SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement"), dated June 25, 1998,
is between SPH Equities, Inc. located at 000 Xxxx Xxxx, Xxxxxxxxx, XX
("Seller"), and EYEQ Networking, Inc., a Delaware corporation (hereinafter
"EYEQ" or "Buyer"). Buyer desires to acquire from Seller, and Seller is willing
to transfer to Buyer, upon the terms and conditions of this Agreement, that
aggregate number of shares of common stock set forth under Seller's name on the
signature page hereof, that Seller owns (the "JET Shares") in Jet Aviation
Trading, Inc. a Florida corporation.
1 Transfer by Seller. In exchange for the consideration set forth
below, at Closing (as defined in paragraph 3), Seller will transfer and convey
the JET Shares to Buyer, free and clear of all liabilities, security interests,
liens, pledges, claims and encumbrances.
2 Acquisition Price. The aggregate acquisition price for the JET Shares
shall be one share of Common Stock $.001 par value per share, of Buyer, issued
by the Buyer, for every one and two-thirds JET Shares transferred hereunder (the
"EYEQ Shares"). The acquisition price will be equitably adjusted for any stock
splits, reverse stock splits, stock combinations or recapitalizations of Buyer
which occur after June 22, 1998 and prior to closing as set forth in Section 3
hereof.
3 Closing.
3.1 Time and Place. The closing for the exchange (the
"Closing") will be held at the offices of Klehr, Harrison, Xxxxxx, Xxxxxxxxx &
Xxxxxx LLP ("KHHBE"), located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000-0000, on July 31, 1998 (the "Closing Date") or as soon as practicable
after the satisfaction of the condition set forth in Section 8.1 hereof,
provided that, if the Closing has not been completed by August 31, 1998, this
Agreement will terminate and neither party will have any further obligations to
the other except for any breach of its obligations hereunder.
3.2 Delivery by Seller. At the Closing, Seller will deliver to
Buyer certificates representing the JET Shares, duly endorsed for transfer.
3.3 Delivery by Buyer. At the Closing, Buyer shall deliver to
Seller a certificate representing the EYEQ Shares.
4 Representations and Warranties by Seller. Seller represents and
warrants to Buyer as follows:
4.1 Ownership and Power to Transfer. Seller is the lawful
owner, of record and beneficially, of the JET Shares free and clear of all
liabilities, security interests, liens, pledges, claims and encumbrances. Upon
delivery of certificates representing the JET Shares as contemplated by this
Agreement, Buyer will acquire good title to the JET Shares, free and clear of
any liability, security interest, lien, pledge, claim or encumbrance of any
nature whatsoever other than any restrictions on the transfer of the JET Shares
required by the Securities Act of 1933, as amended (the "Securities Act").
4.2 Validity of the Agreement. This Agreement constitutes the
legal, valid and binding agreement of Seller enforceable against Seller in
accordance with its terms.
4.3 Absence of Litigation. There is no litigation, proceeding,
claim or investigation pending or threatened, against or affecting the JET
Shares, whether or not fully covered by insurance, nor is there any valid basis
for any such litigation, proceeding, claim or investigation.
4.4 No Violation. Neither the execution or delivery of this
Agreement by Seller, nor the performance by Seller of any of the transactions
contemplated hereby (i) conflicts with, or constitutes a breach or default under
(a) any applicable judgment, order, writ, injunction or decree of any court or
(b) any applicable law or any applicable rule or regulation of any
administrative agency or governmental or regulatory authority or (ii) violates,
conflicts with, or constitutes a default (or an event or condition that, with
notice or lapse of time or both, would constitute a default) under, any
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which Seller is a party or may be bound.
4.5 Additional Representations and Warranties. The Seller
represents and warrants as follows, which representations and warranties shall
be true and correct as of the date when made and as of the Closing Date as
though made at that time:
(a) Seller is acquiring the EYEQ Shares for its own
account for investment purposes only and not with a view to the resale or
distribution thereof.
(b) Seller has not and will not, directly or indirectly,
offer, sell, transfer, assign, exchange or otherwise dispose of all or any part
of the EYEQ Shares, except in accordance with the provisions of this Agreement
and the Securities Act.
(c) Seller is acquiring the EYEQ Shares without having
relied upon any offering literature or prospectus. Seller has such knowledge and
experience in financial, business and tax matters that Seller is capable of
evaluating the merits and risks relating to Seller's investment in the EYEQ
Shares and making an investment decision with respect to the common stock of
Buyer.
(d) To the full satisfaction of Seller, Seller has been
given the opportunity to obtain information and documents relating to Buyer and
to ask questions of and receive answers from representatives of Buyer concerning
Buyer and the investment in the EYEQ Shares.
(e) Seller has adequately analyzed the risks of an
investment in the EYEQ Shares and has determined that the EYEQ Shares are a
suitable investment for Seller and that Seller is able at this time, and in the
foreseeable future, to bear the economic risk of a total loss of its investment
in Buyer.
(f) Seller is aware that there are substantial risks
attendant to an investment in the EYEQ Shares.
(g) Seller is an "accredited investor" as defined in Rule
501 of Regulation D of the Securities Act ("Regulation D") as presently in
effect and is purchasing the EYEQ Shares for its own account and the Seller, if
an entity, has not been formed for the specific purpose of acquiring the EYEQ
Shares.
(h) Seller understands that no United States federal or
state agency or any other government or governmental agency has passed upon or
made any recommendation or endorsement of the EYEQ Shares.
(i) Seller understands that the EYEQ Shares are being
offered and sold to it in reliance upon specific exemptions from the
registration requirements of United States federal and state securities laws and
that Buyer is relying upon the truth and accuracy of, and Seller's compliance
with, the representations, warranties, and agreements, of Seller set forth
herein in order to determine the availability of such exemptions and the
eligibility of Seller to acquire such EYEQ Shares.
(j) Seller is a resident of the jurisdiction set forth
under Seller's name on the signature page hereof.
5 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows, which representations and warranties shall be
true and correct as of the date when made and as of the Closing Date as though
made at that time:
5.1 Fees or Commissions. Buyer has not made any agreement or
taken any action which might cause anyone to become entitled to a broker's fee
or commission as a result of the transactions contemplated hereunder.
5.2 Validity of the Agreement. This Agreement constitutes the
legal, valid and binding agreement of Buyer enforceable against Buyer in
accordance with its terms.
5.3 Absence of Litigation. There is no litigation, proceeding,
claim or investigation pending or threatened, against or affecting the EYEQ
Shares, whether or not fully covered by insurance, nor is there any valid basis
for any such litigation, proceeding, claim or investigation.
5.4 No Violation. Neither the execution or delivery of this
Agreement by Buyer, nor the performance by Buyer of any of the transactions
contemplated hereby (i) conflicts with, or constitutes a breach or default under
(a) any applicable judgment, order, writ, injunction or decree of any court or
(b) any applicable law or any applicable rule or regulation of any
administrative agency or governmental or regulatory authority or (ii) violates,
conflicts with, or constitutes a default (or an event or condition that, with
notice or lapse of time or both, would constitute a default) under, any
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which Buyer is a party or may be bound.
5.5 No General Solicitation. Buyer has not conducted any
"general solicitations" as such term is defined in Rule 502(c) of Regulation D,
with respect to the EYEQ Shares being offered hereby.
6 Indemnity.
6.1 Seller shall indemnify Buyer, and hold Buyer harmless from
and against, any loss, liability, claim, obligation, damage or deficiency,
including interest, penalties and reasonable attorneys fees and expenses
(collectively "Damages") arising from any misrepresentation or breach of
warranty made by Seller in this Agreement or any nonfulfillment by Seller of any
obligation on the part of Seller set forth in this Agreement.
6.2 Buyer shall indemnify Seller and hold Seller harmless from
and against any Damages arising from any misrepresentation or breach of warranty
made by Buyer in this Agreement or any nonfulfillment by Buyer of any obligation
on the part of Buyer set forth in this Agreement.
6.3 Any party which may be entitled to indemnification under
this Agreement shall give prompt notice to the indemnifying party. The
indemnifying party shall have the right, at its expense, to assume and direct
the investigation and defense of any claim, action or proceeding, including the
selection of counsel, provided any counsel selected by the indemnifying party is
reasonably satisfactory to the indemnified party. No settlement for monetary
payment which is the subject of indemnity under this Agreement shall be made
without the consent of the indemnifying party and the indemnifying party shall
have the right to direct proceedings with respect to such settlement. All
amounts to which an indemnified party may be entitled hereunder shall be
advanced by the indemnifying party as such amounts are incurred.
6.4 Remedies Cumulative. Except as expressly provided in this
Agreement, the remedies provided herein shall be cumulative and shall not
preclude assertion by any party hereto of any other rights or the seeking of any
other remedies against any other party hereto.
7 Miscellaneous Terms and Conditions.
7.1 Other Transactions. Prior to Closing, Seller shall not,
and shall not permit any party on Seller's behalf to, directly or indirectly,
encourage, solicit, initiate or participate in discussions or negotiations with,
or provide any information or assistance to, any corporation, partnership,
person or other entity or group (other than Buyer and Buyer's representatives)
concerning any merger, sale of securities, sale of substantial assets or similar
transactions involving Jet Aviation Trading, Inc. or the Seller.
7.2 Confidentiality. Seller and Buyer shall hold, and shall
cause their respective consultants and advisors to hold, in strict confidence,
unless compelled to disclose by judicial or administrative process or by other
requirements of law, all documents and information concerning the other parties
furnished to it by any other party or its representatives in connection with the
transactions contemplated by this Agreement (except to the extent that such
information shall be shown to have been (a) previously known by the party to
which it was furnished, (b) in the public domain through no fault of such party
or (c) later lawfully acquired from other sources by the party to which it was
furnished), and each party shall not release or disclose such information to any
other person, except its auditors, attorneys, financial advisors, bankers and
other consultants and advisors in connection with the transactions contemplated
by this Agreement. Each party shall be deemed to have satisfied its obligation
to hold confidential information concerning or supplied by the other party if it
exercises the same care as it takes to preserve confidentiality for its own
similar information.
7.3 Execution of Counterparts. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
7.4 Entire Agreement. This Agreement represents the entire
understanding of the parties hereto with reference to the transactions
contemplated hereby and supersedes any and all other oral or written agreements
and understandings heretofore made and shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns.
7.5 Governing Law. This Agreement will be governed by the laws
of the State of Delaware in the United States.
7.6 Notices. All notices and other communications between the
parties shall be in writing and shall be deemed to have been given if mailed
first-class, postage prepaid to the address set forth below or such other
address as Seller or Buyer may give the other for such purpose:
If to Buyer: EYEQ Networking, Inc.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
If to Seller: The address set forth on
the signature page hereto.
With a copy to:
Xxxxxxx X. Xxxxxx, Esquire
Klehr, Harrison, Xxxxxx,
Branzburg & Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
7.7 Further Assurances. Prior to and following the Closing, at
the request of either party, the other party or parties shall deliver any
further instruments of transfer and take all reasonable actions as may be
necessary or appropriate to (i) effectuate the conveyance of the JET Shares and
the EYEQ Shares as contemplated hereby and (ii) effectuate any of the other
transactions contemplated by this Agreement.
7.8 Specific Performance. Seller and Buyer acknowledge that, in view of the
uIniqueness of the Company's business, Buyer would not have an adequate remedy
at law for money damages in the event that this Agreement were not performed in
accordance with its terms, and therefore agree that Buyer shall be entitled to
specific enforcement of the terms hereof in addition to any other remedy to
which it may be entitled, at law or in equity.
7.9 Participation of KHHBE. The Seller acknowledges that KHHBE
has represented and continues to represent EYEQ with respect to the transactions
contemplated by this Agreement, that KHHBE has not rendered any advice to Seller
with respect to same, and that Seller has had the opportunity to seek advice of
counsel with respect to the risks and merits of the transactions contemplated by
this Agreement including, but not limited to, any federal or state tax
consequences associated with the exchange of JET Shares for EYEQ Shares.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the date first written above.
SELLER: BUYER:
SPH Equities, Inc. EYEQ NETWORKING, INC.
/s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------ ------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Address:
000 Xxxx Xxxx
Xxxxxxxxx, XX
60,000
Shares of Jet Aviation Trading, Inc.
Common Stock
