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EXHIBIT 6(p)
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT ("Agreement") is executed this 30th day
of September, 1999, by and between Austin ▇▇▇▇▇▇▇.▇▇▇ Corporation, a Nevada
corporation (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇ has advanced funds to the Company in the aggregate
principal amount of $1,433,000 (the "Loan"); and
WHEREAS, the Company is authorized to issue 20,000,000 shares of its
Preferred Stock, of which no shares have been issued as of the date of this
Agreement; and
WHEREAS, in order to facilitate the efficient and orderly operation of
the business of the parties hereto, it is desirable for ▇▇▇▇▇▇ to exchange (i)
his right to receive repayment of the Loan (the "Payment Right") for (ii) shares
of Series A Preferred Stock of the Company as set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and for the purpose of
stating the method, terms and conditions of the exchange of the shares described
herein and such other provisions as the parties deem necessary or desirable, the
parties hereto agree as follows:
1. Exchange of Payment Right for Company Preferred Stock. For the
consideration and upon the terms provided herein, the Company hereby issues and
delivers to ▇▇▇▇▇▇ a certificate for 1,500,000 shares of its Series A Preferred
Stock, par value $0.01 per share, to have and to hold together with all and
singular the rights and appurtenances thereto, and ▇▇▇▇▇▇ hereby forgives all
outstanding indebtedness due it from the Company, including, without limitation,
the Payment Right with respect to the Loan, and ▇▇▇▇▇▇ releases the Company from
all liability therefor.
2. The Company Representations. The Company hereby represents and
warrants to ▇▇▇▇▇▇ as follows:
(a) The Company is a Nevada corporation which has been duly
organized and is validly existing and in good standing under the laws of the
State of Nevada and has the corporate power to own all of its property and
assets and to carry on its business as it is now being conducted.
(b) The Company has full power, authority and legal right to enter
into this Agreement and to consummate the transactions contemplated herein. Upon
execution and delivery of this Agreement, it will be a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms except as enforcement of remedies may be limited by bankruptcy,
receivership, reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights.
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(c) There are no actions, suits, labor disputes, arbitrations,
grievance proceedings, government investigations or other proceedings pending
or, to the knowledge of the officers of the Company, threatened against or
affecting the Company or any of its properties or assets, at law or in equity,
or before or by any governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind,
which might affect the Company's ability to consummate the transactions called
for herein.
(d) The Company has the authority to issue shares of its Series A
Preferred Stock and when such shares are issued to ▇▇▇▇▇▇ pursuant to this
Agreement, such shares will be validly issued and outstanding, fully paid,
nonassessable and free and clear of all mortgages, pledges, liens, security
interests, options, rights, encumbrances or claims.
3. ▇▇▇▇▇▇ Representations. ▇▇▇▇▇▇ hereby warrants and represents to the
Company as follows:
(a) ▇▇▇▇▇▇ is an individual resident of the State of Texas, and has
the authority and power to own all of his property and assets and to carry on
his business as it is now being conducted.
(b) Upon execution and delivery of this Agreement, such Agreement
will be a legal, valid and binding obligation of ▇▇▇▇▇▇ enforceable against
▇▇▇▇▇▇ in accordance with its terms except as enforcement of remedies may be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights.
(c) There are no actions, suits, labor disputes, arbitrations,
grievance proceedings, government investigations or other proceedings pending
or, to the knowledge of ▇▇▇▇▇▇, threatened against or affecting ▇▇▇▇▇▇ or any of
his properties or assets, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind, which might affect ▇▇▇▇▇▇'▇
ability to consummate the transactions called for herein.
(d) ▇▇▇▇▇▇ further represents, warrants, and covenants as follows:
(i) ▇▇▇▇▇▇ acknowledges that the shares to be delivered to him
pursuant to this Agreement have not been and are not being registered
under the Securities Act of 1933, as amended (the "1933 Act") or the
securities laws of any state and that accordingly such stock is not fully
transferable except as permitted under various exemptions contained in
the 1933 Act, the laws of the applicable states, the rules of the
Securities and Exchange Commission.
(ii) ▇▇▇▇▇▇ covenants, warrants and represents to the Company
that none of the shares of Series A Preferred Stock sold to him pursuant
to this Agreement will be offered, sold, assigned, pledged, hypothecated,
transferred or otherwise disposed of by him, except after full compliance
with all of the applicable provisions of the 1933 Act, applicable state
laws or pursuant to an exemption therefrom.
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(iii) ▇▇▇▇▇▇ is acquiring the shares under this Agreement for
his own account, for investment, and not with a view to the resale or
other disposition thereof; that has no intention of selling,
transferring, hypothecating or otherwise disposing of all or any part of
such shares at any particular time, for any particular price, or upon the
happening of any particular event or circumstances; and ▇▇▇▇▇▇ further
understands that the Company is relying upon the truth and accuracy of
these covenants, warranties and representations in issuing the shares
without first registering the same under the 1933 Act or the applicable
state laws.
▇▇▇▇▇▇ further agrees that the certificates evidencing the
shares it will receive may contain the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED
UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS THEN IN EFFECT
WITH RESPECT TO SUCH SHARES OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENT OF SUCH ACT IS THEN IN FACT APPLICABLE
TO SUCH SALE, TRANSFER, OR OFFER FOR SALE.
(iv) ▇▇▇▇▇▇ has received and has read this Agreement and a copy
of the Company's recent filing on Form 10-SB with the Securities and
Exchange Commission. ▇▇▇▇▇▇ has had the opportunity to have an officer of
the Company answer any questions regarding the terms and conditions of
this particular investment. ▇▇▇▇▇▇ has further had the opportunity to
obtain any additional information necessary to verify the accuracy of the
information contained in this Agreement. ▇▇▇▇▇▇ has made an investigation
with respect to certain of the information set out herein and has been
given access to information by the Company and in making the decision to
purchase the shares has relied solely upon review of the documents
mentioned in this paragraph, the representations made by the Company
herein and the independent investigations made by representatives of
▇▇▇▇▇▇.
(v) ▇▇▇▇▇▇ represents that he is an accredited investor as that
term is defined in Regulation D, 17 C.F.R. ss. 230.501(a). ▇▇▇▇▇▇ is
experienced in investment and business matters and has received all
financial and other information he has requested about the Company and
its business. He is able to bear the economic risk of his investment in
the Series A Preferred Stock, and he has sufficient financial resources
to sustain a loss of my entire investment in the Company without material
economic hardship if such a loss should occur.
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4. Additional Documents. From time to time, as and when requested by
the Company, ▇▇▇▇▇▇ shall execute and deliver or cause to be executed and
delivered all such other instruments, and shall take or cause to be taken all
such other action, as the Company may deem necessary or desirable in order to
consummate the terms of this Agreement.
5. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, and their respective successors and
assigns.
6. Laws. This Agreement shall be performable in ▇▇▇▇▇▇ County, Texas,
and shall be governed by and construed and enforced in accordance with the laws
of the State of Texas.
7. Amendments. No amendments, modifications or alterations of the terms
hereto shall be binding unless the same be in writing dated subsequent to the
date hereof and duly exercised by the parties hereto.
8. Survival of Representations. Each party hereto covenants and agrees
that the warranties and representations in this Agreement, and in any document
delivered or to be delivered pursuant hereto, shall survive the date hereof.
9. Arbitration. Any controversy or claim arising out of this Agreement,
or the breach thereof, shall be settled by arbitration in accordance with the
rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitration may be entered in any court having jurisdiction
thereof. The arbitration agreement set forth herein shall not limit a court from
granting a temporary restraining order or preliminary injunction in order to
preserve the status quo of the parties pending arbitration. Further, the
arbitrator(s) shall have power to enter such orders by way of interim award, and
they shall be enforceable in court. The place of such arbitration shall be in
▇▇▇▇▇▇ County, Texas.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof superseding any and
all prior or contemporaneous oral or prior written agreements, proposals,
letters of intent and understandings, and cannot be modified, changed, waived or
terminated except by a writing which expressly states that it is an amendment,
modification or waiver, refers to this Agreement and is signed by the party to
be charged. No course of conduct or dealing shall be construed to modify, amend
or otherwise affect any of the provisions hereof.
11. Severability. If any portion of this Agreement is declared by a
court of competent jurisdiction to be invalid or unenforceable, such declaration
shall not affect the validity of the remaining provisions.
12. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
effective as of the date stated above.
AUSTIN ▇▇▇▇▇▇▇.▇▇▇ CORPORATION,
a Nevada corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Individually
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