STOCK EXCHANGE AGREEMENT
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THIS STOCK EXCHANGE AGREEMENT (the "Agreement"), dated as of March 24,
2000, by and among FIRST CAPITAL INTERNATIONAL, INC., a Delaware corporation
("FCAI"), and MIHHAIL DIDYK, personal code 35001040297, of Tallinn, Republic of
Estonia (individually, a "STOCKHOLDER" and collectively the "STOCKHOLDERS"),
such person being registered holder of capital stock of AS Mainor Anet, an
Estonian corporation ("ANET"), and ANET for the purposes of Articles VII and
VIII.
R E C I T A L S
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WHEREAS, each Stockholder is the record and beneficial owner of the number
of shares of common stock, par value 1,000 EEK per share, of ANET indicated in
the table set forth as Exhibit A to this Agreement (which shares are hereinafter
collectively referred to as the "ANET Stock");
WHEREAS, FCAI desires to acquire from the Stockholders, and the
Stockholders desire to convey to FCAI, all of the issued and outstanding ANET
Stock owned by the Stockholders in exchange for shares of voting common stock,
$0,001 par value of FCAI (the "FCAI Stock"), all on the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements and the respective representations and warranties herein contained in
this Agreement, and on the terms and subject to the conditions set forth in this
Agreement, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
EXCHANGE OF SHARES
Section 1.1 ANET Stock. At the Closing (as defined below), each
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Stockholder shall transfer, convey and deliver to FCAI the number of shares of
ANET Stock set forth opposite their name on Exhibit A hereto, and shall deliver
to FCAI stock certificates representing the ANET Stock, duly endorsed to FCAI or
accompanied by duly executed stock powers in form and substance satisfactory to
FCAI.
Section 1.2 FCAI STOCK. At the Closing, in exchange for each share of ANET
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Stock transferred to FCAI, FCAI shall issue and deliver to each Stockholder the
number of shares of FCAI Stock set forth opposite their name on Exhibit A
hereto. The transaction by which the transfer shall take place is referred to in
this Agreement as the "Exchange".
Stock Exchange Agreement - 1
ARTICLE II
THE CLOSING
The Closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at 10:00 A.M. on March 24, 2000 (the "Closing
Date"), at the offices of FCAI, 5120 Woodway, Suite 9004, Houston, Texas 77056
or at such other time and place as agreed upon among the parties hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby severally represents and warrants to FCAI
as follows:
Section 3.1 Ownership of the ANET Stock. The Stockholder owns,
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beneficially and of record, that number of shares of ANET Stock set forth
opposite the Stockholder's name on Exhibit A hereto; except for restrictions
imposed by national, federal and state securities laws, (i) such shares are
owned by such Stockholder free and clear of any liens, claims, equities,
charges, options, rights of first refusal, or encumbrances; (ii) the Stockholder
has the unrestricted right and power to transfer, convey and deliver full
ownership of such shares without the consent or agreement of any other person
and without any designation, declaration or filing with any governmental
authority; and, (iii) upon the transfer of such shares to FCAI as contemplated
herein, FCAI will receive good and valid title thereto, free and clear of any
liens, claims, equities, charges, options, rights of first refusal, encumbrances
or other restrictions.
Section 3.2 Organization. If the Stockholder is either a corporation,
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limited liability company or partnership, it represents and warrants that it is
duly organized, validly existing and in good standing under the laws of the
state or nation of its incorporation or formation, with full power and authority
and all necessary governmental and regulatory licenses, permits and
authorizations to carry on the businesses in which it is engaged, to own the
properties that it owns currently and will own at the Closing, and to perform
its obligations under this Agreement. If the Stockholder is a corporation,
limited liability company or partnership it is qualified as a foreign
corporation, foreign limited liability company or foreign partnership (which
ever the case may be) and is in good standing in each jurisdiction in which the
failure to qualify would have material adverse effect on the business,
properties or condition (financial or otherwise) of the corporate, limited
liability company or partnership Stockholder.
Section 3.3 Authorization. If the Stockholder is a person, then he or she
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is of the full age of majority, with full power, capacity and authority to enter
into this Agreement and perform the obligations contemplated hereby by and for
himself or herself and his or her spouse, if any. If the Stockholder is a
corporation, limited liability company or partnership, then all corporate,
limited liability company or partnership action on the part of the corporate,
limited liability company or partnership Shareholder necessary for the
authorization, execution, delivery and performance of this Agreement and the
Stock Exchange Agreement - 2
transactions contemplated hereby has been taken or will be taken prior to the
Closing. All action on the part of the Stockholder necessary for the
authorization, execution, delivery and performance of this Agreement by the
Stockholder has been taken or will be taken prior to the Closing. This
Agreement constitutes a valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, and other laws of general application
relating to or affecting creditors' rights and to general equitable principles.
Section 3.4 Pending Claims. There is no claim, suit, action or
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proceeding, whether judicial, administrative or otherwise, pending or, to the
best of the Stockholder's knowledge, threatened that would preclude or restrict
the transfer to FCAI of the ANET Stock owned by the Stockholder or the
performance of this Agreement by the Stockholder.
Section 3.5 No Default. The execution, delivery and performance of this
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Agreement by the Stockholder does not and will not constitute a violation or
default under or conflict with any contract, agreement, understanding or
commitment to which such Stockholder is a party or by which such Stockholder is
bound.
Section 3.6 Acquisition of Stock for Investment. The Stockholder
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understands that the issuance of FCAI Stock will not have been registered under
the Securities Act of 1933, as amended (the "Act"), or any national or state
securities acts, and, accordingly, are restricted securities, and that he/she
represents and warrants to FCAI that his/her present intention is to receive and
hold the FCAI Stock for investment only and not with a view to the distribution
or resale thereof
Additionally, the Stockholder understands that any sale by the Stockholder
of any of the FCAI Stock received under this Agreement will, under current law,
require either (a) the registration of the FCAL Stock under the Act and
applicable national or state securities acts; (b) compliance with Rule 144 of
the Act; or (c) the availability of an exemption from the registration
requirements of the Act and applicable national or state securities acts. The
Stockholder understands that FCAI has not undertaken and does not presently
intend to file a Registration Statement to register the FCAI Stock to be issued
to the Stockholder. The Stockholder hereby agrees to execute, deliver, furnish
or otherwise provide to FCAI an opinion of counsel reasonably acceptable to FCAI
prior to any subsequent transfer of the FCAI Stock, that such transfer will not
violate the registration requirements of the federal or national or state
securities acts. The Stockholder further agrees to execute, deliver, furnish or
otherwise provide to FCAI any documents or instruments as may be reasonably
necessary or desirable in order to evidence and record the FCAI Stock acquired
hereby.
To assist in implementing the above provisions, the Stockholder hereby
consents to the placement of the legend, or a substantially similar legend, set
forth below, on all certificates representing ownership of the FCAI Stock
acquired hereby until the FCAI Stock has been sold, transferred, or otherwise
Stock Exchange Agreement -3
disposed of, pursuant to the requirements hereof The legend shall read
substantially as follows:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES ACTS. THESE SECURITIES
MUST BE ACQUIRED FOR INVESTMENT, ARE RESTRICThD AS TO TRANSFERABILITY, AND
MAY NOT BE SOLD, HYPOTHECATED, OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE
WITH THE REGISTRATION AND QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL
AND STATE SECURITIES LAWS OR APPLICABLE EXEMPTIONS THEREFROM."
Section 3.7 Stockholders Access to Information. The Stockholder hereby
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confirms and represents that he/she: (a) has been afforded the opportunity to
ask questions of and receive answers from representatives of FCAI concerning the
business and financial condition, properties, operations and prospects of FCAI
and has asked such questions as he/she desires to ask and all such questions
have been answered to the full satisfaction of the Stockholder; (b) has such
knowledge and experience in financial and business matters so as to be capable
of evaluating the relative merits and risks of the transactions contemplated
hereby; (c) has had an opportunity to engage and is represented by an attorney
of his/her choice; (d) has had an opportunity to negotiate the terms and
conditions of this Agreement; (e) has been given adequate time to evaluate the
merits and risks of the transactions contemplated hereby; and (t) has been
provided with and given an opportunity to review all current information
about FCAI.
Section 3.8 Disclosure. To the best of the Stockholder's knowledge, no
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representation or warranty of the Stockholder contained in this Agreement
(including the exhibits and schedules hereto) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
Section 3.9 Indemnification by Stockholder. The Stockholder recognizes
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that the Exchange being conducted with FCAI is based, to a material degree,
upon the representations and warranties of Stockholder as set forth and
contained herein and the Stockholder hereby agrees to indemnify and hold
harmless FCAI against all damages, costs, or expenses (including reasonable
attorney's fees) arising as a result of any breach of representation or warranty
or omission made herein by the Stockholder.
If any action is brought against FCAI in respect of which indemnity may be
sought against the Stockholder pursuant to the foregoing paragraph, FCAI shall
promptly notify the Stockholder in writing of the institution of such action
(but the omission to so notify the Stockholder shall not relieve it from any
liability that it may have to FCAI except to the extent the Stockholder is
materially prejudiced or otherwise forfeit substantive rights or defenses by
reason of such failure), and the Stockholder shall assume the defense of such
Stock Exchange Agreement - 4
action, including the employment of counsel to be chosen by the Stockholder to
be reasonably satisfactory to FCAI, and payment of expenses. FCAI shall have
the right to employ the Stockholder's or their own counsel in any such case, but
the fees and expenses of such counsel shall be at FCAI expense, unless the
employment of such counsel shall have been authorized in writing by the
Stockholder in connection with the defense of such action, or the Stockholder
shall not have employed counsel to take charge of the defense of such action, or
counsel employed by the stockholder shall not be diligently defending such
action, or FCAI shall have reasonably concluded that there may be defenses
available to it which are different from or additional to those available to
the Stockholder, or that representation of FCAI by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them (in which case the Stockholder
shall not have the right to direct the defense of such action on behalf of
FCAI), in any of which event such fees and expenses shall be borne by the
Stockholder. Anything in this paragraph to the contrary notwithstanding, the
Stockholder shall not be liable for any settlement of, or any expenses incurred
with respect to, any such claim or action effected without the Stockholder's
written consent, which consent shall not be unreasonably withheld. The
Stockholder shall not, without the prior written consent of FCAI effect any
settlement of any proceeding in respect of which FCAI is a party and indemnity
has been sought hereunder unless such settlement includes an unconditional
release of FCAI from all liability on claims that are the subject matter of such
proceeding.
Section 3.10 Organization and Capitalization. ANET is a corporation duly
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organized, validly existing and in good standing under the laws of the Republic
of Estonia, with full power and authority and all necessary governmental and
regulatory licenses, permits and authorizations to carry on the businesses in
which it is engaged, to own the properties that it owns currently and will own
at the Closing. ANET is qualified as a foreign corporation and is in good
standing in each jurisdiction in which the failure to qualify would have a
material adverse effect on the business, properties or condition (financial or
otherwise) of ANET. ANET does not have any subsidiaries or any other investments
or ownership interest in any corporation, partnership, joint venture or other
business enterprise, except as set forth in Schedule 3.10. The authorized
capital stock of ANET consists of 2,400 shares of common stock, 1,000 EEK par
value per share, of which 2,400 shares are validly issued and outstanding.
All of such issued and outstanding shares of ANET Stock have been duly
authorized and validly issued and are fully paid and non-assessable. None of
the shares were issued in violation of any preemptive rights. Except as set
forth in Schedule 3.10, there are no existing warrants, options, rights of
first refusal, conversion rights, calls, commitments or other agreements of any
character pursuant to which ANET is or may become obligated to issue any of its
stock or securities. ANET has no obligation to repurchase, reacquire or redeem
any of its outstanding capital stock.
Section 3.11 Subsidiaries. Schedule 3.11 sets forth a complete and
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accurate list of all Subsidiaries of ANET, showing (as to each such Subsidiary)
the date of its incorporation and the jurisdiction of its incorporation. All of
the outstanding capital stock of, or other ownership interests in, each
Subsidiary is owned by ANET, directly or indirectly, free and clear of any lien
or any other limitation or restriction (including restrictions on the right to
Stock Exchange Agreement - 5
vote). All outstanding shares of the capital stock of each Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable and are
free of any preemptive rights. There are no outstanding securities of any
Subsidiary convertible into or evidencing the right to purchase or subscribe for
any shares of capital stock of any Subsidiary, there are no outstanding or
authorized options, warrants, calls, subscriptions, rights, commitments or any
other agreements of any character obligating any Subsidiary to issue any shares
of its capital stock or any securities convertible into or evidencing the right
to purchase or subscribe for any shares of such stock, and there are no
agreements or understandings with respect to the voting, sale, transfer or
registration of any shares of capital stock of any Subsidiary.
Section 3.12 Financial Information. ANET has delivered to FCAI the
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audited balance sheet of ANET as of 01.01.1999-31.12.1999, together with the
related statements of income, changes in shareholder's equity and cash flow for
the years then ended, including the related notes, all certified by an
independent Estonian certified auditor. Such Financial Statements, including the
related notes, are in accordance with the books and records of ANET and fairly
present the financial position of ANET and the results of operations and changes
in financial position of ANET as of the dates and for the periods indicated, in
each case in conformity with generally accepted accounting principles applied on
a consistent basis. Except as, and to the extent reflected or reserved against
in the Financial Statements, ANET, as of the date of the Financial Statements,
has no material liability or obligation of any nature, whether absolute,
accrued, continued or otherwise, not fully reflected or reserved against in the
Financial Statements. As of the Closing Date, there will not have been any
adverse change in the financial condition or other operations, business,
properties or assets of ANET other than liabilities incurred in the ordinary
course of business in which, in the aggregate, are not in excess of $50,000 from
that reflected in the latest Financial Statements of ANET furnished to FCAI
pursuant hereto.
Section 3.13 Litigation. Except as disclosed in Schedule 3.13, there are
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no actions, suits or proceedings, formal or informal, pending or, to the best
knowledge of the Stockholder's, threatened against ANET, nor is ANET subject to
any order, judgment or decree, except in all cases, whether known or unknown,
for matters which, in the aggregate, would not result in a loss to ANET in
excess of $50,000.
Section 3.14 Taxes. Except as disclosed in Schedule 3.14, ANET has filed
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all tax returns and reports due or required to be filed, and has paid all taxes,
interest payments and penalties, if any, required to be paid with respect
thereto. ANET has made adequate provision for the payment of all taxes accruable
for all periods ending on or before the Closing Date to any taxing authority and
is not delinquent in the payment of any material tax or governmental charge of
any nature.
Section 3.15 Compliance with Laws. Except as set forth in Schedule 3.15,
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ANET is, and at all times prior to the date hereof has been, to the best of the
Stockholder's knowledge, in compliance with all statutes, orders, rules, and
regulations applicable to it or to the ownership of its assets or the
Stock Exchange Agreement - 6
operation of its business, except for failures to be in compliance that would
not have a material adverse effect on the business, properties, condition
(financial or otherwise) or prospects of ANET, and ANET has no basis to expect
to receive, and has not received, any order or notice of any such violation or
claim of violation of any such statute, order, rule, ordinance or regulation.
Section 3.16 Books and Records. The books of account, minute books, stock
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record books and other records of ANET, all of which have been made available to
FCAI, are accurate and complete in all material respects and have been
maintained in accordance with sound business practices.
Section 3.17 Title to Properties: Encumbrances. ANET has good title to
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all of its properties and assets, real and personal, tangible and intangible,
that are material to the condition (financial or otherwise), business,
operations or prospects of ANET, free and clear of all mortgages, claims, liens,
security interests, charges, leases, encumbrances and other restrictions of any
kind and nature, except (i) as specifically disclosed in Schedule 3.17, (ii) as
disclosed in the financial statements of ANET, (iii) statutory liens not yet
delinquent, and (iv) such liens consisting of zoning or planning restrictions,
imperfections of title, easements, pledges, charges and encumbrances, if any, as
do not materially detract from the value or materially interfere with the
present use of the property or assets subject thereto or affected thereby.
Section 3.18 Disclosure. To the best of the Stockholder's knowledge, no
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representation or warranty of the Stockholder contained in this Agreement
(including the exhibits, addendums and schedules hereto) contains any untrue
statement or omits to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
Section 3.19 Insurance. ANET and its Subsidiaries maintain adequate
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insurance with respect to their respective businesses and are in compliance with
all material requirements and provisions thereof.
Section 3.20 Material Agreements; Action. Except as set forth in Schedule
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3.20, there are no material contracts, agreements, commitments, understandings
or proposed transactions, whether written or oral, to which ANET or any of its
Subsidiaries is a party or by which it is bound that involve or relate to: (i)
any of their respective officers, directors, stockholders or partners or any
Affiliate thereof; (ii) the sale of any of the assets of ANET or any of its
Subsidiaries other than in the ordinary course of business; (iii) covenants of
ANET or any of its Subsidiaries not to compete in any line of business or with
any person in any geographical area or covenants of any other person not to
compete with ANET or any of its Subsidiaries in any line of business or in any
geographical area; (iv) the acquisition by ANET or any of its Subsidiaries of
any operating business or the capital stock of any other Person; (v) the
borrowing of money or (vi) the expenditure of more than $50,000 in the aggregate
or the performance by ANET or any Subsidiary extending for a period more than
Stock Exchange Agreement - 7
one year from the date hereof, other than in the ordinary course of business.
There have been made available to FCAI and its representatives true and complete
copies of all such agreements. All such agreements are in full force and effect.
Neither the Company nor any of its Subsidiaries is in default under any such
agreements nor is any other party to any such agreements in default thereunder
in any respect.
Section 3.21 Employee Benefit Plans. ANET is not a party to any employee
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benefit plan.
Section 3.22 No Pending Transactions. Except for the transactions
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contemplated by this Agreement, neither ANET nor any Subsidiary is a party to or
bound by or the subject of any agreement, undertaking, commitment or discussions
or negotiations with any person that could result in (i) the sale, merger,
consolidation or recapitalization of ANET or any Subsidiary, (ii) the sale of
all or substantially all of the assets of ANET or any Subsidiary, or (iii) a
change of control of more than five percent of the outstanding capital stock of
ANET or any Subsidiary.
Section 3.23 No Undisclosed Liabilities. To the best of the Stockholder's
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knowledge, neither ANET nor or any Subsidiary has any obligation or liability
(contingent or otherwise) that would be required to be reflected in the
financial statements of the Company in accordance with Estonian Accounting Law
except as reflected in ANET's Balance Sheet.
ARTICLE IV
LIMITATION OF LIABILITY OF CERTAIN PERSONS
Section 33N of the Texas Securities Act, which applies to this Offering,
limits the liability of certain persons in connection with actions or series of
actions under Section 33 of the Texas Securities Act. Specifically, Section 33N
limits the liability of an attorney, an accountant, a consultant, or the firm of
the attorney, accountant, or consultant (collectively, the "Person") to an
amount equal to three times the fee paid by the Company or other seller to the
Person for the services related to the offer of securities, unless a court finds
the Person engaged in intentional wrong doing in providing the services.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF FCAI
FCAI hereby represents and warrant to the Stockholders as follows:
Section 5.1 Organization and Capitalization. FCAI is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
Delaware, with full power and authority and all necessary governmental and
regulatory licenses, permits and authorizations to carry on the businesses in
which it is engaged, to own the properties that it owns currently and will own
at the Closing, and to perform its obligations under this Agreement. FCAI is
qualified as a foreign corporation and is in good standing in each jurisdiction
in which the failure to qualify would have a material adverse effect on the
Stock Exchange Agreement-8
business, properties or condition (financial or otherwise) of FCAI. FCAI does
not have any subsidiaries or any other investments or ownership interest in any
corporation, partnership, joint venture or other business enterprise, except as
set forth in Schedule 5.1. Immediately prior to the Closing Date the authorized
capital stock of FCAI consists of (i) 100,000,000 shares of common stock,
$0.001 par value of which 71,131,142 shares are validly issued and outstanding
at the date hereon. All of such issued and outstanding shares of FCAI Stock have
been and all of the shares of FCAI Stock to be issued hereby will be, at the
Closing, duly authorized and validly issued and are and will be at the Closing
fully paid and non-assessable. None of the shares that were issued and none of
the shares to be issued hereby will be in violation of any preemptive rights.
FCAI has no obligation to repurchase, reacquire or redeem any of its
outstanding capital stock. FCAI also has outstanding options to purchase up
to 5,710,000 shares of its common stock.
Section 5.2 Subsidiaries. Schedule 5.2 sets forth a complete and accurate
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list of all Subsidiaries of FCAI, showing (as to each such Subsidiary) the date
of its incorporation and the jurisdiction of its incorporation. All of the
outstanding capital stock of, or other ownership interests in, each Subsidiary
is owned by FCAI, directly or indirectly, free and clear of any lien or any
other limitation or limitation or restriction (including restrictions on the
right to vote). All outstanding shares of the capital stock of any Subsidiary
have been duly authorized and validly issued and are fully paid and
non-assessable and are free of any preemptive rights. There are no outstanding
securities of any Subsidiary convertible into or evidencing the right to
purchase or subscribe for any shares of capital stock of any Subsidiary, there
are no outstanding or authorized options, warrants, calls, subscriptions,
rights, commitments or any other agreements of any character obligating any
Subsidiary to issue any shares of its capital stock or any securities
convertible into or evidencing the right to purchase or subscribe for any shares
of such stock, and there are no agreements or understandings with respect to the
voting, sale, transfer or registration of any shares of capital stock of any
Subsidiary.
Section 5.3 Authorization. All corporate action on the part of FCAI
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necessary for the authorization, execution, delivery and performance of this
Agreement by FCAI has been taken or will be taken prior to the Closing. FCAI has
the requisite corporate power and authority to execute, deliver and perform this
Agreement. This Agreement has been duly executed and delivered by FCAI, and
constitutes a valid and binding obligation of FCAI, enforceable against FCAI in
accordance with its terms;. subject to bankruptcy, insolvency, reorganization,
and other laws of general application relating to or affecting creditors' rights
and to general equitable principles.
Section 5.4 Litigation. Except as set forth in Schedule 5.4, there are no
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claims, actions, suits or proceedings, formal or informal, pending or, to the
best knowledge of FCAI, threatened against FCAI, nor is FCAI subject to any
order, judgment or decree, except in either case for matters which, in the
aggregate, would not result in a loss to FCAI in excess of $100,000.
Stock Exchange Agreement - 9
Section 5.5 Taxes. FCAI has filed all federal, state or local tax returns
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and reports due or required to be filed and has paid all taxes, interest
payments and penalties, if any, required to be paid with respect thereto, and
has made adequate provision for the payment of all taxes accruable for all
periods ending on or before the Closing Date to any taxing authority and is not
delinquent in the payment of any material tax or governmental charge of any
nature.
Section 5.6 Financial Information. FCAI has delivered to the Stockholders
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the audited balance sheet of FCAI as of December 31, 1998 and 1997, together
with the related statements of income, changes in shareholder's equity and cash
flow for the years then ended, including the related notes, all certified by
Ham, Langston & Brezina L.L.P., certified public accountants (the "Financial
Statements"). Such Financial Statements, including the related notes, are in
accordance with the books and records of FCAI and fairly present the financial
position of FCAI and the results of operations and changes in financial position
of FCAI as of the dates and for the periods indicated, in each case in
conformity with generally accepted accounting principles applied on a consistent
basis. Except as, and to the extent reflected or reserved against in the
Financial Statements, FCAI as of the date of the financial statements has no
material liability or obligation of any nature, whether absolute, accrued,
continued or otherwise, not fully reflected or reserved against in the Financial
Statements. As of the Closing Date, there will not have been any adverse change
in the financial condition or other operations, business, properties or assets
of FCAI in excess of $100,000 from that reflected in the latest financial
statements of FCAI furnished to the Stockholders pursuant hereto.
Section 5.7 Compliance with Laws. Except as set forth in Schedule 5.7,
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FCAI is, and at all times prior to the date hereof has been, to the best of its
knowledge, in compliance with all statutes, orders, rules, ordinances and
regulations applicable to it or to the ownership of its assets or the operation
of its businesses, except for failures to be in compliance that would not have a
material adverse effect on the business, properties, condition (financial or
otherwise) or prospects of FCAI and FCAI has no basis to expect, nor has
received, any order or notice of any such violation or claim of violation of any
such statute, order, rule, ordinance or regulation.
Section 5.8 Title to Properties; Encumbrances. FCAI has good and
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marketable title to all of its properties and assets, real and personal,
tangible and intangible, that are material to the condition (financial or
otherwise), business, operations or prospects of FCAI, free and clear of all
mortgages, claims, liens, security interests, charges, leases, encumbrances and
other restrictions of any kind and nature, except (i) as specifically disclosed
in Schedule 5.8, (ii) as disclosed in the Financial Statements of FCAI, (iii)
statutory liens not yet delinquent, and (iv) such liens consisting of zoning or
planning restrictions, imperfections of title, easements, pledges, charges and
encumbrances, if any, as do not materially detract from the value or materially
interfere with the present use of the property or assets subject thereto or
affected thereby.
Section 5.9 Disclosure. To the best of FCAI knowledge, no representation
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or warranty of FCAI contained in this Agreement (including the exhibits,
addendums and schedules hereto) contains any untrue statement of a material
Stock Exchange Agreement - 10
fact or omits to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they
were made, not misleading.
Section 5.10 No Default. The execution, delivery and performance of this
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Agreement by FCAI does not and will not constitute a violation or default under
or conflict with any contract, agreement, understanding or commitment to which
it is a party or by which it is bound or the Certificate of Incorporation or
By-Laws of FCAI or any statute, regulation, law, ordinance, judgment, decree,
writ, injunction, order or ruling of any government entity.
Section 5.11 Pending Claims. There is no claim, suit, action or
----------------
proceeding, whether judicial, administrative or otherwise, pending or, to the
best of FCAI's knowledge, threatened that would preclude or restrict the
transfer to the Stockholders of the FCAI Stock or the performance of this
Agreement by FCAI.
Section 5.12 Insurance. FCAI and its Subsidiaries maintain adequate
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insurance with respect to their respective businesses and are in compliance with
all material requirements and provisions thereof
Section 5.13 Employee Benefit Plans. FCAI is not a party to any employee
-----------------------
benefit plan.
Section 5.14 No Pending Transactions. Except as set forth in Schedule
---------------------------
5.14 and for the transactions contemplated by this Agreement, neither FCAI nor
any Subsidiary is a party to or bound by or the subject of any agreement,
undertaking, commitment or discussions or negotiations with any person that
could result in (1) the sale, merger, consolidation or recapitalization of FCAI
or any Subsidiary, (ii) the sale of all or substantially all of the assets of
FCAI or any Subsidiary, or (iii) a change of control of more than five percent
of the outstanding capital stock of FCAI or any Subsidiary.
Section 5.15 No Undisclosed Liabilities. To the best of its knowledge,
-----------------------------
neither FCAI nor or any Subsidiary has any obligation or liability (contingent
or otherwise) that would be required to be reflected in the financial statements
of the Company in accordance with GAAP except as reflected in FCAI Balance
Sheet.
Section 5.16 Indemnification by FCAI. FCAI recognizes that the Exchange
--------------------------
being conducted with the Stockholders is based, to a material degree, upon the
representations and warranties of FCAI as set forth and contained herein and
FCAI hereby agrees to indemnify and hold harmless the Stockholders against all
damages, costs, or expenses (including reasonable attorney's fees) arising as a
result of any breach of representation or warranty or omission made herein by
FCAI.
Stock Exchange Agreement-- 11
If any action is brought against FCAI, the Stockholders (collectively the
"Indemnified Parties") in respect of which indemnity may be sought against FCAI
pursuant to the foregoing paragraph, the Indemnified Parties shall promptly
notify FCAI in writing of the institution of such action (but the omission to so
notify FCAI shall not relieve it from any liability that it may have to such
Indemnified Parties except to the extent FCAI is materially prejudiced or
otherwise forfeits substantive rights or defenses by reason of such failure),
and FCAI shall assume the defense of such action, including the employment of
counsel to be chosen by FCAI to be reasonably satisfactory to the Indemnified
Parties, and payment of expenses. The Indemnified Parties shall have the right
to employ FCAI or their own counsel in any such case, but the fees and expenses
of such counsel shall be at the Indemnified Party's expense, unless the
employment of such counsel shall have been authorized in writing by FCAI in
connection with the defense of such action, or FCAI shall not have employed
counsel to take charge of the defense of such action, or counsel employed by
FCAI shall not be diligently defending such action, or the Indemnified Parties
shall have reasonably concluded that there may be defenses available to it which
are different from or additional to those available to FCAI, or that
representation of such Indenmified Party and FCAI by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them (in which case FCAI shall not have
the right to direct the defense of such action on behalf of the Indemnified
Parties), in any of which event such fees and expenses shall been borne by FCAI.
Anything in this paragraph to the contrary notwithstanding, FCAI shall not be
liable for any settlement of, or any expenses incurred with respect to, any such
claim or action effected without FCAI written consent, which consent shall not
be unreasonably withheld. FCAI shall not, without the prior written consent of
the Indemnified Parties effect any settlement of any proceeding in respect of
which any Indemnified Parties is a party and indemnity has been sought hereunder
unless such settlement includes an unconditional release of such Indemnified
Parties from all liability on claims that are the subject matter of such
proceeding.
ARTICLE VI
CLOSING; DELIVERY
Section 6.1(a) Closing Documents of the Stockholders. The obligations of
--------------------------------------
FCAI to effect the transactions contemplated hereby are subject to the delivery
by the Stockholders at Closing of each of the following documents:
(i) The Stockholders shall have delivered certificates evidencing their
ANET Common Stock duly endorsed for transfer by the Stockholders to
FCAI as contemplated by this Agreement, in form and substance
satisfactory to counsel for FCAI.
Section 6.1(b) Closing Documents of FCAI. The obligations of the
-----------------------------
Stockholders to effect the transactions contemplated hereby are subject to each
of the following conditions:
Stock Exchange Agreement - 12
(i) FCAI shall have delivered either (i) certificates evidencing FCAI
Common Stock, duly executed for issuance by FCAI to the Stockholders
as contemplated by this Agreement or (ii) letter of instructions
from a duly authorized officer of FCAI to OTC Stock Transfer, Inc.
(FCAI's transfer agent), instructing the transfer agent to duly
issue stock certificates evidencing the shares of Common Stock of
FCAI to the Stockholders, all as contemplated by this Agreement,
in form and substance satisfactory to counsel for the Stockholders.
Section 6.1 (c) Conditions to the Obligations of FCAI and the
----------------------------------------------------
Stockholders. The obligations of FCAI and the Stockholders to effect the
- ------------
transactions contemplated hereby are further subject to the following condition:
(i) The Board of Directors of FCAI shall have approved and authorized
the transactions contemplated herein.
(ii) No action, suit or proceeding by or before any court or any
governmental or regulatory authority shall have been commenced or
threatened, and no investigation by any governmental or regulatory
authority shall have been commenced or threatened, seeking to
restrain, prevent or challenge the transactions contemplated hereby
or seeking judgments against FCAI or the Stockholders.
ARTICLE VII
COVENANTS OF ANET AND ThE STOCKHOLDERS
Conduct of Business. From the date hereof until the earlier of the Closing
---------------------
Date or termination of this Agreement pursuant to Article IX, ANET shall conduct
its business only in the ordinary course consistent with past practice and shall
not sell, lease, pledge, dispose of, grant a license in or otherwise transfer or
encumber any of its assets or properties other than in the usual and ordinary
course of its business or with the prior written consent of FCAI.
ARTICLE VIII
ADDITIONAL AGREEMENTS
Access to Information
-----------------------
8.1 ANET shall, and shall cause its officers, directors, employees and
agents to, afford FCAI complete access at all reasonable times from the date
hereof to the Closing Date, to the officers, employees, agents, properties,
books, records and contracts of ANET, and shall furnish to FCAI all financial,
operating and other data and information as FCAI may reasonably request.
Stock Exchange Agreement - 13
8.2 No investigation pursuant to this Section 8.1 shall affect any
representations or warranties of the parties contained herein.
ARTICLE IX
TERMINATION
This Agreement and the transactions contemplated hereby may be terminated
by FCAI at any time prior to Closing.
ARTICLE X
[DELETED]
ARTICLE XI
MISCELLANEOUS
Section 11.1 Notices. All notices and other communications provided for
--------
herein shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, or overnight air courier guaranteeing next day
delivery:
(a) If to FCAI:
Mr. Alex Genin, President
First Capital International, Inc.
5120 Woodway, Suite 9004
Houston, Texas 77056
Fax (713) 629-4913
With a copy to:
Robert D. Axelrod
Axelrod, Smith & Kirshbaum
5300 Memorial Drive, Suite 700
Houston, Texas 77007
Fax: (713) 552-0202
(b) If to the Stockholders, to:
The addresses listed on Exhibit A, attached hereto.
Stock Exchange Agreement - 14
All notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; three days after being
deposited in the mail, postage prepaid, sent certified mail, return receipt
requested, if mailed; and the next day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
Section 11.2 Assignment. Neither this Agreement nor any of the rights,
-----------
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, which consent will not
be unreasonably withheld. This Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective heirs,
personal representatives, successors and assigns.
Section 11.3 Counterparts. This Agreement can be executed in any number
-------------
of counterparts, which taken together shall constitute one and the same
instrument and each of which shall be considered an original for all purposes.
Section 11.4 Section Headings. The section headings contained in this
------------------
Agreement are for convenient reference only and shall not in any way affect the
meaning or interpretation of this Agreement.
Section 11.5 Entire Agreement. This Agreement, the documents to be
-------------------
executed hereunder and the exhibits, addendums and schedules attached hereto
constitute the entire agreement among the parties hereto pertaining to the
subject matter hereof and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties pertaining
to the subject matter hereof, and there are no warranties, representations or
other agreements among the parties in connection with the subject matter hereof
except as specifically set forth herein or in documents delivered pursuant
hereto. No supplement, amendment, alteration, modification, waiver or
termination of this Agreement shall be binding unless executed in writing by the
parties hereto. All of the exhibits, addendums and schedules referred to in this
Agreement are hereby incorporated into this Agreement by reference and
constitute a part of this Agreement.
Section 11.6 Validity. The invalidity or unenforceability of any
---------
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect.
Section 11.7 Survival. The respective representations, warranties,
---------
covenants and agreements set forth in this Agreement shall survive the Closing
for a period of one year from the execution hereof
Stock Exchange Agreement - 15
Section 11.8 Public Announcements. The parties hereto agree that prior to
---------------------
making any public announcement or statement with respect to the transactions
contemplated by this Agreement, the party desiring to make such public
announcement or statement shall consult with the other parties hereto and
exercise their best efforts to (i) agree upon the text of a joint public
announcement or statement to be made by all of such parties or (ii) obtain
approval of the other parties hereto to the text of a public announcement or
statement to be made solely by the party desiring to make such public
announcement; provided, however, that if any party hereto is required by law to
make such public announcement or statement, then such announcement or statement
may be made without the approval of the other parties.
Section 11.9 Gender. All personal pronouns used in this Agreement shall
-------
include the other genders, whether used in the masculine, feminine or neuter
gender, and the singular shall include the plural, and vice versa, whenever
appropriate.
Section 11.10 Choice of Law. This Agreement shall be governed by, and
----------------
construed in accordance with, the laws of the State of Texas, U.S.A. without
regard to principles of conflict of laws.
Section 11.11 Costs and Expenses. FCAI and the Stockholders shall each
---------------------
pay their own respective fees and disbursements incurred in connection with this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed effective as of the day and year first above written.
FIRST CAPITAL INTERNATIONAL, INC.
By: /s/ Alex Genin
----------------------------------
Alex Genin, President
STOCKHOLDERS
/s/ Mihhail Didyk
-------------------------------------
Mr. Mihhail Didyk
FOR THE PURPOSE OF ARTICLES VII AND VIII:
ANET
By: /s/ Mr. Mihhail Didyk
--------------------------------
Mr. Mihhail Didyk
Stock Exchange Agreement - 16
EXHIBIT A
---------
Shares of ANET to be Shares of FCAI to be
Delivered to FCAI Received from FCAI
Stockholder at Closing at Closing
- --------------------------------------------------------------------------------
Mihhail Didyk -2200- -229125-
- --------------------------------------------------------------------------------
Address of the Stockholder:
Mihhail Didyk, Paldiski mnt. 227 - 805, 13520 Tallinn, Republic of Estonia.
ADDENDUM
--------
- - FCAl will cause the following amount of shares to be issued to MIHHAIL DIDYK:
Two Hundred and Twenty Nine Thousand One Hundred and Twenty Five (229125)
Common Restricted (Rule 144) Shares of stock of FCAI, to be issued upon the
completion of the formal acquisition of ANET by FOAl.
- - Additionally, FCAI will pay to MIHHAIL DIDYK, in cash, as follows:
Twenty Five Thousand Dollars ($25,000.00 USD), within Ten (10) calendar
days of the formal acquisition of ANET by FCAI;
Twenty Five Thousand Dollars ($25,000.00 USD), within Ninety (90) calendar
days of the formal acquisition of ANET by FCAI.
ADDITIONAL CONDITIONS:
- -----------------------
FCAl does hereby agree to invest up to Seventy-Five Thousand dollars into ANET's
current operations after the acquisition within 12-month period and subject to
FCAI's Board of Directors Approval and approved investment schedule.
Additionally FCAI will agree to guarantee to the current Management of ANET,
Employment Contracts and further guarantee that ANET's representative will be
involved in the Internet related corporate activities in the CIS and Baltic
Regions and that FCAI will agree to recognize all current, key employees of ANET
and their respective contractual rights as an integral part of the proposed
Stock Exchange Agreement.
PRINCIPAL'S COMPENSATION:
- --------------------------
FCAl does hereby agree to pay to the ANET's Company Principle - Mr. Mihhail
Didyk, a monthly compensation of Two Thousand Dollars ($2,000.00 USD), during
the duration of his Management Contract and FCAI will pay this money directly to
Mr. Mihhail Didyk, into his designated account. Further, FCAl does also agree to
provide to Mr. Mihhail Didyk, all the Executive benefits as are reasonable and
customary in Estonia for an individual in this Executive position.
Additionally, Mr. Mihhail Didyk will be subject to an additional bonus plan in
accordance with the profitabilities of the FCAI's ISP related activities, as
well as, the FCAI's overall performance.