10 (i)(b)
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (this "Agreement") is made this 20th day
of September 1996, by and between TAC, Inc. ("TAC") a Utah corporation and BRIA
Communications Corporation ("BRIA"), a New Jersey corporation with its principal
place of business at 147-17 Newport Avenue, Nephosit New York, 11694,
collectively referred to hereinafter as the "Parties."
PREMISES
The Parties desire to enter into an exchange of common stock on the
following basis:
1) One Million (1,000,000) shares of BRIA stock, restricted pursuant
to Rule 144 of the Securities Act of 1933, as amended for Two Hundred
Thousand (200,000) shares of TAC common stock, restricted pursuant to
Rule 144 of the Securities Act of 1933, as amended.
AGREEMENT
BASED on the above Premises, which are incorporated herein by reference
and in consideration of the mutual promises contained herein, the benefits to be
derived by the Parties hereunder and other good and valuable consideration, the
sufficiency of which is hereby expressly acknowledged, BRIA and TAC agree as
follows:
1. PURPOSE. BRIA and TAC agree to exchange common stock as described
above.
2. REPRESENTATIONS AND WARRANTIES OF TAC. TAC hereby represents and
warrants to BRIA that:
A. Authority. This Agreement has been duly executed by TAC. The
execution and performance of this Agreement will not violate or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which TAC is a party or
to which TAC is subject.
B. Organization. TAC is a corporation duly organized, validly
existing and in good standing under the laws of the state of Utah
and it has all corporate power necessary to engage in the
business in which it presently engages.
C. Information. No representation or warranty contained herein, nor
statement in any document, certificate or schedule furnished or
to be furnished pursuant to this Agreement by TAC in connection
with the transaction contemplated hereby, contains or contained
any untrue statement of a material fact, nor does or will omit to
state a material fact necessary to make any statement of fact
contained herein not misleading.
3. REPRESENTATIONS AND WARRANTIES OF BRIA. BRIA hereby represents and
warrants to TAC that:
A. Authority. This Agreement has been duly executed by BRIA. The
execution and performance of this Agreement will not violate, or
result in a breach of, or constitute a default in any agreement,
instrument, judgement, order or decree to which BRIA is a party
or to which BRIA is subject nor will such execution and
performance constitute a violation of or conflict with any
fiduciary duty to which BRIA is subject.
B. Organization. BRIA is a corporation duly organized, validly
existing and in good standing under the laws of the state of New
Jersey and it has all corporate power necessary to engage in the
business in which it presently engages.
C. Information. No representation or warranty contained herein, nor
statement in any document, certificate or schedule furnished or
to be furnished pursuant to this Agreement by BRIA in connection
with the transaction contemplated hereby, contains or contained
any untrue statement of a material fact, nor does or will omit to
state a material fact necessary to make any statement of fact
contained herein not misleading.
4. PRIVATE TRANSACTION. BRIA and TAC represent and warrant that the
exchange contemplated in this Agreement is being made in a private transaction
and is made for investment purposes only.
5. MISCELLANEOUS.
A. Entire Agreement. This instrument sets forth the entire agreement
between the Parties hereto and no prior written or oral statement
or agreement shall be recognized or enforced.
B. Severability. If a court of competent jurisdiction determines
that any clause or provision of this Agreement is invalid,
illegal or unenforceable, the other clauses and provisions of the
Agreement shall remain in full force and effect. The clauses and
provisions which the Court determines are void, illegal or
unenforceable shall be limited so that they remain in effect to
the extent permissible by law.
C. Assignment. None of the Parties may assign this Agreement without
the express written consent of the other Party. However, if the
other Party consents to the assignment, such assignment will bind
and inure to the benefit of the assignee.
D. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Utah, the state in which
this Agreement will be performed.
E. Venue. To the extent permitted by law, the Parties agree that the
federal and local courts in Utah shall have exclusive personal
and subject matter jurisdiction and venue for any claim or
dispute between the Parties, irrespective of the nature or source
of the claim or dispute. The Parties made this arrangement
because: the Parties mutually desire to remove uncertainty as to
such matters; one or more of the Parties and their property are
located in Utah; and this Agreement has been negotiated and
executed and will be performed in Utah.
F. Waiver of Jury Trial. To the extent permitted by law, the Parties
hereby irrevocably waive a jury trial in the event of litigation.
The Parties included this provision because of the cost and delay
of a jury trial and because the Parties believe that a jury trial
would not be necessary to resolve any dispute or claim between
them.
G. Attorney's Fees. If either Party institutes legal action or other
proceeding (including, but not limited to, arbitration) to
enforce or to declare any right or obligation under this
Agreement or as a result of a breach, default or
misrepresentation in connection with any of the provisions of
this Agreement, or otherwise because of a dispute among the
Parties, the successful or prevailing Party will be entitled to
recover reasonable attorney's fees. Attorney's fees shall include
fees for appeals, collections and other expenses incurred in such
action or proceeding. Legal fees shall be awarded in addition to
any other relief to which the prevailing Party may be entitled.
H. No Third Party Beneficiary. Nothing in this Agreement, expressed
or implied, is intended to confer, any rights or remedies upon
any person other than the Parties hereto and their successors.
I. Counterparts. The Parties understand and agree that they may
execute this Agreement in any number of identical counterparts,
via facsimile or mail. Each counterpart shall be deemed an
original for all purposes.
J. Further Assurances. At any time and from time to time, after the
date of this Agreement, each Party will execute such additional
instruments and take such actions as are reasonably necessary to
confirm or perfect title to the OTS Shares or the BRIA Stock or
otherwise to carry out the intent and purposes of this Agreement.
K. Notices. All notices or other communications hereunder shall be
in writing and shall be deemed to have been duly given when
delivered personally, or if mailed, by certified or registered
mail, return receipt requested, postage prepaid, on the earlier
of receipt or seven days after the date on which such notice or
communication is so mailed to BRIA or TAC at:
If to BRIA:
BRIA Communications Corporation
Attention: Richard Lifschutz, Chief Executive Officer
147-17 Newport Avenue
Nephosit, NY 11694
Telephone: (718) 318-1535
If to TAC:
TAC, Inc.
268 West 400 South, Suite 302
Salt Lake City, Utah 84101
L. Amendment or Waiver. Every right and remedy provided herein shall
be cumulative with every other right or remedy at law, or in
equity, and may be enforced concurrently herewith. 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.
M. Headings. The section and subsection headings in this Agreement
are inserted for convenience only. In the event of a conflict
between a heading and the text of this Agreement, the text shall
control the meaning and interpretation of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Stock Exchange
Agreement.
DATED this day of 20TH day of September, 1996.
"TAC, Inc."
/s/ Richard Surber
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Richard Surber, President
BRIA Communications Corporation
/s/ Richard Lifschutz
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Richard Lifschutz, Chief Executive Officer