.14 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Holdings is a
party or to which any of its properties or operations are subject.
Section 1.15 Governmental Authorizations. Holdings has all licenses,
franchises, permits or other governmental authorizations legally required to
enable it to conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
Holdings of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
As an inducement to, and to obtain the reliance of Holdings,
Mortgagebrokers represents and warrants as follows:
Section 2.1 Organization. Mortgagebrokers is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate power and is duly authorized, qualified,
franchised and licensed under all applicable laws, regulations, ordinances and
orders of public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being conducted,
including qualification to do business as a foreign entity in the country or
states in which the character and location of the assets owned by it or the
nature of the business transacted by it requires qualification. Included in the
Attached Schedules (as hereinafter defined) are complete and correct copies of
the articles of incorporation, bylaws and amendments thereto as in effect on the
date hereof. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Mortgagebrokers's
certificate of incorporation or bylaws. Mortgagebrokers has full power,
authority and legal right and has taken all action required by law, its articles
of incorporation, bylaws or otherwise to authorize the execution and delivery of
this Agreement.
Section 2.2 Capitalization. The authorized capitalization of
Mortgagebrokers consists of 1,000 shares, $.01 par value per share and no
preferred shares. As of the date hereof, there are 1,000 shares issued and
outstanding.
All issued and outstanding common shares have been legally issued,
fully paid, are nonassessable and not issued in violation of the preemptive
rights of any other person. Mortgagebrokers has no other securities, warrants or
options authorized or issued.
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Section 2.3 Subsidiaries. Mortgagebrokers has no subsidiaries.
Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of
Mortgagebrokers are in all material respects complete and
correct and have been maintained in accordance with good
business accounting practices; and
(b) Mortgagebrokers has no liabilities with respect to the payment
of any country, federal, state, county, local or other taxes
(including any deficiencies, interest or penalties).
(c) Mortgagebrokers shall remain responsible for all debts
incurred prior to the closing.
Section 2.5 Information. The information concerning Mortgagebrokers as
set forth in this Agreement and in the attached Schedules is complete and
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not misleading.
Section 2.6 Title and Related Matters. Mortgagebrokers has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interests in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens, pledges, charges or
encumbrances. Except as set forth in the Schedules attached hereto,
Mortgagebrokers owns free and clear of any liens, claims, encumbrances, royalty
interests or other restrictions or limitations of any nature whatsoever and all
procedures, techniques, marketing plans, business plans, methods of management
or other information utilized in connection with Mortgagebrokers's business.
Except as set forth in the attached Schedules, no third party has any right to,
and Mortgagebrokers has not received any notice of infringement of or conflict
with asserted rights of others with respect to any product, technology, data,
trade secrets, know-how, proprietary techniques, trademarks, service marks,
trade names or copyrights which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a materially adverse
affect on the business, operations, financial conditions or income of
Mortgagebrokers or any material portion of its properties, assets or rights.
Section 2.7 Litigation and Proceedings. There are no actions, suits or
proceedings pending or threatened by or against or affecting Mortgagebrokers, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign or before any arbitrator of any kind that
would have a material adverse effect on the business, operations, financial
condition, income or business prospects of Mortgagebrokers. Mortgagebrokers does
not have any knowledge of any default on its part with respect to any judgment,
order, writ, injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality.
Section 2.8 Contracts. On the Closing Date:
(a) There are no material contracts, agreements, franchises,
license agreements, or other commitments to which
Mortgagebrokers is a party or by which it or any of its
properties are bound;
(b) Mortgagebrokers is not a party to any contract, agreement,
commitment or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ,
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injunction, decree or award which materially and adversely
affects, or in the future may (as far as Mortgagebrokers can
now foresee) materially and adversely affect, the business,
operations, properties, assets or conditions of
Mortgagebrokers; and
(c) Mortgagebrokers is not a party to any material oral or
written: (i) contract for the employment of any officer or
employee; (ii) profit sharing, bonus, deferred compensation,
stock option, severance pay, pension, benefit or retirement
plan, agreement or arrangement covered by Title IV of the
Employee Retirement Income Security Act, as amended; (iii)
agreement, contract or indenture relating to the borrowing of
money; (iv) guaranty of any obligation for the borrowing of
money or otherwise, excluding endorsements made for collection
and other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other contract with an
unexpired term of more than one year or providing for payments
in excess of $10,000 in the aggregate; (vi) collective
bargaining agreement; (vii) contract, agreement, or other
commitment involving payments by it for more than $10,000 in
the aggregate.
Section 2.9 No Conflict With Other Instruments.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which
Mortgagebrokers is a party or to which any of its properties or operations are
subject.
Section 2.10 Material Contract Defaults. To the best of
Mortgagebrokers's knowledge and belief, it is not in default in any material
respect under the terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations, properties, assets or
condition of Mortgagebrokers, and there is no event of default in any material
respect under any such contract, agreement, lease or other commitment in respect
of which Mortgagebrokers has not taken adequate steps to prevent such a default
from occurring.
Section 2.11 Governmental Authorizations. To the best of
Mortgagebrokers's knowledge, Mortgagebrokers has all licenses, franchises,
permits and other governmental authorizations that are legally required to
enable it to conduct its business operations in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities or corporation laws, no authorization, approval, consent or order of,
or registration, declaration or filing with, any court or other governmental
body is required in connection with the execution and delivery by
Mortgagebrokers of the transactions contemplated hereby.
Section 2.12 Compliance With Laws and Regulations. To the best of
Mortgagebrokers's knowledge and belief, Mortgagebrokers has complied with all
applicable statutes and regulations of any federal, state or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets or
condition of Mortgagebrokers or would not result in Mortgagebrokers's incurring
any material liability.
Section 2.13 Insurance. All of the insurable properties of
Mortgagebrokers are insured for Mortgagebrokers`s benefit under valid and
enforceable policy or policies containing substantially equivalent coverage and
will be outstanding and in full force at the Closing Date.
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Section 2.14 Approval of Agreement. The directors of Mortgagebrokers
have authorized the execution and delivery of the Agreement and have approved
the transactions contemplated hereby.
Section 2.15 Material Transactions or Affiliations. As of the Closing
Date, there will exist no material contract, agreement or arrangement between
Mortgagebrokers and any person who was at the time of such contract, agreement
or arrangement an officer, director or person owning of record, or known by
Mortgagebrokers to own beneficially, ten percent (10%) or more of the issued and
outstanding Common Shares of Mortgagebrokers and which is to be performed in
whole or in part after the date hereof except with regard to an agreement with
the Mortgagebrokers shareholders providing for the distribution of cash to
provide for payment of federal and state taxes on Subchapter S income.
Mortgagebrokers has no commitment, whether written or oral, to lend any funds
to, borrow any money from or enter into any other material transactions with,
any such affiliated person.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of Mortgagebrokers Securities. On
the Closing Date, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ the sole shareholder of Mortgagebrokers Common
Shares shall deliver to Holdings (i) certificates or other documents evidencing
all of the issued and outstanding Mortgagebrokers Common Shares, duly endorsed
in blank or with executed power attached thereto in transferrable form. On the
Closing Date, all previously issued and outstanding Common Shares of
Mortgagebrokers shall be transferred to Holdings, so that Mortgagebrokers shall
become a wholly owned subsidiary of Holdings.
Section 3.2 Issuance of Holdings Common Shares. In exchange for all of
the Mortgagebrokers Common Shares tendered pursuant to Section 3.1, Holdings
shall issue to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the sole Mortgagebrokers shareholder, a total of
4,000,000 Holdings common shares which are restricted in accordance with Rule
144 of the 1933 Securities Act.
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Holdings and Mortgagebrokers shall
execute, acknowledge and deliver (or shall cause to be executed, acknowledged
and delivered) any and all certificates, opinions, financial statements,
schedules, agreements, resolutions rulings or other instruments required by this
Agreement to be so delivered, together with such other items as may be
reasonably requested by the parties hereto and their respective legal counsel in
order to effectuate or evidence the transactions contemplated hereby, subject
only to the conditions to Closing referenced herein below.
Section 3.4 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on or about March 21, 2005 ("Closing
Date").
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or
majority interest of Shareholders of either Holdings or
Mortgagebrokers, respectively, at any time prior to the
Closing Date if:
(i) there shall be any action or proceeding before any
8
court or any governmental body which shall seek to
restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the
judgment of such board of directors, made in good
faith and based on the advice of its legal counsel,
makes it inadvisable to proceed with the exchange
contemplated by this Agreement; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose
approval is required to consummate such transactions.
In the event of termination pursuant to this paragraph (a) of this
Section 3.5, no obligation, right, or liability shall arise hereunder and each
party shall bear all of the expenses incurred by it in connection with the
negotiation, drafting and execution of this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the
Closing Date by action of the board of directors of Holdings
if Mortgagebrokers shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Mortgagebrokers contained herein shall be inaccurate in any
material respect, which noncompliance or inaccuracy is not
cured after 20 days written notice thereof is given to
Mortgagebrokers. If this Agreement is terminated pursuant to
this paragraph (b) of this Section 3.5, this Agreement shall
be of no further force or effect and no obligation, right or
liability shall arise hereunder.
(c) This Agreement may be terminated at any time prior to the
Closing Date by action of the board of directors of
Mortgagebrokers if Holdings shall fail to comply in any
material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations
or warranties of Holdings contained herein shall be inaccurate
in any material respect, which noncompliance or inaccuracy is
not cured after 20 days written notice thereof is given to
Holdings. If this Agreement is terminated pursuant to this
paragraph (d) of this Section 3.5, this Agreement shall be of
no further force or effect and no obligation, right or
liability shall arise hereunder.
In the event of termination pursuant to paragraph (b) and (c) of this
Section 3.5, the breaching party shall bear all of the expenses incurred by the
other party in connection with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated.
Section 3.6 Officers and Directors of Holdings After Acquisition. After
the Closing Date, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall remain the sole officer and director of
Holdings. Each director shall hold office until his successor shall have been
duly elected and shall have qualified or until his earlier death, resignation or
removal.
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing,
Holdings and Mortgagebrokers will each afford to the officers and authorized
representatives of the other full access to the properties, books and records of
each other, in order that each may have full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other and each
will furnish the other with such additional financial and operating data and
other information as to the business and properties of each other, as the other
shall from time to time reasonably request.
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Section 4.2 Availability of Rule 144. Holdings and Mortgagebrokers
shareholders holding "restricted securities, " as that term is defined in Rule
144 promulgated pursuant to the Securities Act will remain as "restricted
securities". Holdings is under no obligation to register such shares under the
Securities Act, or otherwise. The stockholders of Holdings and Mortgagebrokers
holding restricted securities of Holdings and Mortgagebrokers as of the date of
this Agreement and their respective heirs, administrators, personal
representatives, successors and assigns, are intended third party beneficiaries
of the provisions set forth herein. The covenants set forth in this Section 4.2
shall survive the Closing and the consummation of the transactions herein
contemplated.
Section 4.3 Special Covenants and Representations Regarding the
Holdings Common Shares to be Issued in the Exchange. The consummation of this
Agreement, including the issuance of the Holdings Common Shares to the
Shareholders of Mortgagebrokers as contemplated hereby, constitutes the offer
and sale of securities under the Securities Act, and applicable state statutes.
Such transaction shall be consummated in reliance on exemptions from the
registration and prospectus delivery requirements of such statutes which depend,
inter alia, upon the circumstances under which the Mortgagebrokers Shareholders
acquire such securities.
Section 4.4 Third Party Consents. Holdings and Mortgagebrokers agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein contemplated.
Section 4.5 Actions Prior and Subsequent to Closing.
(a) From and after the date of this Agreement until the Closing
Date, except as permitted or contemplated by this Agreement, Holdings and
Mortgagebrokers will each use its best efforts to:
(i) maintain and keep its properties in states of good
repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage
due to casualty;
(ii) maintain in full force and effect insurance
comparable in amount and in scope of coverage to that
now maintained by it;
(iii) perform in all material respects all of its
obligations under material contracts, leases and
instruments relating to or affecting its assets,
properties and business;
(b) From and after the date of this Agreement until the Closing
Date, Holdings will not, without the prior consent of Mortgagebrokers:
(i) except as otherwise specifically set forth herein,
make any change in its articles of incorporation or
bylaws;
(ii) declare or pay any dividend on its outstanding Common
Shares, except as may otherwise be required by law,
or effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii) enter into or amend any employment, severance or
agreements or arrangements with any directors or
officers;
(iv) grant, confer or award any options, warrants,
conversion rights or other rights not existing on the
date hereof to acquire any Common Shares; or
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(v) purchase or redeem any Common Shares.
Section 4.6 Indemnification.
(a) Holdings hereby agrees to indemnify Mortgagebrokers, each of
the officers, agents and directors and current shareholders of
Mortgagebrokers 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
(b) Mortgagebrokers hereby agrees to indemnify Holdings, each of
the officers, agents, directors and current shareholders of
Holdings 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 V
CONDITIONS PRECEDENT TO OBLIGATIONS OF HOLDINGS
The obligations of Holdings under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.1 Accuracy of Representations. The representations and
warranties made by Holdings in this Agreement were true when made and shall be
true at the Closing Date with the same force and effect as if such
representations and warranties were made at the Closing Date (except for changes
therein permitted by this Agreement), and Holdings shall have performed or
compiled with all covenants and conditions required by this Agreement to be
performed or complied with by Holdings prior to or at the Closing.
Mortgagebrokers shall be furnished with a certificate, signed by a duly
authorized officer of Holdings and dated the Closing Date, to the foregoing
effect.
Section 5.2 Director Approval. The Board of Directors of Holdings shall
have approved this Agreement and the transactions contemplated herein.
Section 5.3 Officer's Certificate. Mortgagebrokers shall have been
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of Holdings to the effect that: (a) the representations and
warranties of Holdings set forth in the Agreement and in all Exhibits, Schedules
and other documents furnished in connection herewith are in all material
respects true and correct as if made on the Effective Date; (b) Holdings has
performed all covenants, satisfied all conditions, and complied with all other
terms and provisions of this Agreement to be performed, satisfied or complied
with by it as of the Effective Date; (c) since such date and other than as
previously disclosed to Mortgagebrokers, Holdings has not entered into any
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material transaction other than transactions which are usual and in the ordinary
course if its business; and (d) no litigation, proceeding, investigation or
inquiry is pending or, to the best knowledge of Holdings, threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement or, to the extent not disclosed in
the Holdings Schedules, by or against Holdings which might result in any
material adverse change in any of the assets, properties, business or operations
of Holdings.
Section 5.4 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of Holdings.
Section 5.5 Other Items. Mortgagebrokers shall have received such
further documents, certificates or instruments relating to the transactions
contemplated hereby as Mortgagebrokers may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF MORTGAGEBROKERS
The obligations of Mortgagebrokers under this Agreement are subject to
the satisfaction, at or before the Closing date (unless otherwise indicated
herein), of the following conditions:
Section 6.1 Accuracy of Representations. The representations and
warranties made by Mortgagebrokers in this Agreement were true when made and
shall be true as of the Closing Date (except for changes therein permitted by
this Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Mortgagebrokers shall
have performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Mortgagebrokers prior to or at the
Closing. Holdings shall have been furnished with a certificate, signed by a duly
authorized executive officer of Mortgagebrokers and dated the Closing Date, to
the foregoing effect.
Section 6.2 Director Approval. The Board of Directors of
Mortgagebrokers shall have approved this Agreement and the transactions
contemplated herein.
Section 6.3 Officer's Certificate. Holdings shall be furnished with a
certificate dated the Closing date and signed by a duly authorized officer of
Mortgagebrokers to the effect that: (a) the representations and warranties of
Mortgagebrokers set forth in the Agreement and in all Exhibits, Schedules and
other documents furnished in connection herewith are in all material respects
true and correct as if made on the Effective Date; and (b) Mortgagebrokers had
performed all covenants, satisfied all conditions, and complied with all other
terms and provisions of the Agreement to be performed, satisfied or complied
with by it as of the Effective Date.
Section 6.4 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of
Mortgagebrokers.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each party hereto hereby represents
and warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section 7.2 Law, Forum and Jurisdiction. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Delaware,
United States of America.
Section 7.3 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Holdings: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇
If to Mortgagebrokers: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
Section 7.4 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 7.5 Confidentiality. Each party hereto agrees with the other
party that, unless and until the transactions contemplated by this Agreement
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
Section 7.6 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
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Section 7.7 Third Party Beneficiaries.This contract is solely between
Holdings and Mortgagebrokers and except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 7.8 Entire Agreement.This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
Section 7.9 Survival; Termination. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for 18 months.
Section 7.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.11 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.12 Expenses. Each party herein shall bear all of their
respective cost s and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
Section 7.13 Headings; Context. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
Section 7.14 Benefit. This Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
Section 7.15 Public Announcements. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
Section 7.16 Severability. In the event that any particular provision
or provisions of this Agreement or the other agreements contained herein shall
for any reason hereafter be determined to be unenforceable, or in violation of
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any law, governmental order or regulation, such unenforceability or violation
shall not affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the respective parties
hereto.
Section 7.17 Failure of Conditions; ▇▇▇▇▇▇▇▇▇▇▇.▇▇ the event of any of
the conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, either of the parties have the right either to proceed or,
upon prompt written notice to the other, to terminate and rescind this
Agreement. In such event, the party that has failed to fulfill the conditions
specified in this Agreement will liable for the other parties legal fees. The
election to proceed shall not affect the right of such electing party reasonably
to require the other party to continue to use its efforts to fulfill the unmet
conditions.
Section 7.18 No Strict Construction. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against either party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.19 Execution Knowing and Voluntary. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) is executing
this Agreement voluntarily, free from any influence, coercion or duress of any
kind.
Section 7.20 Amendment. At any time after the Closing Date, this
Agreement may be amended by a writing signed by both parties, with respect to
any of the terms contained herein, and any term or condition of this Agreement
may be waived or the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.21 Conflict of Interest. Both Mortgagebrokers and Holdings
understand that ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP is representing both parties in this
transaction which represents a conflict of interest. Both Mortgagebrokers and
Holdings have the right to different counsel due to this conflict of interest.
Notwithstanding the above, both Mortgagebrokers and Holdings agree to waive this
conflict and have ▇▇▇▇▇▇ & Jaclin, LLP represent both parties in the
above-referenced transaction. Both Mortgagebrokers and Holdings agree to hold
this law firm harmless from any and all liabilities that may occur or arise due
to this conflict.
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IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
and entered into as of the date first above written.
ATTEST: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ HOLDINGS INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------- ----------------------------------
ATTEST: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------- ----------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
SHAREHOLDERS
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------- ----------------------------------