EXHIBIT 10.19
AGREEMENT AND PLAN OF EXCHANGE
AGREEMENT AND PLAN OF EXCHANGE dated this 7th day of March 2011 (this
"Agreement") by and among The X-Change Corporation ("X-Change"), a Nevada
corporation, having its principal place of business at 12655 North Central
Parkway Suite 1000, Dallas, Texas 75243, and Surrey Vacation Resorts, Inc.
("Surrey"), a Missouri corporation, having its principal place of business at
430 C Hwy 165_South, Branson, MO 65616 and the sole stockholder of Surrey listed
on Schedule A hereto (the "Surrey Stockholder") .
RECITALS:
1.1 "Subject To Contingencieso o to this Contract
Surrey Vacation Resorts, Inc. must receive approval in writing from the
Contract Receivable finance Companies that finance Surrey Vacation Resorts,
Inc.
1.1 X-CHANGE currently has authorized 37,500,000 shares of its common
stock, par value $.001, and 3,750,000 shares of preferred stock, par value
$.001. X-CHANGE currently has issued and outstanding Sixteen Million Six Hundred
Thirty Three Thousand Seven Hundred Ninety One (16,633,791) shares of its common
stock, par value $.001 per share ("Common Stock"), issued and outstanding, no
shares of preferred stock issued and outstanding and Two Million Seven Hundred
Seventy Nine Thousand Two Hundred Sixty Seven (2,779,267) warrants issued and
outstanding to purchase shares of X-CHANGE common stock, as more particularly
described on Schedule A (the "Common Stock Warrants"). The number of issued and
outstanding shares of common stock of X-CHANGE will, just prior to the closing
of this Agreement, be no more Six Million Eight Hundred Ninety Four Thousand Six
Hundred Eighty Five (6,894,685) shares of common stock, par value $.001 and no
shares of preferred stock will be issued and outstanding. The number of Common
Stock Warrants shall remain unchanged. X-CHANGE will amend its Articles of
Incorporation to increase the number of authorized stock to 750,000,000 shares
of common stock, par value $.001, and to 75,000,000 shares of preferred shares,
par value $.001.
2. Surrey currently has issued and outstanding 2,000 shares of its common
stock (the "Surrey Shares"). All of the issued and outstanding Surrey Shares are
owned beneficially and of record by the Surrey Stockholder. The Surrey Shares
shall be unchanged at closing.
3. The Board of Directors of X-CHANGE and the majority shareholders of
X-CHANGE have authorized the filing of, and X-CHANGE will file with the
Secretary of State of Nevada at Closing, an amendment to its Articles of
Incorporation for X-CHANGE, pursuant to which X-CHANGE's name will be changed
from The X-Change Corporation to GRAND CROWNE RESORTS, INC. (the "Name Change").
4. X-CHANGE desires to issue and deliver to the Surrey Stockholder a total
of Sixty Three Million Two Hundred Eighty Three Thousand Three Hundred Ninety
One shares (63,283,391) shares of its common stock (the "Surrey X-CHANGE
Shares") at Closing.
5. At the conclusion of the above referenced transactions, and prior to any
warrants being exercised, X-CHANGE shall have a total of approximately Seventy
Million One Hundred Seventy Eight Thousand Seventy Six (70,178,076) shares of
Common Stock issued and outstanding, consisting of (i) 63,283,391 shares owned
by the Surrey Stockholder, which will equal 90.175 percent of the outstanding
shares prior to any warrants being exercised, and (ii) approximately 6,894,685
shares owned by current shareholders of X-CHANGE, prior to any warrants being
exercised.
6. X-CHANGE, Surrey and the Surrey Stockholder shall cooperate with each
other in making all filings and furnishing all information as may be required to
conform to all applicable federal and state laws, rules and regulations
including, without limitation, their respective securities laws.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements contained in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
THE EXCHANGE TRANSACTION
Section 1.1 THE CLOSING OF THE EXCHANGE TRANSACTION. Subject to the
provisions of this Agreement, the Exchange Transaction will occur within five
(5) business days after the satisfaction or waiver of the last to be fulfilled
of the conditions set forth in this Article I and in Article IV that by their
terms are to occur prior to the closing of the Exchange Transaction, but in all
events not later than sixty (60) days from the execution and delivery of this
Agreement (the "Closing Date"), at the offices of Surrey, unless another time,
date or place is agreed to in writing by X-CHANGE and Surrey (the "Closing").
All parties hereto acknowledge and agree that under the rules and regulations of
the SEC as currently in effect, certain filings, including the filing of audited
financial statements of Surrey, must be filed with the SEC prior to or within
four days of the Closing of this Exchange Transaction. Any party to this
Agreement, including such party's representative, may participate in the Closing
by telephone.
Section 1.2 THE EVENTS AT THE CLOSING. At the Closing, all events shall be
deemed to occur simultaneously and no event shall be deemed completed until all
the events described below have been completed. All parties to this Agreement
acknowledge that certain numbers of shares and amounts may differ incrementally
from the numbers and amounts described below. Any numerical discrepancies will
be adjusted by the parties between the execution date of this Agreement and the
Closing; PROVIDED, HOWEVER, THAT all parties agree that at the conclusion of the
events described below at the Closing and subsequent to the Closing: (1) the
Surrey Stockholder shall own (i) 63,283,391 shares of X-CHANGE Common Stock; (2)
the current stockholders of X-CHANGE shall own approximately 6,894,685 shares of
X-CHANGE Common Stock, (3) there shall be issued and outstanding 2,779,267
warrants to purchase shares of X-CHANGE Common Stock except those that may be
exercised prior to closing if any are exercised then the current shareholders
number shall increase by the number that the warrants decrease and (4) X-CHANGE
shall own 100% of all of the issued and outstanding shares of common stock of
Surrey.
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(a) PRIOR TO THE CLOSING:
Each of the designated parties shall have performed the actions described below
prior to the Closing:
(i) X-CHANGE shall have furnished Surrey with a list of the names and
addresses of all stockholders, the number of shares owned by each and whether
said shares are restricted or free-trading, all certified by the X-CHANGE
transfer agent, Signature Stock Transfer.
(ii) X-CHANGE shall be in good standing in the State of Nevada.
(iii) X-CHANGE shall be current in its reporting obligations under the
Securities Exchange Act of 1934 as amended (the "Exchange Act") and the X-CHANGE
Common Stock shall be eligible for quoting on the Over the Counter Pink Sheets
("OTCQB").
(iv) X-CHANGE shall have satisfied the due diligence requests of Surrey.
(v) The current directors of X-CHANGE and the holders of a majority of the
issued and outstanding shares of common stock of X-CHANGE shall have approved
the transactions described in this Agreement and contemplated by the Exchange
Transaction, including the Name Change and the increase in the number of
authorized shares of common stock and preferred stock of X-CHANGE, in accordance
with the requirements of the Nevada Private Corporations Law ("NPCL").
(vi) X-CHANGE shall have effected the Name Change and received a new CUSIP
Number, received the approval of Financial Industry Regulatory Authority
("FINRA") to the Name Change, and, where required, other regulatory approvals,
and delivered documentation reasonably acceptable to Surrey demonstrating that
these events have occurred.
(vii) X-CHANGE shall have filed the Amended Articles of Incorporation of
X-CHANGE (in substantially the form annexed to X-CHANGE's Information Statement
on Schedule 14C filed with the SEC on February 24, 2011), with the Nevada
Secretary of State and delivered a certified copy thereof to Surrey.
(viii) If the Closing is more than four (4) business days after the date of
this Agreement, X-CHANGE shall have filed with the SEC a Form 8-K with respect
to its execution and delivery of this Agreement.
(b) AT THE CLOSING:
All the conditions to Closing enumerated above shall have been satisfied or
waived by the party or parties entitled to the benefit thereof.
X-CHANGE Common Stock shall be eligible for quoting on the OTCQB, shall not be
the subject of, or threatened by, any regulatory or other disciplinary
proceeding by FINRA, the SEC or any other regulatory body, and X-CHANGE shall be
current in its reporting obligations as a reporting company under the Exchange
Act.
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(1) SURREY AND THE SURREY STOCKHOLDER SHALL DELIVER TO X-CHANGE OR ITS
REPRESENTATIVES:
(i) The Surrey Stockholder shall deliver stock certificates for 2,000
shares of Surrey Common Stock, representing all of the Surrey Shares, duly
endorsed for transfer, to X-CHANGE. At the time of assignment, the Surrey
Stockholder shall own his Surrey Shares of record and beneficially, free and
clear of all claims, liens, litigations, encumbrances, taxes, pledges, judgments
or other clouds on title of any kind (together "Claims"). The Surrey Stockholder
shall deliver a certificate to that effect.
(ii) Certified copies of resolutions of Surrey's Board of Directors and of
the Surrey Stockholder authorizing and approving the transactions described in
this Agreement.
(iii) Certificate of good standing for Surrey from the State of Missouri.
(iv) Audited financial statements of Surrey for the years ended December
31, 2008 and December 31, 2009 and any other financial statements, including PRO
FORMA financial statements as may be required by the SEC.
(v) Surrey officer's certificate attesting to the truth and accuracy of the
representations and warranties of Surrey and the Surrey Stockholder in this
Agreement.
(2) X-CHANGE SHALL DELIVER TO SURREY AND/OR THE SURREY STOCKHOLDER:
(i) Its Stock Certificate for 63,283,391 shares of X-CHANGE Common Stock
representing the shares to be issued to the Surrey Stockholder. All of the
X-CHANGE Surrey Shares shall be restricted and bear a legend restricting
transfer except in conformity with the United States and state securities laws.
(ii) Certified copies of resolutions of X-CHANGE's Board of Directors and
the consent of the holders of a majority of the issued and outstanding shares of
X-CHANGE Common Stock authorizing and approving the transactions described in
this Agreement.
(iii) Certificate of good standing for X-CHANGE from the State of Nevada.
(iv) Certified copies of resolutions of X-CHANGE's Board of Directors and
the consent of the holders of a majority of the issued and outstanding shares of
X-CHANGE Common Stock authorized and approving the appointment of five (5)
directors nominated by the Surrey Shareholder. The total size of the Board at
Closing will be seven (7) persons, which will consist of the five Surrey
nominees and the two current directors of X-CHANGE.
(v) The letters of resignation of the current officers of X-CHANGE.
(vi) X-CHANGE officer's certificate attesting to the truth and accuracy of
the representations and warranties of X-CHANGE in this Agreement.
(vii) The corporate minute books and records of X-CHANGE and its
predecessors which shall have been delivered to the Missouri headquarters of
Surrey.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF X-CHANGE
X-CHANGE represents and warrants to Surrey and the Surrey Stockholder that,
except as set forth in the disclosure schedule delivered by X-CHANGE to Surrey
on the date hereof and initialed by the Parties (the "Disclosure Schedule"), the
statements contained in this Article II are correct and complete as of the date
of this Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this Article II). The Disclosure Schedule will be
arranged in paragraphs corresponding to the numbered and lettered sections
contained in this Article II. The representations and warranties in the
Disclosure Schedule are also modified by the incorporation or exclusion of the
"Knowledge" of X-CHANGE where so indicated.
"Knowledge" means, with respect to an individual, that such individual is
actually aware of the relevant fact or such individual would reasonably be
expected to know such fact in the ordinary course of the performance of the
individual's employee or professional responsibility. Any person that is an
entity shall have Knowledge if any officer or director of such person as of the
date such knowledge is imputed has Knowledge of such fact or other matter.
Section 2.1. ORGANIZATION, STANDING AND POWER. X-CHANGE is a corporation
duly organized and validly existing and in good standing under the laws of the
State of Nevada, has all requisite power and authority to own, lease and operate
its properties and to carry on its businesses as now being conducted, and is
duly qualified and in good standing to do business in each jurisdiction in which
a failure to so qualify would have a material adverse effect on the business of
X-CHANGE. X-CHANGE has delivered or made available to Surrey complete and
correct copies of its articles of incorporation together with all amendments
thereto, bylaws, and/or other primary charter and organizational documents
("Charter Documents") of X-CHANGE, in each case, as amended to the date hereof.
The minute books and stock records of X-CHANGE will have been provided, or
copies made available to, Surrey (at Surrey's cost and expense) in their
entirety and contain correct and complete records of all material proceedings
and actions taken at all meetings of, or effected by written consent of, the
stockholders of X-CHANGE and its Board of Directors, and all original issuances,
subsequent transfers, repurchases, and cancellations of X-CHANGE Common Stock
and all other forms of X-CHANGE equity or debt securities.
Section 2.1A SUBSIDIARIES; INVESTMENTS. X-CHANGE has no subsidiaries.
X-CHANGE does not currently own capital stock or any other form of equity in any
corporation or other entity regardless of its form.
Section 2.2 CAPITAL STRUCTURE OF X-CHANGE; X-CHANGE SHARES TO BE ISSUED AT
CLOSING.
(a) The authorized capital stock of X-CHANGE currently consists of (i)
37,500,000 shares of X-CHANGE Common Stock, $.001 par value per share, of which
16,633,791 shares of X-CHANGE Common Stock are issued and outstanding, (ii)
3,750,000 shares of preferred stock, $.001 par value per share, of which there
are no shares of preferred stock are issued and outstanding, and (iii) 2,779,267
warrants to purchase shares of X-CHANGE common stock issued and outstanding. Of
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the 16,633,791 shares of outstanding common stock, 1,282,500 were canceled in
2003 but the certificates have not been delivered for cancelation. An additional
8,456,606 shares of common stock will be returned to X-CHANGE for cancelation at
Closing. At Closing, X-CHANGE shall have 6,894,685 shares of its common stock
issued and outstanding along with a total of 2,779,267 Common Stock Warrants to
purchase 2,779,267 shares of X-CHANGE common stock before the issuance of the
Surrey X-CHANGE Shares. There will be no shares of preferred stock issued and
outstanding at Closing.
(b) All outstanding X-CHANGE Shares are validly issued, fully paid,
nonassessable and not subject to any preemptive rights, or to any agreement to
which X-CHANGE is a party or by which X-CHANGE may be bound. There are no
options, warrants, calls, conversion rights, commitments, agreements, contracts,
understandings, restrictions, arrangements or rights of any character to which
X-CHANGE is a party or by which X-CHANGE may be bound (i) obligating X-CHANGE to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of the capital stock of X-CHANGE except for 2,779,267 warrants issued and
outstanding to purchase shares of X-CHANGE's common stock, or (ii) obligating
X-CHANGE to grant, extend or enter into any such option, warrant, call,
conversion right, conversion payment, commitment, agreement, contract,
understanding, restriction, arrangement or right, or (iii) obligating X-CHANGE
to issue any other form of debt or equity security. X-CHANGE does not have
outstanding any bonds, debentures, (except the La Jolla Cove Debenture in the
amount of 250,000 Dollars) notes or other indebtedness the holders of which (i)
have the right to vote (or convertible or exercisable into securities having the
right to vote) with holders of X-CHANGE Shares on any matter ("X-CHANGE Voting
Debt") or (ii) are or will become entitled to receive any payment as a result of
the execution of this Agreement or the completion of the transactions
contemplated hereby.
(c) The Surrey X-CHANGE Shares, when issued and paid for as provided in
this Agreement, shall be duly authorized and validly issued, fully paid and
nonassessable, and shall be free of any liens, encumbrances, or restrictions on
transfer (other than those created by this Agreement and applicable federal and
state securities laws).
(d) (1) All of the issued and outstanding X-CHANGE shares of common stock
have been sold or granted in full compliance with all applicable federal and
state securities laws, and X-CHANGE has made all applicable federal and state
securities laws filings required in connection with all such sales in a timely
and complete manner.
(d) (2) All of the Surrey X-CHANGE Shares to be issued under this Agreement
will be issued and sold or granted in full compliance with all applicable
federal and state securities laws, and X-CHANGE will have made all applicable
federal and state securities laws filings required in connection with all such
sales and issuances in a timely and complete manner.
Section 2.3 AUTHORITY. The execution, delivery, and performance of this
Agreement by X-CHANGE and the transactions contemplated hereby have been duly
authorized by all necessary action of the Board of Directors and of the holders
of a majority of the issued and outstanding shares of common stock of X-CHANGE.
This Agreement is, and the other documents and instruments required hereby shall
be, when executed and delivered by X-CHANGE, the valid and binding obligations
of X-CHANGE, enforceable against X-CHANGE in accordance with their respective
terms, subject only to bankruptcy, insolvency, reorganization, moratorium or
similar laws at the time in effect affecting the enforceability or rights of
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creditors generally and by general equitable principles which may limit the
right to obtain equitable remedies.
Section 2.4 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. X-CHANGE holds, and
at all times has held, all licenses, permits, and authorizations from all
Governmental Bodies, (as defined below) necessary for the lawful conduct of its
business pursuant to all applicable statutes, laws, ordinances, rules, and
regulations of all such authorities having jurisdiction over it or any part of
its operations. There are no violations or claimed violations known by X-CHANGE
of any such license, permit, or authorization or any such statute, law,
ordinance, rule or regulation. Neither the execution and delivery of this
Agreement by X-CHANGE nor the performance by X-CHANGE of its obligations under
this Agreement will, in any material respect, violate any provision of laws or
will conflict with, result in the material breach of any of the terms or
conditions of, constitute a material default under, permit any party to
accelerate any right under, renegotiate, or terminate, require consent,
approval, or waiver by any party under, or result in the creation of any lien,
charge, encumbrance, or restriction upon any of the properties or assets of
X-CHANGE pursuant to, any of the Charter Documents or any agreement (including,
without limitation, government contracts), promissory notes, indenture,
mortgage, franchise, license, permit, lease or other instrument of any kind to
which X-CHANGE is a party or by which X-CHANGE or any of its assets is bound or
affected. No consent, approval, order or authorization of or registration,
declaration or filing with or exemption by or notice to (collectively
"Consents"), any court, administrative agency, commission or other governmental
authority or instrumentality, whether domestic or foreign (each a "Governmental
Body") or other third-party is required by or with respect to X-CHANGE in
connection with the execution and delivery of this Agreement by X-CHANGE or the
consummation by X-CHANGE of the transactions contemplated hereby, except for (i)
the approval of the Board of Directors and the consent of a majority of the
holders of common stock of X-CHANGE which has already been obtained, (ii) the
filing of the appropriate documents with the Secretary of State of the State of
Nevada, FINRA, and other regulatory authorities which has already occurred, and
(ii) except for such other Consents, which if not obtained or made would not
affect X-CHANGE's ability to close the Exchange Transaction.
Section 2.5 FINANCIAL STATEMENTS; CONTROLS AND PROCEDURES; SEC FILINGS; NO
UNDISCLOSED LIABILITIES. (a) Part 2.5(a) of the Disclosure Schedule includes
true and complete copies of X-CHANGE's' audited consolidated balance sheet at
December 31, 2009 and December 31, 2010, and X-CHANGE's audited statements of
income, cash flow and shareholders' equity for the years ended December 31, 2009
and December 31, 2010 (collectively, the "X-CHANGE Financial Statements"). The
X-CHANGE Financial Statements (i) were prepared in accordance with United States
general accepted accounting principles ("GAAP") (except as may be indicated in
the footnotes to such X-CHANGE Financial Statements and that unaudited financial
statements may not have notes thereto and other presentation items that may be
required by GAAP and are subject to normal and recurring year-end adjustments
that are not reasonably expected to be material in amount) applied on a
consistent basis unless otherwise noted therein throughout the periods indicated
and (ii) fairly present the financial condition and operating results of
X-CHANGE as of the dates and for the periods indicated therein.
(b) X-CHANGE maintains, within the meaning of Rule 13a-15 (e) of the
Securities and Exchange Act of 1934, as amended (the "1934 Act"), a system of
disclosure controls and procedures designed to insure that information required
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to be disclosed by X-CHANGE is recorded, processed, summarized and reported
within the time periods specified in the SEC's rules and forms of reporting.
X-CHANGE maintains, within the meaning of Rule 13a-15(f) of the 1934 Act,
internal control over financial reporting designed to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP and
includes principles and policies that: (1) pertain to the maintenance of records
that in reasonable detail accurately and fairly reflect the transactions and
dispositions of assets of X-CHANGE; (2) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial
statements in accordance with GAP, and that receipts and expenditures of
X-CHANGE are being made only in accordance with authorization of management and
the directors of X-CHANGE; and (3) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition
of X-CHANGE's assets.
(c) Part 2.4(c) of the Disclosure Schedule lists, and X-CHANGE has
delivered to Surrey, accurate and complete copies of the documentation creating
or governing, all securitization transactions and "off-balance sheet
arrangements" (as defined in Item 303(c) of Regulation S-K under the 1934 Act)
effected by X-CHANGE since January 1, 2010.
(d) Since January 1, 2010, there have been no formal or informal internal
investigations regarding financial reporting or accounting policies and
practices discussed with, reviewed by or initiated at the direction of the board
of directors or any committee thereof, the chief executive officer, the chief
financial officer or general counsel of X-CHANGE, or by the staff of the SEC or
any other Governmental Body.
(e) As of the date of this Agreement, X-CHANGE has not had any liability,
indebtedness, obligation, expense, claim, deficiency, guaranty or endorsement of
any kind, whether accrued, absolute, contingent, matured, unmatured or other
(whether or not required to be reflected in the X-CHANGE Financial Statements in
accordance with GAAP) (each a "Liability"), individually or in the aggregate,
except for: (a) liabilities identified as such in the "liabilities" column of
the X-CHANGE December 31, 2010 Balance Sheet; (b) normal and recurring current
liabilities that have been incurred by X-CHANGE since the date of the X-CHANGE
December 31, 2010 Balance Sheet, in the ordinary course of business and which
are not in excess of Fifty Thousand Dollars ($50,000) in the aggregate; (c)
liabilities for performance of obligations of X-CHANGE under X-CHANGE contracts,
all of which will be assigned by X-CHANGE at the Closing or terminated by
X-CHANGE without any liability for the termination.
Section 2.6 TAXES. (a) X-CHANGE has timely filed all Tax Returns that they
were required to file under applicable Legal Requirements. All such Tax Returns
were correct and complete in all material respects and have been prepared in
material compliance with all applicable Legal Requirements. X-CHANGE is not
currently the beneficiary of any extension of time within which to file any Tax
Return. No claim has ever been made by an authority in a jurisdiction where
X-CHANGE does not file Tax Returns that it is or may be subject to taxation by
that jurisdiction.
(b) All Taxes due and owing by X-CHANGE on or before the date hereof
(whether or not shown on any Tax Return) have been paid. The unpaid Taxes of
X-CHANGE (A) did not, as of the date of the X-CHANGE December 31, 2010 Balance
Sheet, exceed the reserve for Tax Liability (rather than any reserve for
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deferred Taxes established to reflect timing differences between book and Tax
income) set forth on the face of the X-CHANGE December 31, 2010 Balance Sheet
(rather than any notes thereto), and (B) will not exceed that reserve as
adjusted for the passage of time through the Closing Date in accordance with the
past custom and practice of X-CHANGE in filing its Tax Returns. Since the date
of the X-CHANGE December 31, 2010 Balance Sheet, X-CHANGE has not incurred any
Liability for Taxes outside the ordinary course of business or otherwise
inconsistent with past custom and practice.
(c) X-CHANGE has withheld and paid all Taxes required to have been withheld
and paid in connection with any amounts paid or owing to any employee,
independent contractor, creditor, stockholder, or other third party.
(d) There are no encumbrances for Taxes (other than Taxes not yet due and
payable) upon the assets of X-CHANGE.
(e) X-CHANGE has not received from any Governmental Body any (i) notice
indicating intent to open an audit or other review, (ii) request for information
related to Tax matters, or (iii) notice of deficiency or proposed adjustment of
or any amount of Tax proposed, asserted, or assessed by any Governmental Body
against X-CHANGE. No proceedings are pending or being conducted with respect to
any Tax matter and no power of attorney (other than powers of attorney
authorizing employees of X-CHANGE to act on behalf of X-CHANGE) with respect to
any Taxes of X-CHANGE has been filed or executed with any Governmental Body.
There are no matters under discussion with any Governmental Body, or known to
X-CHANGE with respect to Taxes that are likely to result in an additional
liability for Taxes with respect to X-CHANGE. X-CHANGE has not waived any
statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax assessment or deficiency nor has any request been made in
writing for any such extension or waiver.
(f) All material elections with respect to Taxes affecting X-CHANGE as of
the date hereof, are set forth on section 2.6 (f) of the Disclosure Schedule.
(g) X-CHANGE is not a party to any Tax allocation, Tax sharing or similar
agreement (including indemnity agreements other than employee tax equalization
agreements).
(h) X-CHANGE has not ever been a member of an affiliated group filing a
consolidated, combined or unitary Tax Return (other than a group the common
parent of which is X-CHANGE) for federal, state, local or foreign Tax purposes.
X-CHANGE has no any liability for the Taxes of any Person (other than X-CHANGE)
under Treasury Regulation Section 1.1502-6 (or any similar provision of state,
local, or foreign law), as a transferee or successor, by contract, or otherwise.
(i) X-CHANGE (i) is not a partner for Tax purposes with respect to any
joint venture, partnership, or other arrangement or contract which is treated as
a partnership for Tax purposes, (ii) does not own a single member limited
liability company which is treated as a disregarded entity, (iii) is not a
shareholder of a "controlled foreign corporation" as defined in Section 957 of
the Code (or any similar provision of state, local or foreign law), (iv) is not
a "personal holding company" as defined in Section 542 of the Code (or any
similar provision of state, local or foreign law), or (v) is not a "passive
foreign investment company" within the meaning of Section 1297 of the Code.
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(j) X-CHANGE has not entered into any transaction identified as a "listed
transaction" for purposes of Treasury Regulations Sections 1.6011-4(b)(2) or
301.6111-2(b)(2). X-CHANGE has not entered into any transaction (i) that would
result in a substantial understatement of federal income tax within the meaning
of Section 6662 of the Code if the treatment claimed by X-CHANGE were disallowed
and (ii) for which there is no substantial authority for X-CHANGE's tax
treatment of such transaction or for which X-CHANGE has not disclosed on its Tax
Return the relevant facts affecting the tax treatment of such transaction.
(k) X-CHANGE has not taken any action, nor has no knowledge of any fact or
circumstance, that could reasonably be expected to prevent the transactions
contemplated hereby, including the Exchange Transaction, from qualifying as a
tax-free reorganization within the meaning of Section 368(b) of the Code.
(l) For the purposes of this Agreement, the following terms shall have the
meanings set forth below:
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Legal Requirement" shall mean any federal, state, foreign, material local
or municipal or other law, statute, constitution, principle of common law,
resolution, ordinance, code, edict, decree, rule, regulation, ruling or
requirement issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any Governmental Body.
"Tax" shall mean any federal, state, local, foreign or other tax, including
any income tax, franchise tax, capital gains tax, gross receipts tax,
value-added tax, surtax, estimated tax, unemployment tax, national health
insurance tax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax,
use tax, property tax, business tax, withholding tax, payroll tax, customs duty,
alternative or add-on minimum or other tax of any kind whatsoever, and including
any fine, penalty, addition to tax or interest, whether disputed or not.
"Tax Return" shall mean any return (including any information return),
report, statement, declaration, estimate, schedule, notice, notification, form,
election, certificate or other document or information, and any amendment or
supplement to any of the foregoing, filed with or submitted to, or required to
be filed with or submitted to, any Governmental Body in connection with the
determination, assessment, collection or payment of any Tax or in connection
with the administration, implementation or enforcement of or compliance with any
Legal Requirement relating to any Tax.
Section 2.7 LEASES IN EFFECT; REAL PROPERTY. X-CHANGE does not own any real
property and is not a party to any commercial or other form of space lease.
Section 2.8 PERSONAL PROPERTY. X-CHANGE owns its personal property free and
clear of all liens, taxes, charges, encumbrances and claims of any kind.
Section 2.9 LITIGATION AND OTHER PROCEEDINGS. (a) There is no pending Legal
Proceeding (as defined below in Section 2.9(c)), and (to the Knowledge of
X-CHANGE) no Person has threatened to commence any Legal Proceeding: (i) that
involves X-CHANGE, any X-CHANGE director or officer (in his or her capacity as
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such) or any of the material assets owned or used by X-CHANGE; or (ii) that
challenges, or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with, this Agreement and the Exchange Transaction. To
the Knowledge of X-CHANGE, no event has occurred, and no claim, dispute or other
condition or circumstance exists, that will, or that would reasonably be
expected to, give rise to or serve as a basis for the commencement of any such
Legal Proceeding.
(b) There is no order, writ, injunction, judgment or decree to which
X-CHANGE or any of the assets owned or used by X-CHANGE, is subject. To the
Knowledge of X-CHANGE, no officer or director of X-CHANGE is subject to any
order, writ, injunction, judgment or decree that prohibits such officer or
director from engaging in or continuing any conduct, activity or practice
relating to the business of X-CHANGE or to any material assets owned or used by
X-CHANGE.
(c) For purposes of this Agreement, "Legal Proceeding" shall mean any
action, suit, litigation, arbitration, proceeding (including any civil,
criminal, administrative, investigative or appellate proceeding), hearing,
inquiry, audit, examination or investigation commenced, brought, conducted or
heard by or before, or otherwise involving, any court or other Governmental Body
or any arbitrator or arbitration panel.
Section 2.10 NO DEFAULTS. X-CHANGE is not, nor has X-CHANGE received notice
that it would be with the passage of time or has any knowledge of any event that
with the passage of time and/or written notice thereof would cause X-CHANGE to
be,, in default or violation of any term, condition or provision of (i) the
Charter Documents of X-CHANGE; (ii) any judgment, decree or order applicable to
X-CHANGE; or (iii) any loan or credit agreement, note, bond, mortgage,
indenture, contract, agreement, lease, license or other instrument to which
X-CHANGE is now a party or by which it or any of its properties or assets may be
bound.
Section 2.11 MAJOR CONTRACTS. Except as set forth on section 2.11 of the
Disclosure Schedule, X-CHANGE is not a party to or subject to any contract or
arrangement that will not be satisfied in its entirety or terminated prior to or
at the Closing of the Exchange Transaction without any remaining liability by
X-CHANGE to any other party.
Section 2.12 INSURANCE. X-CHANGE has such insurance coverage as it deems
reasonably necessary in connection with the business it currently operates.
Section 2.13 EMPLOYEES/ CONSULTANTS. X-CHANGE does not have any written or
oral contract of employment or consulting with anyone. X-CHANGE does not have
any employees, and has not had any employees for the period beginning January 1,
2010 to the date of this Agreement. Except as set forth on section 2.13 of the
Disclosure Schedule, there are no claims pending, or threatened to be brought,
in any court or administrative agency by any former X-CHANGE employee or
consultant. Except as set forth on section 2.13 of the Disclosure Schedule,
X-CHANGE has paid in full all salaries, benefits, bonuses, commissions or other
forms of compensation for all employees, consultants or agents of X-CHANGE.
Section 2.14 EMPLOYEE BENEFIT PLANS. X-CHANGE has not sponsored, maintained
or supported, or otherwise been a party to, any employee benefit plans,
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including, without limitation, any "employee pension benefit plan" or "employee
welfare benefit plan", as such terms are defined in Section 3 of the Employee
Retirement Income Security Act of 1974, as amended.
Section 2.15 ENVIRONMENTAL MATTERS. X-CHANGE is in compliance in all
material respects with all applicable environmental laws, which compliance
includes the possession by X-CHANGE of all permits and other Governmental
Authorizations required under applicable Environmental Laws and compliance with
the terms and conditions thereof. X-CHANGE has not received any written notice
or other communication (in writing or otherwise), whether from a Governmental
Body, citizens group, employee or otherwise, that alleges that X-CHANGE is not
in compliance with any environmental law, and, to the Knowledge of X-CHANGE,
there are no circumstances that may prevent or interfere with X-CHANGE's
compliance with any environmental law in the future.
Section 2.16 INTELLECTUAL PROPERTY. (a) X-CHANGE does not own any
"Intellectual Property" which for purposes of this section 2.16 is defined as
(a) United States, foreign and international patents, patent applications,
including provisional applications, statutory invention registrations, invention
disclosures and inventions, (b) trademarks, service marks, trade names, domain
names, URLs, trade dress, logos and other source identifiers, including
registrations and applications for registration thereof, (c) copyrights,
including registrations and applications for registration thereof, and (d)
software, formulae, customer lists, trade secrets, know-how, confidential
information and other proprietary rights and intellectual property, whether
patentable or not.
(b) X-CHANGE and its directors, officers and employees are not bound by any
contract to indemnify, defend, hold harmless, or reimburse any other person with
respect to any Intellectual Property infringement, misappropriation, or similar
claim. X-CHANGE has never assumed, or agreed to discharge or otherwise take
responsibility for, any existing or potential liability of another person for
infringement, misappropriation, or violation of any Intellectual Property right.
To the Knowledge of X-CHANGE, X-CHANGE has never infringed on the Intellectual
Property rights of any other Person, and has never receive notice of any such
Claim.
Section 2.17 BROKERS AND FINDERS. X-CHANGE has not retained any broker,
finder, or investment banker in connection with this Agreement or any of the
transactions contemplated by this Agreement, nor (ii) does or will X-CHANGE owe
any fee or other amount to any broker, finder, or investment banker in
connection with this Agreement or the transactions contemplated by this
Agreement.
Section 2.18 DISCLOSURE. Neither the representations or warranties made by
X-CHANGE, or any other certificate executed and delivered by X-CHANGE pursuant
to this Agreement, contains any untrue statement of a material fact, or omits to
state a material fact necessary to make the statements or facts contained herein
or therein not misleading in light of the circumstances under which they were
furnished.
Section 2.19 OTCQB/EXCHANGE ACT REPORTING; COMPLIANCE. (a) X-CHANGE Common
Stock is currently eligible for quotation on the OTCQB and has not received
notice of any kind, written or oral, that its ability to remain on the OTCQB is
the subject of any regulatory or other proceeding or investigation of any kind
by anyone including without limitation, the SEC and FINRA. X-CHANGE is a
"reporting company" within the meaning of the Rules and Regulations of the
Exchange Act, and, except as set forth on the Disclosure Schedule, is current in
all its reporting obligations under the Exchange Act.
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(b) X-CHANGE has delivered to Surrey accurate and complete copies of all
registration statements, proxy statements, Certifications (as defined below) and
other statements, reports, schedules, forms and other documents filed by
X-CHANGE with the SEC since January 1, 2009 (the "X-CHANGE SEC Documents"),
other than such documents that can be obtained on the SEC's website at
www.sec.gov. Except as set forth on section 2.19 of the Disclosure Schedule, all
statements, reports, schedules, forms and other documents required to have been
filed by X-CHANGE or its officers with the SEC have been so filed on a timely
basis. As of the time it was filed with the SEC (or, if amended or superseded by
a filing prior to the date of the Exchange Agreement, then on the date of such
filing), each of the X-CHANGE SEC Documents complied in all material respects
with the applicable requirements of the Securities Act of 1933 , as amended (the
"1933 Act") or the 1934 Act (as the case may be) and, as of the time they were
filed, none of the X-CHANGE SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The certifications and
statements required by (A) Rule 13a-14 under the 1934 Act and (B) 18 U.S.C.
ss.1350 (Section 906 of the Sarbanes-Oxley Act) relating to the X-CHANGE SEC
Documents (collectively, the "Certifications") are accurate and complete and
comply as to form and content with all applicable Legal Requirements. As used in
this Section 3, the term "file" and variations thereof shall be broadly
construed to include any manner in which a document or information is furnished,
supplied or otherwise made available to the SEC.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SURREY
Surrey represents and warrants to X-CHANGE that, except as set forth in the
disclosure schedule delivered by Surrey to X-CHANGE to on the date hereof and
initialed by the Parties (the "Disclosure Schedule"), the statements contained
in this Article III are correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made then and
as though the Closing Date were substituted for the date of the Exchange
Agreement throughout this Article III). The Disclosure Schedule will be arranged
in paragraphs corresponding to the numbered and lettered sections contained in
this Article III. The representations and warranties in the Disclosure Schedule
are also modified by the incorporation or exclusion of the "Knowledge" of
X-CHANGE where so indicated.
"Knowledge" means, with respect to an individual, that such individual is
actually aware of the relevant fact or such individual would reasonably be
expected to know such fact in the ordinary course of the performance of the
individual's employee or professional responsibility. Any Person that is an
Entity shall have Knowledge if any officer or director of such Person as of the
date such knowledge is imputed has Knowledge of such fact or other matter.
Surrey represents and warrants to X-CHANGE as followS; PROVIDED, HOWEVER,
THAT the Surrey Stockholder makes the representations and warranties set forth
only in sections 3.2 and 3.2A:
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Section 3.1 ORGANIZATION, STANDING AND POWER. Surrey is a corporation duly
organized and validly existing under the laws of the State of Missouri, and has
all requisite power and authority to own, lease and operate its properties and
to carry on its businesses as now being conducted, and is duly qualified and in
good standing to do business in each jurisdiction in which a failure to so
qualify would have a material adverse effect on the business of Surrey. Surrey
has delivered or made available to X-CHANGE complete and correct copies of the
certificate of incorporation, bylaws, and/or other primary charter and
organizational documents ("Charter Documents") of Surrey or its subsidiaries, in
each case, as amended to the date hereof.
Section 3.1A SUBSIDIARIES; INVESTMENTS. Surrey has ___ subsidiaries:
____________________________. Surrey has not made any investments in and does
not own any capital stock or any other form of equity in any corporation or
other entity regardless of its organizational form, except as shown on the
financial statements of Surrey.
Section 3.2 AUTHORITY. Each of Surrey and the Surrey Stockholder has duly
and validly executed and delivered this Agreement, and this Agreement
constitutes the valid, binding, and enforceable obligation of each of Surrey and
the Surrey Stockholder in accordance with its terms. Surrey has the requisite
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions provided for herein and therein, have been duly
authorized by the unanimous consent of the Board of Directors of Surrey and does
not violate any provision of the Articles of Incorporation or Bylaws of Surrey.
The execution by Surrey of this Agreement and except for any required
Governmental Entity approval of the transactions contemplated hereby, the
consummation of the transactions provided for hereby and thereby, will not
conflict with or effect a breach, violation, default, or cause an event of
default, under any mortgage, lease, or other material agreement or instrument,
or any statute, regulation, order, judgment or decree to which Surrey is a party
or by which it is bound, or any Law applicable to it, or require the consent of
any Person. No consent, approval, order or authorization of, action by or in
respect of, or registration, declaration or filing with, any (i) federal, state,
local, municipal or foreign government, (ii) governmental, quasi-governmental
authority (including any governmental agency, commission, public authority,
branch, department or official, and any court or other tribunal) or body
exercising, or entitled to exercise, any governmentally-derived administrative,
executive, judicial, legislative, police, regulatory or taxing authority, or
(iii) any self-regulatory organization, administrative or regulatory agency,
commission, tribunal or authority (each, a "GOVERNMENTAL ENTITY") is required by
or with respect to Surrey or any of its subsidiaries in connection with the
execution and delivery of this Agreement by Surrey or the consummation by Surrey
of the transactions contemplated hereby. This Agreement constitutes a legal,
valid and binding obligations of Surrey, enforceable in accordance with its
terms, except as enforcement thereof may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting rights of
creditors generally and general principles of equity, whether applied at law or
in equity.
The Surrey Stockholder has full power and authority to execute and deliver
this Agreement and to perform his obligations hereunder. Surrey and the Surrey
Stockholder need not give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement. The Surrey
Stockholder holds of record and owns beneficially all of the Surrey Shares shown
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opposite his name on Schedule A hereto, free and clear of any restrictions on
transfer under the laws of the United States or any other jurisdiction in which
said Stockholder is domiciled, including any taxes, security interests, pledges,
encumbrances, options, warrants, purchase rights, contracts, commitments,
equities, claims, and demands of any kind (together "Claims"). The Surrey
Stockholder is not a party to any option, warrant, purchase right, or other
contract or commitment that could require the Surrey Stockholder to sell,
transfer, or otherwise dispose of any of the Surrey Shares.
Section 3.2A INVESTMENT; RESTRICTIONS ON TRANSFER; LEGENDS. (a) The Surrey
Stockholder: (i) understands that the Surrey X-CHANGE Shares have not been, and
will not be, registered under the 1933 Act, or under any United States state
securities laws, and are being offered and sold in reliance upon United States
federal and state exemptions for transactions not involving any public offering,
(ii) is acquiring the Surrey X-CHANGE Shares solely for his own account for
investment purposes, and not with a view to the distribution thereof, (iii) is
an accredited investor as that term is defined in the federal securities law,
with knowledge and experience in business and financial matters, (iv) has
received certain information concerning X-CHANGE and has had the opportunity to
obtain additional information as desired in order to evaluate the merits and the
risks inherent in holding the Surrey X-CHANGE Shares, and (v) is able to bear
the economic risk and lack of liquidity inherent in holding the Surrey X-CHANGE
Shares.
(b) Without in any way limiting the representations set forth above, the
Surrey Stockholder further agrees not to make any disposition of all or any
portion of the Surrey X-CHANGE Shares unless and until:
(i) there is then in effect a registration statement under the 1933 Act
covering such proposed disposition and such disposition is made in accordance
with such registration statement; or
(ii) the Surrey Stockholder shall have notified X-CHANGE of the proposed
disposition and shall have furnished X-CHANGE with a statement of the
circumstances surrounding the proposed disposition, and, if reasonably requested
by X-CHANGE, the Surrey Stockholder shall, at his expense, furnish X-CHANGE with
an opinion of counsel, reasonably satisfactory to X-CHANGE, that such
disposition shall not require registration of such securities under the
Securities Act.
(c) It is understood that the certificates evidencing the Surrey X-CHANGE
Shares shall bear legends substantially similar to the legends set forth below
(in addition to any legend required under applicable state securities laws):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR STATE
SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, OR OTHERWISE
TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THIS
SECURITY BE TRANSFERRED ON THE BOOKS OF THE COMPANY, WITHOUT REGISTRATION
OF SUCH SECURITY UNDER ALL APPLICABLE UNITED STATES FEDERAL OR STATE
SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH
COMPLIANCE, AT THE OPTION OF THE COMPANY, TO BE EVIDENCED BY AN OPINION OF
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THE SECURITY HOLDER'S COUNSEL, IN A FORM ACCEPTABLE TO THE COMPANY, THAT NO
VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED
TRANSFER OR ASSIGNMENT."
Any other legends required by state securities laws applicable to any
individual Investor.
The legend set forth above shall be removed by X-CHANGE upon delivery to
X-CHANGE of an opinion by counsel, reasonably satisfactory to X-CHANGE, that a
registration statement under the 1933 Act is at that time in effect with respect
to the legended security or that such security can be freely transferred in a
public sale without such a registration statement being in effect and that such
transfer shall not jeopardize the exemption or exemptions from registration
pursuant to which X-CHANGE issued the Surrey X-CHANGE Shares.
Section 3.3 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. The execution and
delivery of this Agreement by Surrey and the Surrey Stockholder and the
performance by Surrey and the Surrey Stockholder of their obligations under this
Agreement will not violate any provision of law or conflict with, result in the
breach of any of the terms and conditions of, constitute a default under, permit
any party to accelerate any right under, renegotiate or terminate, require
consent, approval, or waiver by any party under, or result in the creation of
any lien, charge, or encumbrance upon, any of the properties, assets, or shares
of capital stock of Surrey or the Surrey Stockholder pursuant to any charter
document of Surrey or any agreement, indenture, mortgage, franchise, license,
permit, lease, or other instrument of any kind to which Surrey or the Surrey
Stockholder is a party or by which Surrey, the Surrey Shares or any of its
assets are bound or affected. No Consent is required from or with respect to
Surrey or the Surrey Stockholder in connection with the execution and delivery
of this Agreement by Surrey and the Surrey Stockholder or the consummation by
Surrey and the Surrey Stockholder of the transactions contemplated hereby,
except for authorization of the Board of Directors of Surrey and the consent of
the Surrey Stockholder, both of which have already been obtained.
Section 3.4 FINANCIAL STATEMENTS. Surrey has delivered, or will deliver at
Closing, to X-CHANGE its audited financial statements for the fiscal years ended
December 31, 2009 and December 31, 2010 (the "Surrey Financial Statements").
Surrey represents and warrants that the Surrey Financial Statements are true,
complete and correct and accurately reflect the financial condition of Surrey
for the periods indicated. Surrey represents and warrants that, except as set
forth on the Surrey Financial Statements, there are no off-balance sheet
liabilities, claims or obligations of any nature, whether accrued, absolute,
contingent, anticipated, or otherwise, whether due or to become due, of Surrey.
Section 3.5 CAPITAL STRUCTURE. The authorized capital stock of Surrey
consists of __________________________ (_______________) shares of Surrey Common
Stock, par value $.001 per share ("Surrey Common Shares"), of which 2,000 Common
Shares are issued and outstanding. At the date of Closing of the Exchange
Agreement, all Surrey Common Shares issued and outstanding are owned of record
and beneficially by the Surrey Stockholder. The Surrey Common Shares that are
owned by the Surrey Stockholder have been duly and validly issued, are fully
paid, nonassessable and are not subject to any preemptive rights. There are no
options, warrants, calls, conversion rights, commitments, agreements, contracts,
understandings, restrictions, arrangements or rights of any character to which
Surrey is a party or by which Surrey may be bound obligating Surrey to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
the capital stock of Surrey, or obligating Surrey to grant, extend or enter into
any such option, warrant, call, conversion right, conversion payment,
16
commitment, agreement, contract, understanding, restriction, arrangement or
right. Surrey does not have outstanding any bonds, debentures, notes or other
indebtedness the holders of which (i) have the right to vote (or convertible or
exercisable into securities having the right to vote) with holders of Surrey
Common Shares on any matter.
Section 3.6 INTELLECTUAL PROPERTY RIGHTS. Surrey owns or possesses adequate
rights to use all Intellectual Property which are necessary to conduct its
business as currently conducted, (b) Surrey does not expect the expiration of
any Intellectual Property would result in a material adverse effect on Surrey,
(c) Surrey has not received any notice of, and has no knowledge of, any
infringement of or conflict with asserted rights of Surrey by others with
respect to any Intellectual Property which would result in a material adverse
effect on Surrey, and (d) Surrey has not received any notice of, and has no
knowledge of, any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to have a material adverse effect on Surrey. Except as otherwise
disclosed in Surrey's Disclosure Schedule, to the knowledge of Surrey there is
no claim being made against Surrey regarding the Intellectual Property of any
other person. As used in this Section only, references to the "knowledge" of
Surrey shall mean only the actual knowledge of the officers of Surrey.
Section 3.7 LITIGATION AND OTHER PROCEEDINGS. (a) Except as set forth on
section 3.7 of the Disclosure Schedule, there is no pending Legal Proceeding,
and (to the Knowledge of Surrey) no Person has threatened to commence any Legal
Proceeding: (i) that involves Surrey, any Surrey director or officer (in his or
her capacity as such) or any of the material assets owned or used by Surrey; or
(ii) that challenges, or that may have the effect of preventing, delaying,
making illegal or otherwise interfering with, this Agreement and the Exchange
Transaction. To the Knowledge of Surrey, no event has occurred, and no claim,
dispute or other condition or circumstance exists, that will, or that would
reasonably be expected to, give rise to or serve as a basis for the commencement
of any such Legal Proceeding.
(b) There is no order, writ, injunction, judgment or decree to which Surrey
or any of the assets owned or used by Surrey, is subject. To the Knowledge of
Surrey, no officer or director of Surrey is subject to any order, writ,
injunction, judgment or decree that prohibits such officer or director from
engaging in or continuing any conduct, activity or practice relating to the
business of Surrey or to any material assets owned or used by Surrey.
Section 3.8 NO DEFAULTS. Surrey is not, and has not received notice that it
would be with the passage of time, in default or violation of any term,
condition or provision of (i) the Charter Documents of Surrey; (ii) any
judgment, decree or order applicable to Surrey; or (iii) any loan or credit
agreement, note, bond, mortgage, indenture, contract, agreement, lease, license
or other instrument to which Surrey is now a party or by which it or any of its
properties or assets may be bound, except for defaults and violations which,
individually or in the aggregate, would not have a material adverse effect on
the business of Surrey.
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Section 3.9 TITLE TO PROPERTIES: LEASEHOLD INTERESTS. Except as set forth
on section 3.9 of the Disclosure Schedule, Surrey has good and valid title to
all properties and assets, real and personal, as may be required to operate its
business.
Section 3.10 CONDITION OF TANGIBLE ASSETS. All material items of Surrey's
tangible personal property are in good condition and repair, subject to normal
wear and tear, and are usable in the regular and ordinary course of business of
Surrey.
Section 3.11 CONTRACTS AND COMMITMENTS. Except as set forth on section 3.11
of the Disclosure Schedule, Surrey is not in material default in the
performance, observance or fulfillment of any obligations, covenants or
conditions of any agreement, contract or other commitment to which it is a
party, either singly or in the aggregate.
Section 3.12 NO BROKER OR FINDER. Surrey has not dealt with or retained any
finder or broker whose fees or expenses have been paid by Surrey or for whose
fees or expenses they would be responsible in connection with this Agreement or
the Exchange Transactions.
Section 3.13 EMPLOYEE BENEFIT PLANS AND ARRANGEMENTS. Surrey is not in
material violation of any employee benefit plan it sponsors or supervises.
Section 3.14 TAX MATTERS. Surrey has filed or will file on a timely basis
(including all extensions) all Tax Returns which were required to have been
filed prior to the Closing Date and such returns are complete and accurate in
all respects. Surrey has paid or provided for all Taxes which have been incurred
or are due and payable pursuant to such Tax Returns or pursuant to any
assessments received in connection with such Returns. No taxing authority has
provided Surrey with any notice of any questions relating to or claims asserted
for Taxes against Surrey for which it may be liable. All Taxes which Surrey is
required by law to withhold or collect have been duly withheld or collected and,
to the extent required, have been paid over to the proper governmental
authorities.
Section 3.15 DISCLOSURE. The representations or warranties made by Surrey
in this Agreement, and in the Disclosure Schedule or any other certificate
executed and delivered by Surrey pursuant to this Agreement, do not contain any
untrue statement of a material fact, or omit to state a material fact necessary
to make the statements or facts contained herein or therein not misleading in
light of the circumstances under which they were furnished.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE EXCHANGE
TRANSACTION. The respective obligation of each party to close the Exchange
Transaction shall be subject to the satisfaction prior to the Closing Date of
the following conditions:
Section 4.1.1 GOVERNMENTAL FILINGS AND APPROVALS. All Consents legally
required for the consummation of the Exchange Transaction and the transactions
contemplated by this Agreement, including the filing of the Name Change with
FINRA, the receipt of a new trading symbol from FINRA, the receipt of a new
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CUSIP Number from the CUSIP Bureau, and including all filings, consents and
approvals under the Exchange Act, if any, shall have been filed, occurred, or
been obtained, other than such Consents, for which the failure to obtain would
have no material adverse effect on the consummation of the Exchange Transaction
or the other transactions contemplated hereby or on the business of X-CHANGE or
Surrey.
Section 4.1.2 NO RESTRAINTS. No statute, rule, regulation, executive order,
decree or injunction shall have been enacted, entered, promulgated or enforced
by any United States, court or other Governmental Body of competent jurisdiction
which enjoins or prohibits the consummation of the Exchange Transaction.
Section 4.1.3 NO LEGAL ACTION. There shall not be overtly threatened or
pending any action, proceeding or other application before any court or
Governmental Body brought by any person or Governmental Body: (i) challenging or
seeking to restrain or prohibit the consummation of the transactions
contemplated by this Agreement, or seeking to obtain any damages caused by such
transactions which if successful would have a material adverse effect on the
viability of such transactions; or (ii) seeking to prohibit or impose any
limitations on the ownership of the Surrey X-CHANGE Shares by the Surrey
Stockholder, or the operation and control of X-CHANGE, or to compel Surrey to
dispose of or hold separate all or any portion of its business or assets as a
result of the transactions contemplated by this Agreement which if successful
would have a material adverse effect on the viability of such transactions.
Section 4.2 CONDITIONS TO OBLIGATIONS OF SURREY AND THE SURREY STOCKHOLDER.
The obligations of Surrey and the Surrey Stockholder to close the Transaction
are subject to the satisfaction of the following conditions unless waived by
Surrey:
Section 4.2.1 REPRESENTATIONS AND WARRANTIES OF X-CHANGE. The
representations and warranties of X-CHANGE set forth in or required by this
Agreement and the X-CHANGE Disclosure Schedule shall be true and correct in all
respects as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, except as otherwise contemplated by this
Agreement. Surrey shall have received a certificate signed by an officer of
X-CHANGE, to such effect on the Closing Date.
Section 4.2.2 There shall be no judgment, order, restraining order and/or
injunction (temporary or otherwise), decree, statute, law, ordinance, rule or
regulation, entered, enacted, promulgated, enforced or issued by any court or
other Governmental Entity or other legal restraint or prohibition (collectively,
"RESTRAINTS") shall be in effect preventing or materially delaying the
consummation of the transactions contemplated hereby.
Section 4.2.3 X-CHANGE AGREEMENTS. Surrey and the Surrey Stockholder shall
have received documentary evidence satisfactory to both of them and their
counsel that X-CHANGE has complied with all of the conditions listed in section
1.2(a) and (b)(2) of this Agreement.
Section 4.2.4 RESIGNATION OF X-CHANGE OFFICERS; APPOINTMENT OF ADDITIONAL
DIRECTORS. As of the Closing, all of the X-CHANGE officers and employees (if
any) shall have been terminated or resigned. The two X-CHANGE directors shall
remain as directors and the Surrey Shareholder shall have nominated five (5)
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additional directors such that at Closing, there shall be seven (7) directors of
X-CHANGE.
Section 4.2.5 CONSENTS. Surrey and the Surrey Stockholder shall have
received duly executed copies of all third-party consents, approvals,
assignments, waivers, authorizations or other certificates contemplated by this
Agreement or the Disclosure Schedule or reasonably deemed necessary by Surrey's
and the Surrey Stockholder's legal counsel to consummate the transactions
contemplated hereby in form and substance satisfactory to Surrey and said
counsel.
Section 4.2.6 OTCQB AND EXCHANGE ACT. X-CHANGE shall continue to be
eligible for quotation on the OTCQB, and shall be current in all its reporting
obligations under the Exchange Act except for the post-Closing filings required
under this Agreement.
Section 4.3 CONDITIONS OF OBLIGATION OF X-CHANGE. The obligation of
X-CHANGE to effect the Exchange Transaction is subject to the satisfaction of
the following conditions unless waived by X-CHANGE:
Section 4.3.1 REPRESENTATIONS AND WARRANTIES OF SURREY AND THE SURREY
STOCKHOLDER. The representations and warranties of Surrey and the Surrey
Stockholder set forth in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, except as otherwise contemplated by
this Agreement, and X-CHANGE shall have received a certificate signed on behalf
of Surrey by an officer of Surrey, and a certificate signed by the Surrey
Stockholder to such effect.
Section 4.3.2 PERFORMANCE OF OBLIGATIONS OF SURREY AND THE SURREY
STOCKHOLDER. Surrey and the Surrey Stockholder shall have performed in all
material respects all agreements and covenants required to be performed by them
under this Agreement prior to the Closing Date, and X-CHANGE shall have received
a certificate signed on behalf of Surrey by an officer of Surrey to such effect.
Section 4.3.3 There shall be no judgment, order, restraining order and/or
injunction (temporary or otherwise), decree, statute, law, ordinance, rule or
regulation, entered, enacted, promulgated, enforced or issued by any court or
other Governmental Entity or other legal restraint or prohibition (collectively,
"RESTRAINTS") shall be in effect preventing or materially delaying the
consummation of the transactions contemplated hereby
Section 4.3.4 AGREEMENTS OF SURREY AND SURREY STOCKHOLDERS. X-CHANGE shall
have received documentary evidence satisfactory to X-CHANGE and its counsel that
Surrey and the Surrey Stockholder have complied with all of the conditions
listed in section 1.2(a) and (b)(1) of this Agreement.
ARTICLE V
POST-CLOSING COVENANTS
Section 5.1 FURTHER ASSURANCES. Each party hereby covenants to and with all
other parties that, from time to time after the Closing of the Exchange
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Transaction, at any party's reasonable request, any other party will do,
execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered such further acts, conveyances, transfers,
assignments, powers of attorney and assurances as the requesting party may
require to effectuate the intentions of the parties under this Agreement and the
Exchange Transaction.
5.2 AGREEMENTS AS TO TAX MATTERS. The parties to this Agreement will
cooperate fully with each other, in connection with the preparation, signing and
filing of tax returns and in any administrative, judicial or other proceeding
involving taxes relating to the Company.
5.3 POST-CLOSING DOCUMENTS. The parties hereto will cooperate with one
another after Closing and, without any further consideration, will execute and
deliver such other documents as shall be reasonably required after the Closing
to transfer title to the Transferred Shares and the shares to be issued pursuant
to Section 2.02 to Purchaser and the Sold Shares to the Company and to take any
other action necessary to carry out the intent and purposes of this Agreement.
ARTICLE VI
INDEMNIFICATION
6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Except as
provided in Section 6.02 and the Tax obligations set forth herein, all
representations and warranties made by any party hereto contained in this
Agreement or in any Ancillary Document, and the indemnification obligations of
each party hereto with respect to representations and warranties, shall survive
for a period ending two years following the Closing Date. Notwithstanding the
foregoing, the representations and warranties relating to Section 3.14 hereof,
and the indemnity obligations with respect to such representations and
warranties, shall remain operative and in full force and effect until the
expiration of the applicable statute of limitations.
6.02. INDEMNIFICATION BY THE COMPANY. Surrey hereby agrees to indemnify and
hold X-CHANGE harmless from and against any damages, losses, liabilities,
deficiencies, costs and/or expenses (including all reasonable legal fees,
expenses and other out-of-pocket costs) (collectively, "DAMAGES") resulting
from, arising out of or in connection with or related to the transactions under
this Agreement whether or not any such Damages are in connection with any
action, suit, proceeding, demand or judgment of a third party (including
Governmental Entities).
ARTICLE VII
MISCELLANEOUS
Section 7.1 EXPENSES. Each party shall pay its own expenses (including
legal and accounting costs and expenses) in connection with the negotiation,
preparation and consummation of this Agreement, the consummation of the Exchange
Transaction and other transactions contemplated by this Agreement.
Section 7.2 CONTENTS OF AGREEMENT; AMENDMENT; PARTIES IN INTEREST; ETC.
This Agreement, the attached exhibits, including the Disclosure Schedules of the
respective parties hereto, attached hereto or subsequently delivered to the
other parties sets forth the entire understanding of the parties with respect to
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the transactions contemplated by this Agreement. Any and all previous agreements
and understandings between or among the parties regarding the subject matter
hereof, whether written or oral, are terminated, null and void, and are
superseded by this Agreement. This Agreement shall not be amended or modified
except by written instrument duly executed by X-CHANGE, Surrey and the Surrey
Stockholder.
Section 7.3 ASSIGNMENTS AND BINDING EFFECT. This Agreement may not be
assigned prior to the Closing by any party without the prior written consent of
all of the other parties hereto. Any such assignment or purported assignment
shall be null and void and shall result in the termination of this Agreement.
Section 7.4 WAIVER. Any term or provision of this Agreement may be waived
at any time by the party entitled to the benefit thereof by a written instrument
duly executed by such party.
Section 7.5 NOTICES. Any notice, request, demand, waiver, consent, approval
or other communication which is required or permitted hereunder shall be in
writing and shall be deemed given only if delivered personally or sent by
overnight courier, delivery charges prepaid, or by registered or certified mail,
postage prepaid, or by facsimile transmission, confirmation received, as
follows:
If to Surrey or the Surrey Stockholder:
If to X-CHANGE:
The X-Change Corporation
Attn: Havilland Wright
12655 North Central Parkway Suite 1000
Dallas, Texas 75243
With a copy to (which shall not constitute notice):
Claudia J. McDowell
McDowell Odom LLP
28212 Kelly Johnson Parkway Suite 110
Valencia CA 91355
(661) 414-7125
(818) 359-5909 Facsimile
claudia@mcdowellodom.com
Surrey Vacation Resorts, Inc.
Attn: CJ Perme
430-C Hwy 165 South
Branson, MO 65616
With a copy to (which shall not constitute notice):
David Akers
430-C Hwy 165 South
Branson, MO 65616
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or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communications will be deemed to have been given as
of the date personally delivered or sent by facsimile, the next business day if
sent by overnight courier, and the third business day if mailed, excluding the
day of mailing.
Section 7.6 GOVERNING LAW; WAIVER OF JURY TRIAL. All questions concerning
the construction, interpretation and validity of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Missouri without giving effect to any conflict of law provision or rule
(whether in the State of Texas or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Texas. In
furtherance of the foregoing, the internal law of the State of Texas will
control the interpretation and construction of this Agreement, even if under
such jurisdiction's conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily or necessarily apply.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE
MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND
THE PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
Section 7.7 SUBMISSION TO JURISDICTION. Any legal action or proceeding with
respect to this Agreement or the Exchange Transaction may be brought in the
courts of the State of Missouri and the United States of America located in the
State of Missouri and, by execution and delivery of this Agreement, X-CHANGE,
Surrey and the Surrey Shareholder hereby accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts.
Section 7.8 HEADINGS. Article and section headings used in this Agreement
are for convenience only and shall not affect the meaning or construction of
this Agreement.
Section 7.9 NO THIRD PARTY BENEFICIARY RIGHTS. The representations,
warranties, covenants and agreements contained in this Agreement are for the
sole benefit of the parties hereto, and all parties expressly disclaim any and
all third party benefits or the intention to create any third party benefits
under this Agreement.
Section 7.10 SCHEDULES AND EXHIBITS. All Exhibits and Schedules referred to
herein are intended to be and hereby are specifically made a part of this
Agreement and are incorporated herein by reference.
Section 7.11 SEVERABILITY. Any provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall be ineffective to the extent of such
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invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions.
Section 7.12 MULTIPLe COUNTERPARTS; FACSIMILE. This Agreement may be
executed in any number of counterparts and any party hereto may execute any such
counterpart, each of which when executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall constitute but one
and the same instrument. This Agreement shall become binding when one or more
counterparts taken together shall have been executed and delivered by all of the
parties hereto. This Agreement may be signed in any number of counterparts or by
facsimile signature, each of which shall be an original, with the same effect as
if all signatures were on the same instrument and were original signatures.
Section 7.13 CONSTRUCTION; INTERPRETATION.
(A) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include masculine
and feminine genders.
(B) The parties hereto agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting Party shall not be
applied in the construction or interpretation of this Agreement.
(C) As used in this Agreement, the words "include" and "including and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation."
(D) Except as otherwise indicated, all references in this Agreement to
"Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this
Agreement and Exhibits and Schedules to this Agreement.
(E) The bold-faced headings contained in the Exchange Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement to be
effective as of the date first above written.
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THE X-CHANGE CORPORATION
a Nevada corporation
By: /s/ Haviland Wright
-------------------------------------
Haviland Wright, CEO
SURREY VACATION RESORTS, INC.,
a Missouri corporation
By: /s/ C.J. Perme
-------------------------------------
C.J. Perme
President and CEO
THE SURREY STOCKHOLDER:
By: /s/ C.J. Perme
-------------------------------------
C.J. Perme
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