EXHIBIT 2.7
NETSOURCE INTERACTIVE
TRANSPHERE INTERNATIONAL
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT is made as of June 4, 1996, by and between
NetSource Interactive, a Delaware corporation (the "Company") and the
undersigned holder (the "Shareholder") of common stock of Transphere
International, a California corporation ("Transphere").
R E C I T A L S
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A. The Shareholder holds of record all of the outstanding shares of
the common stock (the "Common Shares") of Transphere.
B. The Shareholder wishes to transfer all of his Common Shares in
Transphere in exchange for shares of common stock in the Company as set forth in
Exhibit A hereto ("Company Shares").
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NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties hereto agree as follows:
A G R E E M E N T
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The parties hereby agree as follows:
1. Exchange.
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1.1 Issuance of the Company Shares. Subject to the terms and
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conditions hereof, the Company will issue to the Shareholder that number of
Company Shares indicated by the Shareholder's name on the exchange schedule (the
"Exchange Schedule") attached hereto as Exhibit A in exchange for the surrender
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by the Shareholder of all of such Shareholder's Common Shares.
2. Closing Date; Delivery.
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2.1 Closing Date.
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(a) The closing of the exchange shall be held at the office
of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, on
June 4, 1996, or a such other time and place as the Company and the Shareholder
may agree in writing.
(b) The closing referred to in subsection (a) above is
hereinafter referred to as the "Closing" and the date of the Closing is
hereinafter referred to as the "Closing Date".
2.2 Delivery.
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(a) Subject to the terms of this Agreement, at the Closing
the Company will deliver to the Shareholder a stock certificate reflecting the
issuance of the Company Shares to the Shareholder as set forth herein against
delivery of the certificate(s) representing the Shareholder's Common Shares
accompanied by duly executed stock power(s) for such certificate(s).
(b) Despite anything in this Agreement to the contrary, the
rights and obligations of the parties to this Agreement under Section 3 of this
Agreement are conditional upon the occurrence of the Closing upon satisfaction
of all conditions of Closing set forth in Section 5.1 of this Agreement and are
and will be of no force and effect until the occurrence of the Closing. The
parties hereto agree that this Agreement may be terminated unilaterally by the
Company at any time prior to the Closing on written notice to the other parties
hereto.
3. Representations and Warranties of the Company.
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The Company hereby represents and warrants to the Shareholder as
follows:
3.1 Organization and Standing. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware.
3.2 Legal Power. The Company has now, or will have at the
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Closing Date, all requisite power to enter into this Agreement, to issue the
Company Shares hereunder, and to carry out and perform its obligations under the
terms of this Agreement, and has or will have taken all actions necessary for
the authorization, execution and delivery of this Agreement and the issuance of
the Company Shares set forth on Exhibit A. This Agreement is a valid and binding
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obligation of the Company enforceable in accordance with its respective terms,
except as the same may be limited by bankruptcy, insolvency, moratorium, and
other laws of general application affecting the enforcement of creditors'
rights.
3.3 Valid Issuance. The Company Shares, when issued in
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compliance with the provisions of this Agreement, will be validly issued, fully
paid and nonassessable, and will be free of any liens or encumbrances; provided,
however, that the Company Shares may be subject to restrictions on transfer
under state and/or federal securities laws as set forth herein, and as may be
required by future changes in such laws.
2.
4. Representations and Warranties of the Shareholder and Restrictions
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on Transfer Imposed by the Securities Act of 1933.
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4.1 Disclosure. The Shareholder represents and warrants to the
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Company that the Shareholder has had full opportunity to discuss the transaction
covered by this Agreement with the managements of Transphere and the Company,
and has had full access to the books and records of Transphere and the Company.
4.2 Representations and Warranties by the Shareholder Regarding
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Investment Intent; Restrictions on Transfer. The Shareholder represents and
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warrants to the Company as follows:
(a) The Company Shares to be received by the Shareholder
will be acquired for the Shareholder's own account, for investment and not with
a view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and that the Shareholder has no current commitment or
obligation, contingent or otherwise, to anyone other than the Company, to
dispose of the Company Shares and has no current plan or intent to dispose of
the Company Shares other than in a public offering registered by the Company or
any successor corporation under the Securities Act or under Rule 144 under the
Securities Act following such a registered public offering.
(b) The Shareholder understands and acknowledges that the
offering of the Company Shares pursuant to this Agreement will not be registered
under the Securities Act on the grounds that the exchange of the Common Shares
for the Company Shares contemplated by this Agreement is exempt from
registration under the Securities Act and exempt from qualification pursuant to
Section 25102(f) of the California Corporate Securities Law of 1968, as amended
(the "Law"), and that the Company's reliance upon such exemption and
qualification is predicated upon the Shareholder's representations set forth in
this Agreement. The Shareholder acknowledges and understands that the Company
Shares must be held indefinitely unless the Company Shares are subsequently
registered under the Securities Act and qualified under the Law or an exemption
from such registration and such qualification is available.
(c) The Shareholder covenants that in no event will the
Shareholder dispose of any of the Company Shares (other than in conjunction with
an effective registration statement for the Company Shares under the Securities
Act or in compliance with Rule 144 promulgated under the Securities Act) unless
and until (i) the Shareholder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed, true and
accurate statement of the circumstances surrounding the proposed disposition,
and (ii) if requested by the Company, the Shareholder shall have furnished the
Company with an opinion of counsel satisfactory in form and substance to the
Company to the effect that (x) such disposition will not require registration
under the Securities Act or qualification of the Company Shares under the Law or
(y) appropriate action necessary for compliance with the Securities Act, the Law
and any other applicable state, local or foreign law has been taken.
3.
(d) The Shareholder understands that if the Company does not
register its securities with the Securities and Exchange Commission ("SEC")
pursuant to Section 12 or become subject to Section 15(d) of the Securities
Exchange Act of 1934, as amended, or supply information pursuant to Rule 15c2-11
thereunder or if a registration statement covering the Company Shares (or a
filing pursuant to the exemption from registration under Regulation A of the
Securities Act covering the Company Shares) under the Securities Act is not in
effect when it desires to sell the Company Shares, the Shareholder may be
required to hold the Company Shares for an indeterminate period. The Shareholder
also understands that any sale of the Company Shares that might be made by the
Shareholder in reliance upon Rule 144 under the Securities Act may be made only
in limited amounts in accordance with the terms and conditions of that rule.
(e) The Shareholder's ownership of such Shareholder's Common
Shares consists of good and valid title, free and clear of all security
interests, liens, encumbrances, options, calls, pledges, trusts, voting trusts
and other agreements, covenants, restrictions, reservations and other burdens
("Restrictions"), except (i) Restrictions imposed pursuant to applicable federal
and state securities laws, (ii) such Restrictions as are set forth in common
stock option agreements, warrants or stock purchase agreements executed by
Transphere.
(f) The Shareholder's execution and delivery of this
Agreement and one or more stock powers with respect to such Shareholder's Common
Shares shall transfer to and vest in good and valid title to such Shareholder's
Common Shares free and clear of all Restrictions except such Restrictions as are
referenced in Section 4.1(e) above.
(g) The execution and delivery of this Agreement by the
Shareholder and the consummation of the transactions contemplated hereby will
not result in the breach of any term of or constitute a default under, any
contract, agreement, commitment, indenture, mortgage, note or other instrument
or obligation to which the Shareholder is a party or by which such Shareholder
or any of such Shareholder's Common Shares may be bound.
(h) The Shareholder has full legal capacity, power and
authority to execute, deliver, and perform his, her or its obligations under
this Agreement.
(i) This Agreement has been duly executed and delivered by
the Shareholder and constitutes a legal, valid and binding obligation of such
Shareholder, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency and other laws affecting the enforcement of
creditors' rights and by the availability of equitable remedies.
4.
5. Conditions to Closing.
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5.1 Conditions to Holders' Obligations. The obligation of the
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Shareholder to exchange the Shareholder's Common Shares for Company Shares at
the Closing is subject to the fulfillment, on or prior to the Closing Date, of
the following conditions:
(a) Representations and Warranties Correct. The
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representations and warranties made by the Company in Section 3 hereof
shall be true and correct when made, and shall be true and correct in all
material respects on the Closing Date with the same force and effect as if
they had been made on and as of said date. The Company shall have performed
in all material respects all obligations and conditions herein required to
be performed or observed by it on or prior to the Closing Date.
(b) Consents and Waivers. The Company shall have obtained in
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a timely fashion any and all consents, permits and waivers necessary or
appropriate for consummation of the transactions contemplated by this
Agreement.
5.2 Conditions to Obligations of the Company. The Company's
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obligation to issue the Company Shares to the Shareholder at the Closing is
subject to the fulfillment to the Company's satisfaction on or prior to the
Closing Date of the following conditions, any of which may be waived by the
Company in its sole discretion:
(a) Representations and Warranties Correct. The
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representations and warranties made by the Shareholder in Section 4 hereof
shall be true and correct when made, and shall be true and correct on the
Closing Date with the same force and effect as if they had been made on and
as of said date.
(b) Consents and Waivers. The conditions set forth in
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Section 5.1(b) shall have been fulfilled.
6. Miscellaneous.
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6.1 Governing Law. This Agreement shall be governed in all
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respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
6.2 Survival. The representations, warranties, covenants and
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agreements made herein shall survive the Closing of the transactions
contemplated hereby.
6.3 Successors and Assigns. Except as otherwise expressly
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provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
5.
6.4 Further Acts. The parties hereto shall perform all further
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acts and execute and deliver all documents that may be reasonably necessary to
carry out their obligations hereunder and the purposes of this Agreement.
6.5 Changes and Termination. Subject to Section 2.1(a), neither
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this Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the Company and
the Shareholder.
6.6 Entire Agreement. This Agreement and the other documents
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delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
6.7 Notices, etc. All notices and other communications required
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or permitted hereunder shall be in writing and shall be delivered personally or
mailed by first class mail, postage prepaid, addressed (a) if to the
Shareholder, at such Shareholder's address set forth beneath such Shareholder's
signature on the signature page hereto, or at such other address as such
Shareholder shall have furnished to the Company, or (b) if to the Company, at
the address of the Company set forth beneath the Company's signature on the
signature page hereto, or at such other address as the Company shall have
furnished to the Shareholder in writing.
6.8 Severability. In case any provision of this Agreement shall
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be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions of this Agreement shall not in any way be affected
or impaired thereby.
6.9 Expenses. The Company and the Shareholder shall each bear
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its own expenses and legal fees in connection with this Agreement and the
transactions contemplated hereby.
6.10 Titles and Subtitles. The titles of the sections and
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subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
6.11 Counterparts. This Agreement may be executed in any number
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of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.12 Delays or Omissions. No delay or omission to exercise any
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right, power or remedy accruing to the Company or to the Shareholder shall
impair any such right, power or remedy of the Company or the Shareholder, nor
shall it be construed to be a waiver of any breach or default under this
Agreement, or any acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any delay or omission to exercise any
right, power or remedy or any waiver of any single breach or default be deemed a
waiver of any other right, power or remedy or breach or default theretofore or
thereafter occurring. All remedies, either under this Agreement, or by law
otherwise afforded to the Company or the Shareholder, shall be cumulative and
not alternative.
6.
NETSOURCE INTERACTIVE
a Delaware corporation
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The foregoing Exchange Agreement is hereby agreed to and accepted. The
number and type of Common Shares of Transphere owned and held of record by the
undersigned are accurately set forth on Exhibit A hereto.
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SHAREHOLDER:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
7.
EXHIBIT A
EXCHANGE SCHEDULE
Shareholder Common Shares Company Shares
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 4,000 9,192,708
8.