EXHIBIT 2.6
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement") is made and entered into this
____ day of July, 1999, by and between certain former stockholders (the
"Stockholders") of IDX International, Inc., a Virginia corporation (the
"Company"); and eGlobe, Inc., a Delaware corporation ("Acquiror").
WHEREAS, the Stockholders, other former stockholders of the Company and
Acquiror entered into an Agreement and Plan of Merger ("Merger Agreement") dated
June 10, 1998, wherein Acquiror, through its wholly owned subsidiary, purchased
all of the issued and outstanding stock of the Company in exchange for (a)
500,000 shares of Series B Convertible Preferred Stock, par value $.001 per
share, of Acquiror (the "Series B Preferred Stock"), (b) warrants (the "Original
Warrants") to acquire up to 2,500,000 shares of Common Stock, par value $.001
per share ("Acquiror Common Stock"), of Acquiror and certain promissory notes in
the aggregate principal amount of $5 million, of which $4 million in aggregate
principal amount (the "Current Amount") (not including accrued interest) is
outstanding (the Subordinated Convertible Promissory Notes");
WHEREAS, the Company, the Stockholders and Acquiror desire to enter
into new arrangements with respect to such securities;
NOW, THEREFORE, in consideration of the promises, the mutual
representations, warranties and covenants set forth herein, the Stockholders and
Acquiror hereby agree as follows:
1. Exchange. At a closing to occur within 10 business days following
the execution and delivery of this Agreement (the "Closing"), the Stockholders
shall:
(a) exchange their issued and outstanding shares of Series B Preferred
Stock for an equal number of shares of Series H Convertible Preferred Stock, par
value $.001 per share, of Acquiror (the "Series H Preferred Stock");
(b) exchange their Original Warrants for warrants ("Replacement
Warrants") to acquire up to 1,250,000 shares of Acquiror Common Stock, pro rated
downward based upon the ratio of the number of shares subject to the Original
Warrants so exchanged to the number of shares subject to all Original Warrants;
and
(c) exchange their interests in the final two Subordinated Convertible
Promissory Notes for 400,000 shares of Series I Convertible Optional Redemption
Preferred Stock, par value $.001 per share, of Acquiror (the "Series I Preferred
Stock"), pro rated downward based upon the ratio of the interests in the two
promissory notes so exchanged to the Current Amount.
The terms of the Series H Preferred Stock and Series I Preferred Stock shall be
as set forth in the forms of Certificate of Designations for the Series H
Preferred Stock and the Series I Preferred Stock Convertible attached hereto as
Exhibit A and B, respectively. The terms of the Replacement Warrants shall be as
set forth in the form of Replacement Warrant attached hereto as Exhibit C.
2. Registration of Stock. Acquiror shall, following the Closing, use
its reasonable best efforts, consistent with policies and regulations of the
Securities and Exchange Commission, National Association of Securities Dealers
and the Nasdaq Stock Market, to register the Acquiror Common Stock issuable upon
the conversion of the Series H Preferred Stock and the Series I Preferred Stock,
or upon exercise of the Replacement Warrants, respectively, held by Stockholders
for public resale, including filing a registration statement with the SEC with
respect to such Acquiror Common Stock (a "Resale Registration Statement"),
provided that Acquiror shall not be required to disclose in such Resale
Registration Statement any material non-public information regarding Acquiror.
Acquiror shall use its best efforts to have the Resale Registration Statement
declared effective under the Securities Act as promptly as practicable after
such filing. Acquiror shall maintain the effectiveness of the Resale
Registration Statement until all Acquiror Common Stock registered pursuant to
the Resale Registration Statement has been disposed of by the Stockholders or
such Acquiror Common Stock is otherwise eligible for public resale under
applicable securities laws.
3. Waiver of Right of Setoff and Claims. Pursuant to the terms of the
Merger Agreement, Acquiror is entitled to reduce the aggregate principal balance
of the Subordinated Convertible Promissory Note due October 30, 1999 (the "Final
Note") by the Closing Indebtedness as defined in the Merger Agreement (the
"Right of Setoff"). Acquiror has represented that it has claims against the
former stockholders of the Company based upon misrepresentations and rights of
indemnification, including for a shortfall in net working capital (collectively,
"Claims"), in the amount (together with its Right of Setoff) of up to $1
million. Acquiror hereby waives its Right of Setoff and all Claims against the
Stockholders (which waiver does not apply to Acquiror's rights against former
stockholders of the Company not parties hereto).
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4. Extension of Dividend Note. Each Stockholder that previously owned
shares of the Company's preferred stock and accordingly has a right to its pro
rata portion of the proceeds from the Subordinated Convertible Promissory Note
in the original principal amount of $418,024 relating to the accrued but unpaid
dividends on the Company's preferred stock hereby agrees to the extension of the
maturity date under such note from May 31, 1999 to July 15, 1999.
5. Closing. At the Closing, the Stockholders shall (a) deliver to
Acquiror certificates evidencing all of their outstanding shares of Series B
Preferred Stock duly endorsed in blank or with duly executed stock powers
attached and their Original Warrants and (b) cause the Representative (as
defined in the Merger Agreement) to deliver the two Subordinated Convertible
Promissory Notes to reflect the retirement of their interests therein. In
exchange therefor, Acquiror shall deliver to the Stockholders (by delivery to
the Representative) at Closing (i) certificates evidencing the shares of Series
H Preferred Stock issuable pursuant to Section 1(a), (ii) the Replacement
Warrants issuable pursuant to Section 1(b) evidencing the right to purchase
shares of Acquiror Common Stock, (iii) certificates evidencing the shares of
Series I Preferred Stock issuable pursuant to Section 1(c) and (iv) new
Subordinated Convertible Promissory Notes representing the balance, if any, of
the two Subordinated Convertible Promissory Notes payable to the other former
stockholders of the Company.
At the Closing, to the extent permitted by law, each Stockholder's
shares of Series B Preferred Stock and Original Warrants shall, by virtue of
such Stockholder's execution of this Agreement, be deemed converted into the
right to receive an equal number of shares of Series H Preferred Stock and a
Replacement Warrant. As a result of such Stockholder's execution of this
Agreement, to the extent permitted by law, all of such Stockholder's shares of
Series B Preferred Stock and their Original Warrant shall cease to be
outstanding and shall be canceled and retired and shall cease to exist even if
the certificate representing such shares of Series B Preferred Stock or the
Original Warrant are not surrendered.
6. Miscellaneous.
(a) Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement of the Stockholders and
Acquiror.
(b) Waiver. Any breach of any obligation, covenants, agreement
or condition contained herein shall be deemed waived by the non-breaching party,
only by a writing, setting forth with particularity the breach being waived and
the scope of the waiver, but such waiver shall not operate
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as a waiver of, or estoppel with respect to, any subsequent or other breach. No
waiver shall be implied from any conduct or action of the non-breaching party.
No failure or delay by any party in exercising any right, power or privilege
hereunder or under the Series B Preferred Stock, the Replacement Warrants or the
Series I Preferred Stock and no course of dealing by any party shall operate as
a waiver and any right, power or privilege hereunder or under the Series B
Preferred Stock, the Replacement Warrants or the Series I Preferred Stock nor
shall any single or partial exercise thereof or the exercise of any other right,
power or privilege.
(c) Binding Nature of Agreement. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, but neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties. Any such assignment without the prior written consent of all the
parties shall be invalid.
(d) Governing Law. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to contracts made and performed
therein.
(e) Expenses. Except as provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
(f) Counterparts. This Agreement may be signed in counterparts
with the same effect as if all parties had signed one and the same instrument.
(g) Form of Signature. The parties hereto agree to accept a
facsimile transaction copy of their respective signatures as evidence of their
respective actual signatures to this Agreement; provided, however, that each
party who produces a facsimile signature agreement, by the express terms hereof,
to place, immediately after transmission of its signature by fax, a true and
correct original copy of its signature in overnight mail to the address of the
other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed the day and year first above written.
ACQUIROR
eGLOBE, INC.
By:
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Chairman and Chief Executive Officer
STOCKHOLDERS*
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▇▇▇▇ International, Inc.
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Chatwick Investments, Ltd.
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Yi-▇▇▇▇▇ ▇▇▇▇
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Trylon Partners, Inc.
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Teknos Communications, S.A.
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Tenrich Holdings, Ltd.
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Telecommunications Development
Corporation.
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Silicon Applications Corporation
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Kou ▇▇▇▇ ▇▇▇▇
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Chuang ▇▇ ▇▇▇▇
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Flextech Holdings Ltd.
*By ▇▇▇▇▇▇ ▇▇▇
under an Agreement to Amendment
authorizing execution of this
Agreement on such Stockholders'
behalf
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