Exhibit 2.2
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 28th day of May, 2004, by and between National
Business Holdings, Inc., a Florida corporation, (the "ISSUER") and the
individual listed in Exhibit A attached hereto, (the "SHAREHOLDER"), which
SHAREHOLDER owns all of the issued and outstanding shares of Shava, Inc, a
Nevada corporation ("SHAVA").
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to SHAREHOLDER, 3,100,000 shares of the
common stock of ISSUER, $.001 par value (the "Shares"), in exchange for 100% of
the issued and outstanding shares of SHAVA, such that SHAVA shall become a
wholly owned subsidiary of the ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDER and SHAVA the following:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Florida, and has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in Nevada. All actions taken by
the Incorporators, directors and SHAREHOLDER of ISSUER have been valid and in
accordance with the laws of the State of Florida.
ii. Capital. The authorized capital stock of ISSUER consists of
300,000,000 shares of common stock, $.001 par value, of which 384,831 are issued
and outstanding, and 25,000,000 shares of preferred stock, no par value, none of
which are issued and outstanding. All outstanding shares are fully paid and
nonassessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not a party to this Agreement. At closing, there will
be no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating ISSUER to issue or to
transfer from treasury any additional shares of its capital stock. Immediately
following the closing there will be 3,484,831 shares of common stock issued and
outstanding. None of the outstanding shares of ISSUER are subject to any stock
restriction agreements. All of the SHAREHOLDER of ISSUER have valid title to
such shares and acquired their shares in a lawful transaction and in accordance
with the laws of Florida.
iii. Financial Statements. Exhibit B to this Agreement (to be
subsequently attached and filed) includes the current balance sheet of ISSUER,
and the related statements of income and retained earnings for the period then
ended. The financial statements have been prepared in accordance with generally
accepted accounting principles consistently followed by ISSUER throughout the
periods indicated, and fairly present the financial position of ISSUER as of the
date of the balance sheet and the financial statements, and the results of its
operations for the periods indicated.
iv. Absence of Changes. Since the date of the financial statements,
there has not been any change in the financial condition or operations of
ISSUER, except changes in the ordinary course of business, which changes have
not in the aggregate been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected on the ISSUERS'
financial statement. ISSUER is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock. There is
no dispute of any kind between the ISSUER and any third party, and no such
dispute will exist at the closing of this Agreement. At closing, ISSUER will be
free from any and all liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right, power,
and authority to enter into and perform its obligations under this Agreement.
The execution and delivery of this Agreement by ISSUER and the performance by
ISSUER of its obligations hereunder will not cause, constitute, or conflict with
or result in (a) any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which ISSUER or its SHAREHOLDER are a party, or by which they may be bound,
nor will any consents or authorizations of any party other than those hereto be
required, (b) an event that would cause ISSUER to be liable to any party, or (c)
an event that would result in the creation or imposition or any lien, charge or
encumbrance on any asset of ISSUER or upon the securities of ISSUER to be
acquired by SHAREHOLDER.
vii. Full Disclosure. None of the representations and warranties
made by the ISSUER, or in any certificate or memorandum furnished or to be
furnished by the ISSUER, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not a party to any contract,
agreement or lease. No person holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
x. Litigation. ISSUER is not (and has not been) a party to any suit,
action, arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best knowledge of the ISSUER, there is no
basis for any such action or proceeding and no such action or proceeding is
threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct
its business in the normal course, and shall not (1) sell, pledge, or assign any
assets (2) amend its Articles of Incorporation or Bylaws, (3) declare dividends,
redeem or sell stock or other securities, (4) incur any liabilities, (5) acquire
or dispose of any assets, enter into any contract, guarantee obligations of any
third party, or (6) enter into any other transaction.
xii. Corporate Documents. Copies of each of the following documents,
which are true complete and correct in all material respects, will be attached
to and made a part of this Agreement:
(1) Articles of Incorporation;
(2) Bylaws;
(3) Minutes of SHAREHOLDER Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Current Balance Sheet together with other financial statements
described in Section 2(iii);
(7) Stock register and stock records of ISSUER and a current,
accurate list of ISSUER's shareholders.
xiii. Documents. All minutes, consents or other documents pertaining
to ISSUER to be delivered at closing shall be valid and in accordance with the
laws of Florida.
xiv. Title. The Shares to be issued to SHAREHOLDER will be, at
closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind. None of such Shares are or
will be subject to any voting trust or agreement. No person holds or has the
right to receive any proxy or similar instrument with respect to such shares,
except as provided in this Agreement, the ISSUER is not a party to any agreement
which offers or grants to any person the right to purchase or acquire any of the
securities to be issued to SHAREHOLDER. There is no applicable local, state or
federal law, rule, regulation, or decree which would, as a result of the
issuance of the Shares to SHAREHOLDER, impair, restrict or delay SHAREHOLDER'
voting rights with respect to the Shares.
3. SHAREHOLDER and SHAVA represent and warrant to ISSUER the following:
i. Organization SHAVA is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, has all necessary
corporate powers to own properties and carry on a business, and is duly
qualified to do business and is in good standing in Nevada. All actions taken by
the Incorporators, directors and SHAREHOLDER of SHAVA have been valid and in
accordance with the laws of Nevada.
ii. SHAREHOLDER and Issued Stock. Exhibit A annexed hereto sets
forth the names and share holdings of 100% of SHAVA's shareholders.
4. INVESTMENT INTENT. SHAREHOLDER agrees that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDER agrees, prior to any
Transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at a mutually
agreeable place and time.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance of a
certificate or certificates for 3,100,000 Shares, registered in the name of the
SHAREHOLDER based upon their holdings in SHAVA as agreed to on Exhibit A.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as
SHAREHOLDER designates as a director(s) of SHAVA.
(4) Audited financial statements of the ISSUER to be filed with the
SEC within sixty (60) days, which shall include a current balance sheet and
statements of operations, stockholders equity and cash flows for the twelve
month period then ended.
(5) All of the business and corporate records of ISSUER, including
but not limited to correspondence files, bank statements, checkbooks, savings
account books, minutes of shareholder and directors meetings, financial
statements, shareholder listings, stock transfer records, agreements and
contracts.
(6) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by SHAREHOLDER.
(7) An Opinion Letter from ISSUER's Attorney attesting to the
validity and condition of the ISSUER.
ii. By SHAREHOLDER AND SHAVA
(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding stock of SHAVA.
(2) Consents signed by all the SHAREHOLDER of SHAVA consenting to
the terms of this Agreement.
7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of, or relating
to, this Agreement, or the making, performance, or interpretation thereof, shall
be settled by arbitration in Palm Beach County, Florida in accordance with the
Rules of the American Arbitration Association then existing, and judgment on the
arbitration award may be entered in any court having jurisdiction over the
subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall in
no way be deemed to define, limit, or add to the meaning of any provision of
this Agreement.
ii. No oral change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged; and (I) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants, or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future of any such provisions, covenants,
or conditions, (ii) the acceptance of performance of anything required by this
Agreement to be performed with knowledge of the breach or failure of a covenant,
condition, or provision hereof shall not be deemed a waiver of such breach or
failure, and (iii) no waiver by any party of one breach by another party shall
be construed as a waiver with respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party to
whom notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: National Business Holdings, Inc.
The Hartke Building
7637 Leesburg Pike
Falls Church, VA 22043
ATTN: Wayne Hartke
SHAVA:
Shava, Inc.
4878 Ronson Court
San Diego, CA 92037
ATTN: Roger Pawson
IN WITNESS WHEREOF, the undersigned has executed this Agreement this
28th day of May 2004.
National Business Holdings, Inc.
By: /s/ Pieter Durand
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Pieter Durand
Shava, Inc.
By: /s/ Roger E. Pawson
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Roger E. Pawson