EXHIBIT 10.1
ARTICLE 1 DEFINITION .............................................................1
1.1 DEFINITIONS .....................................................................1
ARTICLE 2 SALE AND TRANSFER OF SHARES; CLOSING ...................................4
2.1 SHARES ..........................................................................4
2.2 PURCHASE PRICE ..................................................................4
2.3 CLOSING .........................................................................4
2.4 CLOSING DELIVERIES ..............................................................4
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER ...............................5
3.1 ORGANIZATION AND GOOD STANDING ..................................................5
3.2 ENFORCEABILITY; NO CONFLICT .....................................................5
3.3 CAPITALIZATION AND OWNERSHIP ....................................................5
3.4 FINANCIAL STATEMENTS ............................................................6
3.5 NO UNDISCLOSED LIABILITIES ......................................................6
3.6 CONTRACTS; NO DEFAULTS ..........................................................6
3.7 LEGAL PROCEEDINGS; ORDERS .......................................................6
3.8 SECURITIES LAW MATTERS ..........................................................7
3.9 BROKERS OR FINDERS ..............................................................7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER ................................7
4.1 ORGANIZATION ....................................................................7
4.2 ENFORCEABILITY; NO CONFLICT .....................................................7
4.3 BROKERS OR FINDERS ..............................................................8
ARTICLE 5 COVENANTS OF THE PARTIES BEFORE CLOSING.................................8
5.1 ACCESS AND INVESTIGATION ........................................................8
5.2 OPERATION OF THE BUSINESS OF THE COMPANY ........................................8
5.3 REQUIRED APPROVALS ..............................................................8
5.4 SHAREHOLDER APPROVAL ............................................................9
ARTICLE 6 CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.....................9
6.1 ACCURACY OF REPRESENTATIONS .....................................................9
6.2 SELLERS' AND COMPANY'S PERFORMANCE ..............................................9
6.3 STOCKHOLDER APPROVAL ............................................................9
ARTICLE 7 CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE ...................9
7.1 ACCURACY OF REPRESENTATIONS .....................................................9
i
7.2 BUYER'S PERFORMANCE ............................................................10
ARTICLE 8 TERMINATION ...........................................................10
8.1 TERMINATION EVENTS .............................................................10
8.2 EFFECT OF TERMINATION ..........................................................10
ARTICLE 9 INDEMNIFICATION; REMEDIES .............................................11
9.1 SURVIVAL .......................................................................11
ARTICLE 10 GENERAL PROVISIONS ....................................................11
10.1 EXPENSES........................................................................11
10.2 FURTHER ACTIONS ................................................................11
10.3 ENTIRE AGREEMENT AND MODIFICATION ..............................................11
10.4 SEVERABILITY ...................................................................11
10.5 GOVERNING LAW ..................................................................12
10.6 COUNTERPARTS ...................................................................12
ii
STOCK PURCHASE AGREEMENT .................................................................5
PRELIMINARY STATEMENT ...........................................................5
AGREEMENT .......................................................................5
ARTICLE 1 DEFINITIONS ....................................................................5
ARTICLE 2 SALE AND TRANSFER OF SHARES; CLOSING ...........................................8
2.1 SHARES .................................................................8
2.2 PURCHASE PRICE .........................................................8
2.3 CLOSING ................................................................8
2.4 CLOSING DELIVERIES .....................................................8
(a) Seller will deliver to Buyer: ......................................8
(b) Buyer will deliver: ................................................8
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER .......................................9
3.1 ORGANIZATION AND GOOD STANDING .........................................9
The Company is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of organization, with full corporate
power and authority to conduct its business as
presently conducted, to own or use the properties and
assets that it purports to own or use, and to perform
all its obligations under all its Company Contracts. ..........9
3.2 ENFORCEABILITY; NO CONFLICT ............................................9
(a) Seller and the Company have the absolute and
unrestricted right, power, authority and capacity to
execute and deliver this Agreement and to perform
their obligations under this Agreement. Assuming due
authorization, execution and delivery of this
Agreement by Buyer, this Agreement constitutes the
legal, valid and binding obligation of Seller and the
Company, enforceable against Seller and the Company
in accordance with its terms. .................................9
(b) Seller and the Company are not and will not be
required to give any notice to any Person or obtain
any Consent or Governmental Authorization in
connection with the execution and delivery of this
Agreement or the consummation or performance of any
of the Contemplated Transactions. ............................9
1
(c) Neither the execution and delivery of this Agreement
nor the consummation or performance of any of the
Contemplated Transactions will directly or indirectly
(with or without notice or lapse of time) (i)
Contravene any provision of the Governing Documents
of the Company, (ii) Contravene any Company Contract,
Governmental Authorization, Law or Order to which
Company or Seller, or any of the assets owned or used
by the Company, may be subject, or (iii) result in
the imposition or creation of any Encumbrance upon or
with respect to any of the assets owned or used by
the Company. .................................................9
3.3 CAPITALIZATION AND OWNERSHIP ...........................................9
3.4 FINANCIAL STATEMENTS ..................................................10
3.5 NO UNDISCLOSED LIABILITIES ............................................10
3.6 CONTRACTS; NO DEFAULTS ................................................10
(a) Section 3.6 of Seller's Disclosure Schedule contains
an accurate and complete list of: ...........................10
3.7 LEGAL PROCEEDINGS; ORDERS ............................................10
(a) There exists no pending Proceedings (i) by or against
the Company or that otherwise relate to or may affect
the business of, or any of the assets owned or used
by, the Company or (ii) that challenge, or that may
have the effect of preventing, delaying, making
illegal or otherwise interfering with, any of the
Contemplated Transactions. To Seller's Knowledge, no
other such Proceeding has been threatened, and no
event has occurred or circumstance exists that may
give rise to or serve as a basis for the commencement
of any such Proceeding. .....................................10
(b) There exists no pending Order to which the Company,
or any of the assets owned or used by the Company, is
or has been subject. ........................................10
3.8 SECURITIES LAW MATTERS ................................................11
3.9 BROKERS OR FINDERS ....................................................11
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYER .......................................11
4.1 ORGANIZATION ..........................................................11
4.2 ENFORCEABILITY; NO CONFLICT ...........................................11
2
(a) Buyer has the absolute and unrestricted right, power
and authority to execute and deliver this Agreement
and to perform its obligations under this Agreement,
which actions have been duly authorized and approved
by all necessary corporate action of Buyer. Assuming
the execution and delivery of this Agreement by
Seller, this Agreement constitutes the legal, valid
and binding obligation of Buyer, enforceable against
Buyer in accordance with its terms. .........................l1
(b) Buyer is not and will not be required to obtain any
Consent or Governmental Authorization in connection
with the execution and delivery of this Agreement or
the consummation or performance of any of the
Contemplated Transactions. .................................. 11
(c) Neither the execution and delivery of this Agreement
by Buyer nor the consummation or performance of any
of the Contemplated Transactions by Buyer will give
arty Person the right to prevent, delay or otherwise
interfere with any of the Contemplated Transactions
pursuant to (i) any provision of Buyer's Governing
Documents, (ii) any resolution adopted by the board
of directors or the stockholders of Buyer, (iii) any
Law, Order or Governmental Authorization to which
Buyer may be subject or (iv) any Contract to which
Buyer is a party or by which Buyer may be bound. ............11
4.3 BROKERS OR FINDERS ....................................................12
ARTICLE 5 COVENANTS OF THE PARTIES BEFORE CLOSING .......................................12
5.1 ACCESS AND INVESTIGATION ..............................................12
5.2 OPERATION OF THE BUSINESS OF THE COMPANY ..............................12
5.3 REQUIRPD APPROVALS ....................................................12
5.4 SHAREHOLDER APPROVAL .......................................................13
ARTICLE 6 CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE ...........................13
6.1 ACCURACY OF REPRESENTATIONS ...........................................13
All of Seller's representations and warranties in this
Agreement (considered both collectively and
individually) must have been accurate in all material
respects as of the date of this Agreement, and must
be accurate in all material respects as of the
Closing Date as if then made. ..............................13
6.2 SELLERS' AND COMPANY'S PERFORMANCE ...................................13
3
All of the covenants and obligations that Seller and
company is required to perform or to comply with
under this Agreement on or before the Closing Date
(considered both collectively and individually) must
have been duly performed and complied with in all
material respects. .........................................13
6.3 STOCKHOLDER APPROVAL .................................................13
ARTICLE 7 CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE .........................13
7.1 ACCURACY OF REPRESENTATIONS ..........................................14
7.2 BUYER'S PERFORMANCE ..................................................14
ARTICLE 8 TERMINATION ..................................................................14
8.1 TERMINATION EVENTS ...................................................14
(a) by mutual consent of Buyer and Seller; ......................14
(b) by Buyer if the satisfaction of any condition in
Article 6 is or becomes impossible (other than
through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not
waived such condition; ......................................14
(c) by Seller if the satisfaction of any condition in
Article 7 is or becomes impossible (other than
through the failure of Seller to comply with its
obligations under this Agreement) and Seller has not
waived such condition; and ..................................14
(d) by either Buyer or Seller if the Closing has not
occurred (other than through the failure of any party
seeking to terminate this Agreement to comply fully
with its obligations under this Agreement) on or
before August 31, 2005, or such later date as Buyer
and Seller may agree upon. .................................14
8.2 EFFECT OF TERMINATION ................................................14
ARTICLE 9 INDEMNIFICATION; REMEDIES ..................................................15
9.1 SURVIVAL .............................................................15
ARTICLE 10 GENERAL PROVISIONS ..........................................................15
10.1 EXPENSES .............................................................15
10.2 FURTHER ACTIONS ......................................................15
10.3 ENTIRE AGREEMENT AND MODIFICATION ....................................15
10.4 SEVERABILITY .........................................................15
10.5 GOVERNING LAW ........................................................16
10.6 COUNTERPARTS .........................................................16
4
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("AGREEMENT" is made as of July 20, 2005
by and between X-Change Corporation, a Nevada corporation ("Buyer"), and Michael
L. Sheriff" ("SELLER").
PRELIMINARY STATEMENT
Seller desires to sell, and Buyer desires to purchase, all of the
outstanding shares (the "SHARES") of AirGate Technologies, Inc. a corporation
organized under the; laws of Texas (the "COMPANY"), the terms and subject to the
conditions set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, the following terms and variations
on them have the meanings specified in this ARTICLE 1:
"BUYER" is defined in the first paragraph of this Agreement.
"BUYER SHARES" means 10,000,000 newly issued shares of Buyer common
stock, par value $.001 per share.
"CLOSING" means the consummation and completion of the purchase and,
sale of the Shares.
"CLOSING DATE" means the date on which the Closing actually takes
place.
"COMPANY" is defined in the Preliminary Statement.
"COMPANY CONTRACT" means any Contract (a) under which the Company has
or may acquire rights, (b) under which the Company is or may become subject to
Liability or (c) by which the Company or any of its assets is or may become
bound.
"CONSENT" means any approval, consent, ratification, waiver or; other
authorization.
"CONTEMPLATED TRANSACTIONS" means all of the transactions to be
carried. out in accordance with this Agreement, including the purchase and sale
of the Shares, the performance by the parties of their other obligations under
this Agreement.
5
"CONTRACT" means any contract, agreement, commitment, understanding,
lease, license, franchise, warranty, guaranty, mortgage, note, bond or other
instrument or consensual obligation (whether written or oral and whether express
or implied) that is legally binding.
"CONTRAVENE" -- an act or omission would "Contravene" something if, as
the context requires:
(a) the act or omission would conflict with it, violate it, result in a
bleach or violation of or failure to comply with it, or constitute a default
under it;
(b) the act or omission would give any Governmental Body or other.
Person the right to challenge, revoke, withdraw, suspend, cancel, terminate or
modify it, to exercise any remedy or obtain any relief under it, or to declare a
default or accelerate the maturity of any obligation under it; or
(c) the act or omission would result in the creation of an Encumbrance
on the stock or assets of the Company.
"ENCUMBRANCE" means any charge, claim, mortgage, servitude, easement,
right of way, community or other marital property interest, covenant, equitable
interest, license, lease or other possessory interest, lien, option, pledge,
security interest, preference, priority, right of first refusal or similar
restriction.
"FINANCIAL STATEMENTS" is defined in SECTION 3.4.
"GAAP" means generally accepted accounting principles for financial
reporting in the United States.
"GOVERNING DOCUMENT" means any charter, articles, bylaws, certificate,
statement, statutes or similar document adopted, filed or registered in,
connection with the creation, formation or organization of an entity, and any
Contract among all equityholders, partners or members of an entity.
"GOVERNMENTAL AUTHORIZATION" means any Consent, license, permit or
registration issued, granted, given or otherwise made available by or under the
authority of any Governmental Body or pursuant to any Law.
"GOVERNMENTAL BODY" means any (a) nation, region, state, county, city;
town, village, district or other jurisdiction, (b) federal, state, local,
municipal, foreign or other government, (c) governmental or quasi-governmental
authority of any nature (including any governmental agency, branch, department
or other entity and any court or other tribunal), (d) multinational
organization, (e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory or taxing authority or
power of any nature, or (f) official of any of the foregoing.
6
"KNOWLEDGE" means, with respect to Seller, the actual knowledge after
reasonable investigation of Seller or of the Company's directors, officers or
senior managerial employees.
"LAW" means any constitution, law, statute, treaty, rule, regulation,
ordinance, code, binding case law, principle of common law or notice of any
Governmental Body.
"LIABILITIES" includes liabilities or obligations of any nature,
whether known or unknown, whether absolute, accrued, contingent, choate,
inchoate or otherwise, whether duo or to become due, and whether or not required
to be reflected on a financial statement prepared in accordance with GAAP.
"ORDER" means any order, injunction, judgment, decree, ruling,
assessment or arbitration award of any Governmental Body or arbitrator and any
Contract with any Governmental Body pertaining to compliance with Law.
"ORDINARY COURSE OF BUSINESS" refers to actions taken in the Company's
normal operation, consistent with its past practice and having no material
adverse effect on the financial or other condition, results of operations,
assets, Liabilities, equity, business or prospects of the Company.
"PERSON" refers to an individual or an entity, including a corporation,
share company, limited liability company, partnership, trust, association,
Governmental Body or any other body with legal personality separate from its
equityholders or members.
"PROCEEDING" means any action, arbitration, audit, examination,
investigation, hearing, litigation or suit (whether civil, criminal,
administrative, judicial or investigative, whether formal or informal, and
whether public or private) commenced, brought, conducted or heard by or before,
or otherwise involving, any Governmental Body or arbitrator.
"PURCHASE PRICE" is defined in SECTION 2.2.
"SECURITIES ACT" means the Securities Act of 1933.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934.
"SELLER RELEASE" is defined in SECTION 2.4(a)(ii).
"SELLER" is defined in the first paragraph of this Agreement.
"SELLER'S DISCLOSURE SCHEDULE" means the disclosure schedule delivered
pursuant to ARTICLE 3 by Seller to Buyer concurrently with the execution of the
Agreement.
"SHARES" is defined in the Preliminary Statement.
7
ARTICLE 2
SALE AND TRANSFER OF SHARES; CLOSING
2.1 SHARES
Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, Seller will sell and transfer the Shares to Buyer,
and Buyer will purchase and acquire the Shares from Seller.
2.2 PURCHASE PRICE
The purchase price for the Shares (the "PURCHASE PRICE") will be paid
by delivery of the Buyer Shared to Seller at the Closing.
2.3 CLOSING
The Closing will take place at the offices of Buyer, at 10:00 a.m.
(local time) on the date that is two business days following the satisfaction or
waiver of each of the conditions set forth in ARTICLE 5 and 6, unless Buyer and
Seller agree otherwise.
2.4 CLOSING DELIVERIES
At the Closing:
(a) Seller will deliver to Buyer:
(i) certificates representing the Shares, duly endorsed in
blank (or accompanied by duly executed stock powers in blank);
(ii) a release in the form of Exhibit 2.4(a)(ii) executed by
Seller (the "SELLER RELEASE");
(iii) a certificate executed by Seller as to the accuracy of
Seller's representations and warranties as of the date of this Agreement and as
of the Closing in accordance with SECTION 6.1 and as to their compliance with
and performance of its covenants and obligations to be performed or complied on
or before the Closing Date in accordance with SECTION 6.2.
(b) Buyer will deliver:
(i) Stock certificates representing the Buyer Shares; and
(ii) a certificate executed by the President of Buyer as to
the accuracy of Buyer's representations and warranties as of the date of this
Agreement and as of the Closing in accordance with SECTION 7.1 and as to its
compliance with and performance of its covenants and obligations to be performed
or complied with on or before the Closing Date in accordance with SECTION 7.2.
8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that:
3.1 ORGANIZATION AND GOOD STANDING
The Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, with full
corporate power and authority to conduct its business as presently conducted, to
own or use the properties and assets that it purports to own or use, and to
perform all its obligations under all its Company Contracts.
3.2 ENFORCEABILITY, NO CONFLICT
(a) Seller and the Company have the absolute and unrestricted right
power, authority and capacity to execute and deliver this Agreement and to
perform their obligations under this Agreement. Assuming due authorization,
execution and delivery of this Agreement by Buyer, this Agreement constitutes
the legal, valid and binding obligation of Seller and the Company, enforceable
against Seller and the Company in accordance with its terms.
(b) Seller and the Company are not and will not be required to give any
notice to any person or obtain any Consent or Governmental Authorization in
connection with the execution and delivery of this Agreement or the consummation
or performance of any of the Contemplated Transactions.
(c) Neither the execution and delivery of this Agreement nor the
consummation or performance of any of the Contemplated Transactions will
directly or indirectly (with or without notice or lapse of time) (i) Contravene
any provision of the Governing Documents of the Company, (ii) Contravene any
Company Contract, Governmental Authorization, Law or Order to which Company or
Seller, or any of the assets owned or used by the Company, may be subject, or
(iii) result in the imposition or creation of any Encumbrance upon or with
respect to any of the assets owned or used by the Company.
3.3 CAPITALIZATION AND OWNERSHIP
The authorized equity securities of the Company consist of 25,000,000
shares of common stock, par value $.0001 per share, of which 11,500,100 shares
are issued and outstanding. The Shares represent all of the issued and
outstanding shares in the Company. Seller is and will be on the Closing Date the
record holders and beneficial owners of the Shares, free and clear of all
Encumbrances. All of the outstanding equity securities of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. There
are no Contracts relating to the issuance, sale or transfer of any equity
securities or other securities of the Company.
9
3.4 FINANCIAL STATEMENTS
Seller has furnished to Buyer financial statements as of December 31,
2004, and June 30, 2005 (collectively, the "FINANCIAL STATEMENTS") which is in
the form of a listing of assets and liabilities. The Financial Statements were
prepared in accordance with the books and records of the Company. The Financial
Statements and notes thereto are complete and fairly present the assets,
liabilities and financial condition of the Company as of the date thereof.
3.5 NO UNDISCLOSED LIABILITIES
The Company has no Liabilities except for Liabilities reflected or
reserved against in the Financial Statements, and current Liabilities incurred
in the Ordinary Course of Business since the respective dates thereof.
3.6 CONTRACTS, NO DEFAULTS
(a) SECTION 3.6 of Seller's Disclosure Schedule contains an accurate
and complete list of:
(i) each Company Contract that involves performance of
services or delivery of goods or materials by the Company of an amount or value
in excess of $10,000;
(ii) each Company Contract that involves performance of
services for or delivery of goods or materials to the Company of an amount or
value in excess of $10,000; and
(iii) each Company Contract that was not entered into in the
Ordinary Course of Business and that involves the expenditure or receipt by the
Company of an amount or value in excess of $10,000.
3.7 LEGAL PROCEEDINGS; ORDERS
(a) There exists no pending Proceedings (i) by or against the Company
or that otherwise relate to or may affect the business of, or any of the assets
owned or used by, the Company or (ii) that challenge, or that may have the
effect of preventing, delaying, making illegal or otherwise interfering with,
any of the Contemplated Transactions. To Seller's Knowledge, no other such
Proceeding has been threatened, and no event has occurred or circumstance exists
that may give rise to or serve as a basis for the commencement of any such
Proceeding.
(b) There exists no pending Order to which the Company, or any of the
assets owned or used by the Company, is or has been subject.
10
3.8 SECURITIES LAW MATTERS
Seller is acquiring the Buyer Shares for his own account and not with a
view to distribution within the meaning of Section 2(11) of the Securities Act.
Seller confirms that Buyer has made available to Seller the opportunity to ask
questions of the officers and management employees of Buyer and to acquire such
additional information about the business and financial condition of Buyer as
Seller has requested, and all such information has been received. Seller
understands that Buyer Shares shall be considered "restricted securities" as
that term is defined in Rule 144 promulgated under the Securities Act and Buyer
is under no obligation to cause the registration of the Buyer Shares.
3.9 BROKERS OR FINDERS
Seller has not incurred any Liability for brokerage or finders' fees or
agents' commissions or other similar payment in connection with the Contemplated
Transactions.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that:
4.1 ORGANIZATION
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization.
4.2 ENFORCEABILITY; NO CONFLICT
(a) Buyer has the absolute and unrestricted right, power and authority
to execute and deliver this Agreement and to perform its obligations under this
Agreement, which actions have been duly authorized and approved by all necessary
corporate action of Buyer. Assuming the execution and delivery of this Agreement
by Seller, this Agreement constitutes the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms.
(b) Buyer is not and will not be required to obtain any Consent or
Governmental Authorization in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the Contemplated
Transactions.
(c) Neither the execution and delivery of this Agreement by Buyer for
the consummation or performance of any of the Contemplated Transactions by Buyer
will give any Person the right to prevent, delay or otherwise interfere with any
of the Contemplated Transactions pursuant to (i) any provision of Buyer's
Governing Documents, (ii) any resolution adopted by the board of directors or
the stockholders of Buyer, (iii) any Law, Order or Governmental Authorization to
which Buyer may be subject or (iv) any Contract to which Buyer is a party or by
which Buyer may be bound.
11
4.3 BROKER OR FINDERS
Buyer has not incurred any Liability for brokerage or finders' fees or
agents' commissions or other similar payment in connection with the Contemplated
Transactions.
ARTICLE 5
COVENANTS OF THE PARTIES BEFORE CLOSING
5.1 ACCESS AND INVESTIGATION
Between the date of this Agreement and the Closing Date and upon
reasonable advance notice from Buyer, Seller will, and will cause the Company
to, (a) afford Buyer full and free access to Company's personnel, properties,
Contracts, books and records, and other documents and data, (b) furnish such
Persons with copies of all such Contracts, books and records, and other
documents and data as Buyer may reasonably request, and (c) furnish such Persons
with such additional financial, operating and other data and information as
Buyer may reasonably request.
5.2 OPERATION OF THE BUSINESS OF THE COMPANY
Between the date of this Agreement and the Closing Date, Seller will,
and will cause the Company to, (a) conduct its business only in the Ordinary
Course of Business, (b) use their Best Efforts to preserve intact the current
business organization of the Company, keep available the services of the current
officers, employees and agents of the Company, and maintain relations and
goodwill with suppliers, customers, landlords, creditors, employees, agents and
others having business relationships with the Company, (c) confer with Buyer
concerning operational matters of a material nature and (d) otherwise report
periodically to Buyer concerning the status of the business, operations and
finances of the Company.
5.3 REQUIRED APPROVALS
As promptly as practicable after the date of this Agreement, Buyer and
Seller will, and Seller will cause the Company to, make all filings that they
are required by Law to make to consummate the Contemplated Transactions. Between
the date of this Agreement and the Closing Date, Buyer and Seller will, and
Seller will cause the Company to, (a) cooperate with the other Party with
respect to all filings that such Party elects to make or that such Party is
required by Law to make in connection with the Contemplated Transactions, and
(b) cooperate with Buyer in obtaining any Governmental Authorizations.
12
5.4 SHAREHOLDER APPROVAL
The Buyer shall take all actions in accordance with applicable law, its
Governing Documents and the Securities Exchange Act to promptly and duly call,
give notice of, convene and hold as promptly as practicable a meeting of the
Buyer's stockholders for the purpose of considering and voting upon the
Contemplated Transactions. This Buyer shall take all action that is both
reasonable and lawful to solicit from its stockholders proxies in favor of the
Contemplated Transactions and shall take all other action necessary or advisable
to seek to secure the vote or consent of the stockholders of the Company
required by the rules of the Securities Exchange Act or the Nevada General
Corporation Law to obtain such approvals.
ARTICLE 6
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Shares and to take the other actions
required to be taken by Buyer at the Closing is subject to the satisfaction, on
or before the Closing Date, of each of the following conditions (any of which
may be waived by Buyer, in whole or in part):
6.1 ACCURACY OF REPRESENTATIONS
All of Seller's representations and warranties in this Agreement
(considered both collectively and individually) must have been accurate in all
material respects of the date of this Agreement, and must be accurate in all
material respects as of the closing Date as if then made.
6.2 SELLERS' AND COMPANY'S PERFORMANCE
All of the covenants and obligations that Seller and Company is
required to perform or to comply with under this Agreement on or before the
Closing Date (considered both collectively and individually) must have been duly
performed and complied with in all material respects.
6.3 STOCKHOLDER APPROVAL
The Contemplated Transactions shall have been approved by the Buyer's
stockholders.
ARTICLE 7
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Shares and to take the other actions
required to be taken by Seller at the Closing is subject to the satisfaction, on
or before the Closing Date, of each of the following conditions (any of which
may be waived by Seller, in whole or in part):
13
7.1 ACCURACY OF REPRESENTATIONS
All of Buyer's representations and warranties in this Agreement
(considered both collectively and individually) must have been accurate in all
material respects as of the date of this Agreement and must be accurate in all
material respects as of the Closing Date as if then made.
7.2 BUYER'S PERFORMANCE
All of the covenants and obligations that Buyer is required to perform
or to comply with under this Agreement on or before the Closing Date (considered
both collectively and individually) must have been performed and complied with
in all material respects.
ARTICLE 8
TERMINATION
8.1 TERMINATION EVENTS
Subject to SECTION 8.2, this Agreement may, by notice given before or
at the Closing, be terminated:
(a) by mutual consent of Buyer and Seller;
(b) by Buyer if the satisfaction of any condition in ARTICLE 6 is or
becomes impossible (other than through the failure of Buyer to comply with its
obligation under this Agreement) and Buyer has not waived such condition;
(c) by Seller if the satisfaction of any condition in ARTICLE 7 is or
becomes impossible (other than through the failure of Seller to comply with its
obligations under this Agreement) and Seller has not waived such condition; and
(d) by either Buyer or Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before August 31,
2005, or such later date as Buyer and Seller may agree upon.
8.2 EFFECT OF TERMINATION
Each party's right of termination under SECTION 8.1 is in addition to
any other rights it may have under this Agreement or otherwise, and the exercise
of such right of termination will not be an election of remedies. If this
Agreement is terminated pursuant to SECTION 8.1, all obligations of the parties
under this Agreement will terminate; PROVIDED, HOWEVER, that if this Agreement
is terminated by a party because of the breach of the Agreement by another party
or because one or more of the conditions to the terminating party's obligations
under this Agreement is not satisfied as a result of any other party's failure
to comply with its obligations under this Agreement, the terminating party's
right to pursue all legal remedies will survive such termination unimpaired.
14
ARTICLE 9
INDEMNIFICATION; REMEDIES
9.1 SURVIVAL
All representations, warranties, covenants and obligations in this
Agreement, and any other certificate or document delivered pursuant to this
Agreement will survive the Closing and the consummation of the Contemplated
Transactions.
ARTICLE 10
GENERAL PROVISIONS
10.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to
this Agreement will bear its respective expenses incurred in connection with the
preparation, execution and performance of this Agreement and the Contemplated
Transactions, including all fees and expenses of its Representatives.
10.2 FURTHER ACTIONS
Upon, the request of any party to this Agreement, the other parties
will (a) furnish to the requesting party any additional information, (b) execute
and deliver, at their own expense, any other documents and (c) take any other
actions as the requesting party may reasonably require to more effectively carry
out the intent of this Agreement and the Contemplated Transactions.
10.3 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements among the parties with
respect to its subject matter a complete and exclusive statement of the terms of
the agreement between the parties with respect to its subject matter. This
Agreement may not be amended, supplemented or otherwise modified except in a
written document executed by the party against whose interest the modification
will operate.
10.4 SEVERABILITY
If a court of competent jurisdiction holds any provision of this
Agreement invalid or unenforceable, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
15
10.5 GOVERNING LAW
This Agreement will be governed by and construed under the laws of
Texas without regard to conflicts of laws principles that would require the
application of any other law.
10.6 COUNTERPARTS
This Agreement may be executed in two or more counterparts.
The parties have executed and delivered this Agreement as of the date
indicated in the first sentence of this Agreement.
X-CHANGE CORPORATION
By: /s/ Charles Stidham
----------------------
/s/ Michael L. Sheriff
--------------------------
MICHAEL L. SHERIFF, in his
individual capacity
16