EXCHANGE AGREEMENT
Between
OXFORD KNIGHT INTERNATIONAL, INC.,
AND
XXXXXX.XX, INC.
Dated April 6, 2002
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS, AND XXXXXX.XX, INC.
1.01 Organization 1
1.02 Capitalization 1
1.03 Subsidiaries and Predecessor Corporations 1
1.04 Information 2
1.05 Options and Warrants 2
1.06 Absence of Certain Changes or Events 2
1.07 Title and Related Matters 3
1.08 Litigation and Proceedings 3
1.09 Contracts 3
1.10 Material Contract Defaults 4
1.11 No Conflict With Other Instruments 4
1.12 Governmental Authorizations 4
1.13 Compliance With Laws and Regulations 4
1.14 Approval of Agreement 4
1.15 Material Transactions or Affiliations 4
1.16 Labor Relations 5
1.17 Urbana Schedules 5
1.18 Bank Accounts; Power of Attorney 6
1.19 Valid Obligation 6
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OXFORD KNIGHT
INTERNATIONAL, INC.
2.01 Organization 6
2.02 Capitalization 6
2.03 Subsidiaries and Predecessor Corporations 6
2.04 Information 7
2.05 No Conflict With Other Instruments 9
2.06 Governmental Authorizations 9
2.07 Compliance With Laws and Regulations 9
2.08 Approval of Agreement 9
2.09 Labor Relations 10
2.10 Oxford Schedules 10
2.11 Valid Obligation 11
ARTICLE III PLAN OF EXCHANGE
3.01 The Exchange 11
3.02 Anti-Dilution 11
3.03 Closing 11
3.04 Closing Events 11
3.05 Termination 12
ARTICLE IV SPECIAL COVENANTS
4.01 Access to Properties and Records 13
4.02 Delivery of Books and Records 13
4.03 Third Party Consents and Certificates 13
4.04 Designation of Directors and Officers 14
4.05 Exclusive Dealing Rights 14
4.06 Actions Prior to Closing 14
4.07 Indemnification 16
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF OXFORD KNIGHT
5.01 Accuracy of Representations and Performance of
Covenants 16
5.02 Officer's Certificates 16
5.03 No Material Adverse Change 16
5.04 Good Standing 16
5.05 Approval by Urbana Directors 16
5.06 No Governmental Prohibitions 16
5.07 Consents 17
5.08 Other Items 17
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF URBANA
6.01 Accuracy of Representations and Performance of
Covenants 17
6.02 No Governmental Prohibition 17
6.03 Consents 18
6.04 Other Items 18
ARTICLE VII MISCELLANEOUS
7.01 Brokers 18
7.02 Governing Law 18
7.03 Notices 18
7.04 Attorney's Fees 18
7.05 Confidentiality 18
7.06 Public Announcements and Filings 19
7.07 Schedules; Knowledge 19
7.08 Third Party Beneficiaries 19
7.09 Expenses 19
7.10 Entire Agreement 19
7.11 Survival; Termination 19
7.12 Counterparts 19
7.13 Amendment or Waiver 19
7.14 Best Efforts 19
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this day of April 2002 by and between OXFORD KNIGHT
INTERNATIONAL, INC. a Texas corporation (hereinafter referred to as ("Oxford"),
and XXXXXX.XX, INC., a Nevada corporation (hereinafter referred to as "Urbana"),
upon the following premises:
Premises
WHEREAS, Oxford is a publicly held corporation organized under the laws of
the State of Texas;
WHEREAS, Urbana is a publicly-traded corporation organized under the laws
of the State of Nevada;
WHEREAS, management of Oxford has determined that it is in the best
interest of the parties that Oxford acquire control of Urbana through the
issuance of preferred stock in exchange for oxford shares of common stock; and
WHEREAS, Oxford and Urbana desire to set forth the terms of the Exchange,
which is intended to constitute a tax-free reorganization pursuant to the
provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF URBANA
As an inducement to, and to obtain the reliance of Oxford, except as set
forth on the Urbana Schedules (as hereinafter defined), Urbana represents and
warrants as follows:
Section 1.01 Organization. Urbana is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the Urbana
Schedules are complete and correct copies of the articles of incorporation, and
bylaws of Urbana as in effect on the date hereof. The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby will not, violate any provision of Urbana's Articles of Incorporation or
Bylaws. Urbana has taken all actions required by law, its articles of
incorporation, or otherwise to authorize the execution and delivery of this
Agreement. Urbana has full power, authority, and legal right and has taken all
action required by law, its articles of incorporation, and otherwise to
consummate the transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of Urbana
consists of 80,000,000 shares of common stock, $.001 par value, of which
80,000,000 shares are currently issued and outstanding. In addition, Urbana has
authorized 10,000,000 shares of preferred stock, $.001 par value, of which 0
shares are currently issued and outstanding. All issued and outstanding shares
are legally issued, fully paid, and non-assessable and not issued in violation
of the preemptive or other rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. Urbana does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 1.03. For purposes hereinafter, the term "Urbana" also
includes those subsidiaries, if any, set forth on Schedule 1.03.
Section 1.04 Information. The information concerning Urbana set forth in
this Agreement and in the Urbana Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading. In addition,
Urbana has fully disclosed in writing to Oxford (through this Agreement or the
Urbana Schedules) all information relating to matters involving Urbana or its
assets or its present or past operations or activities which (i) indicated or
may indicate, in the aggregate, the existence of a greater than $25,000
liability or diminution in value, (ii) have led or may lead to a competitive
disadvantage on the part of Urbana or (iii) either alone or in aggregation with
other information covered by this Section, otherwise have led or may lead to a
material adverse effect on the transactions contemplated herein or on Urbana,
its assets, or its operations or activities as presently conducted or as
contemplated to be conducted after the Closing Date, including, but not limited
to, information relating to governmental, employee, environmental, litigation
and securities matters and transactions with affiliates.
Section 1.05 Options or Warrants. There are ___________ existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued Urbana common stock.
Section 1.06 Absence of Certain Changes or Events. Except as set forth in
this Agreement or the Urbana Schedules, since December 31, 2001:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets, or condition of Urbana or
(ii) any damage, destruction, or loss to Urbana (whether or not covered
by insurance) materially and adversely affecting the business,
operations, properties, assets, or condition of Urbana;
(b) Urbana has not (i) amended its articles of incorporation
or bylaws; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders or purchased or redeemed, or agreed to
purchase or redeem, any of its capital stock; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of
business or material considering the business of Urbana; (iv) made any
material change in its method of management, operation or accounting;
(v) entered into any other material transaction other than sales in the
ordinary course of its business; (vi) made any accrual or arrangement
for payment of bonuses or special compensation of any kind or any
severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its
salaried employees whose monthly compensation exceeds $1,000; or (viii)
made any increase in any profit sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors,
or employees;
(c) Urbana has not (i) borrowed or agreed to borrow any funds
or incurred, or become subject to, any material obligation or liability
(absolute or contingent) except as disclosed herein and except
liabilities incurred in the ordinary course of business; (ii) paid or
agreed to pay any material obligations or liability (absolute or
contingent) other than current liabilities reflected in or shown on the
most recent Urbana balance sheet, and current liabilities incurred
since that date in the ordinary course of business and professional and
other fees and expenses in connection with the preparation of this
Agreement and the consummation of the transactions contemplated hereby;
(iii) sold or transferred, or agreed to sell or transfer, any of its
assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, in the aggregate have a value of
less than $1,000), or canceled, or agreed to cancel, any debts or
claims (except debts or claims which in the aggregate are of a value of
less than $1,000); (iv) made or permitted any amendment or termination
of any contract, agreement, or license to which it is a party if such
amendment or termination is material, considering the business of
Urbana; or (v) issued, delivered, or agreed to issue or deliver any
stock, bonds or other corporate securities including debentures
(whether authorized and unissued or held as treasury stock); and
(d) to the best knowledge of Urbana, Urbana has not become
subject to any law or regulation which materially and adversely
affects, or in the future may adversely affect the business,
operations, properties, assets, or condition of Urbana.
Section 1.07 Title and Related Matters. Urbana has good and marketable
title to all of its properties, inventory, interests in properties, and assets,
real and personal, which are reflected in the most recent Urbana balance sheet
or acquired after that date (except properties, inventory, interests in
properties, and assets sold or otherwise disposed of since such date in the
ordinary course of business) free and clear of all liens, pledges, charges, or
encumbrances except (a) statutory liens or claims not yet delinquent; (b) such
imperfections of title and easements as do not and will not materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties; and (c) as described in the Urbana Schedules.
Except as set forth in the Urbana Schedules, Urbana owns, free and clear of any
liens, claims, encumbrances, royalty interests, or other restrictions or
limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying technology and data, and all procedures,
techniques, marketing plans, business plans, methods of management, or other
information utilized in connection with Urbana's business. Except as set forth
in the Urbana Schedules, no third party has any right to, and Urbana has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
propriety techniques, trademarks, service marks, trade names, or copyrights
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse effect on the
business, operations, financial condition, income, or business prospects of
Urbana or any material portion of its properties, assets, or rights.
Section 1.08 Litigation and Proceedings. Except as set forth in the
Urbana Schedules, there are no actions, suits, proceedings, or investigations
pending or, to the knowledge of Urbana after reasonable investigation,
threatened by or against Urbana or affecting Urbana or its properties, at law or
in equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. Urbana does not have
any knowledge of any material default on its part with respect to any judgment,
order, injunction, decree, award, rule, or regulation of any court, arbitrator,
or governmental agency or instrumentality or of any circumstances which, after
reasonable investigation, would result in the discovery of such a default.
Section 1.09 Contracts.
---------
(a) Except as included or described in the Urbana Schedules,
there are no "material" contracts, agreements, franchises, license
agreements, debt instruments or other commitments to which Urbana is a
party or by which it or any of its assets, products, technology, or
properties are bound other than those incurred in the ordinary course
of business (as used in this Agreement, a "material" contract,
agreement, franchise, license agreement, debt instrument or commitment
is one which (i) will remain in effect for more than six (6) months
after the date of this Agreement or (ii) involves aggregate obligations
of at least fifty thousand dollars ($50,000));
(b) All contracts, agreements, franchises, license agreements,
and other commitments to which Urbana is a party or by which its
properties are bound and which are material to the operations of Urbana
taken as a whole are valid and enforceable by Urbana in all respects,
except as limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally;
(c) Urbana is not a party to or bound by, and the properties
of Urbana are not subject to any contract, agreement, other commitment
or instrument; any charter or other corporate restriction; or any
judgment, order, writ, injunction, decree, or award which materially
and adversely affects, the business operations, properties, assets, or
condition of Urbana; and
(d) Except as included or described in the Urbana Schedules or
reflected in the most recent Urbana balance sheet, Urbana is not a
party to any oral or written (i) contract for the employment of any
officer or employee which is not terminable on 30 days, or less notice;
(ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, (iii) agreement,
contract, or indenture relating to the borrowing of money, (iv)
guaranty of any obligation, other than one on which Urbana is a primary
obligor, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations
which, in the aggregate do not exceed more than one year or providing
for payments in excess of $25,000 in the aggregate; (vi) collective
bargaining agreement; or (vii) agreement with any present or former
officer or director of Urbana.
Section 1.10 Material Contract Defaults. Urbana is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Urbana and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Urbana has not taken adequate steps to prevent
such a default from occurring.
Section 1.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Urbana is a party or to which any of its
properties or operations are subject.
Section 1.12 Governmental Authorizations. Except as set forth in the
Urbana Schedules, Urbana has all licenses, franchises, permits, and other
governmental authorizations that are legally required to enable it to conduct
its business in all material respects as conducted on the date hereof. Except
for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Urbana of this
Agreement and the consummation by Urbana of the transactions contemplated
hereby.
Section 1.13 Compliance With Laws and Regulations. Except as set forth
in the Urbana Schedules, to the best of its knowledge Urbana has complied with
all applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations, properties,
assets, or condition of Urbana or except to the extent that noncompliance would
not result in the occurrence of any material liability for Urbana.
Section 1.14 Approval of Agreement. The board of directors of Urbana
has authorized the execution and delivery of this Agreement by Urbana and has
approved this Agreement and the transactions contemplated hereby.
Section 1.15 Material Transactions or Affiliations. Set forth in the
Urbana Schedules is a description of every contract, agreement, or arrangement
between Urbana and any predecessor and any person who was at the time of such
contract, agreement, or arrangement an officer, director, or person owning of
record, or known by Urbana to own beneficially, 5% or more of the issued and
outstanding common stock of Urbana and which is to be performed in whole or in
part after the date hereof or which was entered into not more than three years
prior to the date hereof. Except as disclosed in the Urbana Schedules or
otherwise disclosed herein, no officer, director, or 5% shareholder of Urbana
has, or has had since inception of Urbana, any known interest, direct or
indirect, in any transaction with Urbana which was material to the business of
Urbana. There are no commitments by Urbana, whether written or oral, to lend any
funds, or to borrow any money from, or enter into any other transaction with,
any such affiliated person.
Section 1.16 Labor Relations. Urbana has not had work stoppage
resulting from labor problems. To the knowledge of Urbana, no union or other
collective bargaining organization is organizing or attempting to organize any
employee of Urbana.
Section 1.17 Urbana Schedules. Urbana has delivered to Oxford the
following schedules, which are collectively referred to as the "Urbana
Schedules" and which consist of separate schedules dated as of the date of
execution of this Agreement, all certified by the chief executive officer of
Urbana as complete, true, and correct as of the date of this Agreement in all
material respects:
(a) a schedule containing complete and correct copies of the articles of
incorporation, and bylaws of Urbana in effect as of the date of this Agreement;
(b) a Schedule 1.17(b) containing a list indicating the name and address of
each shareholder of Urbana together with the number of shares owned by him, her
or it;
(c) a schedule containing a description of all real property owned by
Urbana, together with a description of every mortgage, deed of trust, pledge,
lien, agreement, encumbrance, claim, or equity interest of any nature whatsoever
in such real property;
(d) copies of all licenses, permits, and other governmental authorizations
(or requests or applications therefor) pursuant to which Urbana carries on or
proposes to carry on its business (except those which, in the aggregate, are
immaterial to the present or proposed business of Urbana);
(e) a schedule listing the accounts receivable and notes and other
obligations receivable of Urbana as of December 31, 2001, or thereafter other
than in the ordinary course of business of Urbana, indicating the debtor and
amount, and classifying the accounts to show in reasonable detail the length of
time, if any, overdue, and stating the nature and amount of any refunds, set
offs, reimbursements, discounts, or other adjustments, which are in the
aggregate material and due to or claimed by such debtor;
(f) a schedule listing the accounts payable and notes and other obligations
payable of Urbana as of December 31, 2001, or that arose thereafter other than
in the ordinary course of the business of Urbana, indicating the creditor and
amount, classifying the accounts to show in reasonable detail the length of
time, if any, overdue, and stating the nature and amount of any refunds, set
offs, reimbursements, discounts, or other adjustments, which in the aggregate
are material and due to or claimed by Urbana respecting such obligations;
(g) a schedule setting forth a description of any material adverse change
in the business, operations, property, inventory, assets, or condition of Urbana
since December 31, 2001, required to be provided pursuant to section 1.07
hereof; and
(h) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Urbana Schedules
by Sections 1.01 through 1.17.
Urbana shall cause the Urbana Schedules and the instruments and data
delivered to Oxford hereunder to be promptly updated after the date hereof up to
and including the Closing Date.
It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Urbana. Urbana
shall have until April 30, 2002 to provide such schedules. If Urbana cannot or
fails to do so, or if Oxford acting reasonably finds any such schedules or
updates provided after the date hereof to be unacceptable according to the
criteria set forth below, Oxford may terminate this Agreement by giving written
notice to Urbana within five (5) days after the schedules or updates were due to
be produced or were provided. For purposes of the foregoing, Oxford may consider
a disclosure in the Urbana Schedules to be "unacceptable" only if that item
would have a material adverse impact on the financial condition of Urbana.
Section 1.20 Bank Accounts; Power of Attorney. Set forth in Schedule
1.20 is a true and complete list of (a) all accounts with banks, money market
mutual funds or securities or other financial institutions maintained by Urbana
within the past twelve (12) months, the account numbers thereof, and all persons
authorized to sign or act on behalf of Urbana, (b) all safe deposit boxes and
other similar custodial arrangements maintained by Urbana within the past twelve
(12) months, and (c) the names of all persons holding powers of attorney from
Urbana or who are otherwise authorized to act on behalf of Urbana with respect
to any matter, other than its officers and directors, and a summary of the terms
of such powers or authorizations.
Section 1.21 Valid Obligation. This Agreement and all agreements and
other documents executed by Urbana in connection herewith constitute the valid
and binding obligation of Urbana, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF OXFORD
As an inducement to, and to obtain the reliance of Urbana and Urbana,
except as set forth in the Oxford Schedules (as hereinafter defined), Oxford
represents and warrants as follows:
Section 2.01 Organization. Oxford is a corporation duly organized and
validly existing under the laws of the State of Texas and has the corporate
power and is duly authorized, qualified, franchised, and licensed under all
applicable laws, regulations, ordinances, and orders of public authorities to
own all of its properties and assets, to carry on its business in all material
respects as it is now being conducted, and except where failure to be so
qualified would not have a material adverse effect on its business, there is no
jurisdiction in which it is not qualified in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. Included in the Oxford Schedules are complete and correct copies
of the certificate of incorporation and bylaws of Oxford as in effect on the
date hereof. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of Oxford's certificate of incorporation or bylaws. Oxford has taken
all action required by law, its certificate of incorporation, its bylaws, or
otherwise to authorize the execution and delivery of this Agreement, and Oxford
has full power, authority, and legal right and has taken all action required by
law, its certificate of incorporation, bylaws, or otherwise to consummate the
transactions herein contemplated.
Section 2.02 Capitalization. Oxford's authorized capitalization consists of
100,000,000 shares of common stock, par value $.001 of which 43,268,932 shares
are issued and outstanding (the "Oxford Shares"). All issued and outstanding
shares are legally issued, fully paid, and non-assessable and not issued in
violation of the preemptive or other rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. Oxford does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation, except as
disclosed in Schedule 2.03. For purposes hereinafter, the term "Oxford" also
includes those subsidiaries, if any, set forth on Schedule 2.03.
Section 2.04 Information. The information concerning Oxford set forth in
this Agreement and the Oxford Schedules is complete and accurate in all material
respects and does not contain any untrue statements of a material fact or omit
to state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 2.05 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Oxford is a party or to which any of its assets or operations are subject.
Section 2.06 Governmental Authorizations. Oxford has all licenses,
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Oxford of this Agreement and the consummation by Oxford of the
transactions contemplated hereby.
Section 2.07 Compliance With Laws and Regulations. To the best of its
knowledge, Oxford has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Oxford or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 2.08 Approval of Agreement. The board of directors of Oxford has
authorized the execution and delivery of this Agreement by Oxford and has
approved this Agreement and the transactions contemplated hereby.
Section 2.09 Labor Relations. Oxford has not had work stoppage resulting
from labor problems. To the knowledge of Oxford, no union or other collective
bargaining organization is organizing or attempting to organize any employee of
Oxford.
Section 2.10 Oxford Schedules. Oxford has delivered to Urbana the following
schedules which are collectively referred to as the "Oxford Schedules" and which
consist of separate schedules, which are dated the date of this Agreement, all
certified by the chief executive officer of Oxford to be complete, true, and
accurate in all material respects as of the date of this Agreement:
(a) a schedule containing complete and accurate copies of the
certificate of incorporation and bylaws of Oxford as in effect as of the
date of this Agreement;
(b) a Schedule 2.10(b) containing a list indicating the name and
address of each shareholder of Oxford together with the number of shares
owned by him, her or it; and
(c) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Oxford
Schedules by Sections 2.01 through 2.10.
Oxford shall cause the Oxford Schedules and the instruments and data
delivered to Urbana hereunder to be promptly updated after the date hereof up to
and including the Closing Date.
It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Oxford. Oxford
shall have until April 30, 2002 to provide such schedules. If Oxford cannot or
fails to do so, or if Urbana acting reasonably finds any such schedules or
updates provided after the date hereof to be unacceptable according to the
criteria set forth below, Urbana may terminate this Agreement by giving written
notice to Oxford within five (5) days after the schedules or updates were due to
be produced or were provided. For purposes of the foregoing, Urbana may consider
a disclosure in the Oxford Schedules to be "unacceptable" only if that item
would have a material adverse impact on the financial statements of Oxford.
Section 2.11 Valid Obligation. This Agreement and all agreements and
other documents executed by Oxford in connection herewith constitute the valid
and binding obligation of Oxford, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
Urbana shall issue, transfer and deliver, free and clear of all liens, pledges,
encumbrances, charges, restrictions or known claims of any kind, nature, or
description, 1,000,000 shares of preferred stock of Urbana as set forth on
Schedule 1.19(c) attached hereto and with those rights and preferences as
attached in the Certificate of Designation and Preferences provided hereto under
Exhibit A. In exchange for the issuance of such preferred stock by Urbana,
Oxford shall issue Urbana 10,000,000 shares of common stock of Oxford. At the
Closing, Urbana shall, on surrender of its certificate or certificates
representing such preferred shares of Urbana to Oxford or its registrar or
transfer agent, be entitled to receive a certificate or certificates evidencing
10,000,000 shares of Oxford.
Section 3.02 Anti-Dilution. The number of shares of Oxford common stock
issuable upon exchange pursuant to Section 3.01 shall be appropriately adjusted
to take into account any other stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the Oxford common stock which may occur
(i) between the date of the execution of this Agreement and the Closing Date,
and (ii) between the date of the execution of this Agreement and the release
date, as to the Additional Shares.
Section 3.03 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than April 30, 2002, subject to
the right of Oxford to extend such Closing Date by up to an additional thirty
(30) days. Such Closing shall take place at a mutually agreeable time and place.
Section 3.04 Closing Events. At the Closing, Urbana shall execute,
acknowledge, and deliver (or shall ensure to be executed, acknowledged, and
delivered) any and all certificates, opinions, financial statements, schedules,
agreements, resolutions, rulings or other instruments required by this Agreement
to be so delivered at or prior to the Closing, together with such other items as
may be reasonably requested by Oxford hereto and its legal counsel in order to
effectuate or evidence the transactions contemplated hereby. Among other things,
Urbana shall provide Oxford an opinion of counsel acceptable to Oxford as to
such matters as Oxford may reasonably request, which shall include, but not be
limited to, a statement, to the effect that (i) to such counsel's best
knowledge, after reasonable investigation, from inception until the Closing
Date, Urbana has complied with all applicable statutes and regulations of any
federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Urbana or
except to the extent that noncompliance would not result in the occurrence of
any material liability (such compliance including, but not being limited to, the
filing of all reports to date with federal and state securities authorities).
Section 3.05 Termination.
(a) This Agreement may be terminated by the board of directors of
Oxford at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or proceeding
before any court or any governmental body which shall seek to
restrain, prohibit, or invalidate the transactions contemplated by
this Agreement and which, in the judgment of such board of directors,
made in good faith and based upon the advice of its legal counsel,
makes it inadvisable to proceed with the Exchange; or
(ii) any of the transactions contemplated hereby are disapproved
by any regulatory authority whose approval is required to consummate
such transactions (which does not include the Securities and Exchange
Commission) or in the judgment of such board of directors, made in
good faith and based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will be
obtained only on a condition or conditions which would be unduly
burdensome, making it inadvisable to proceed with the Exchange.
In the event of termination pursuant to this paragraph (a) of Section
3.05, no obligation, right or liability shall arise hereunder, and each
party shall bear its own expenses incurred by it in connection with the
negotiation, drafting, and execution of this Agreement and the
transactions herein contemplated.
(b) This Agreement may be terminated by the board of directors of
Oxford at any time prior to the Closing Date if:
(i) there shall have been any change after the date of the
latest balance sheet of Urbana in the assets, properties,
business, or financial condition of Urbana, which could have a
materially adverse effect on the financial statements of Urbana
listed in Section 1.04(a) taken as a whole, except any changes
disclosed in the Urbana Schedules;
(ii) the board of directors of Oxford determines in good
faith that one or more of Oxford's conditions to Closing has not
occurred, through no fault of Oxford.
(iii) Oxford takes the termination action specified in
Section 1.17 as a result of Urbana Schedules or updates thereto
which Oxford finds unacceptable;
(iv) on or before April 30, 2002, Oxford notifies Urbana
that Oxford's investigation pursuant to Section 4.01 below has
uncovered information which it finds unacceptable by the same
criteria set forth in Section 1.17; or
(v) Urbana shall fail to comply in any material respect with
any of its covenants or agreements contained in this Agreement or
if any of the representations or warranties of Urbana contained
herein shall be inaccurate in any material respect, where such
noncompliance or inaccuracy has not been cured within ten (10)
days after written notice thereof.
If this Agreement is terminated pursuant to this paragraph (b) of
Section 3.05, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder, except
that Urbana shall bear its own costs as well as the reasonable costs of
Oxford in connection with the negotiation, preparation, and execution
of this Agreement and qualifying the offer and sale of securities to be
issued in the Exchange under the registration requirements, or
exemption from the registration requirements, of state and federal
securities laws.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Oxford and Urbana will
each afford to the officers and authorized representatives of the other full
access to the properties, books and records of Oxford or Urbana, as the case may
be, in order that each may have a full opportunity to make such reasonable
investigation as it shall desire to make of the affairs of the other, and each
will furnish the other with such additional financial and operating data and
other information as to the business and properties of Oxford or Urbana, as the
case may be, as the other shall from time to time reasonably request. Without
limiting the foregoing, as soon as practicable after the end of each fiscal
quarter (and in any event through the last fiscal quarter prior to the Closing
Date), each party shall provide the other with quarterly internally prepared and
unaudited financial statements.
Section 4.02 Delivery of Books and Records. At the Closing, Urbana shall
deliver to Oxford the originals of the corporate minute books, books of account,
contracts, records, and all other books or documents of Urbana now in the
possession of Urbana or its representatives.
Section 4.03 Third Party Consents and Certificates. Oxford and Urbana agree
to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein contemplated.
Section 4.04 Designation of Directors and Officers. On or before the
Closing Date, Urbana shall increase its board of directors to four (4) persons.
Xxxx Syracuse and Xxxxx Xxxxxxx shall be designated as additional board members
at the Closing. The existing officers of Oxford shall submit their resignation
and Xxxx Syracuse shall be elected Chief Executive Officer of Urbana and Xxxxx
Xxxxxxx shall be elected Chief Financial Officer.
Section 4.05 The Exclusive Dealing Rights. Until 5:00 P.M. Eastern Daylight
Time on April 30, 2002.
(a) In recognition of the substantial time and effort which
Oxford has spent and will continue to spend in investigating Urbana and
its business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither Urbana, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Oxford and its
directors, officers, employees, representatives and agents) concerning
any merger, sale of substantial assets, sale of shares of capital
stock, (including without limitation, any public or private offering of
the common stock of Urbana) or similar transactions involving Urbana
(all such transactions being referred to as "Urbana Acquisition
Transactions"). If Urbana receives any proposal with respect to a
Urbana Acquisition Transaction, it will immediately communicate to
Oxford the fact that it has received such proposal and the principal
terms thereof.
(b) In recognition of the substantial time and effort which Urbana has
spent and will continue to spend in investigating Oxford and its
business and in addressing the matters related to the transactions
contemplated herein, each of which may preempt or delay other
management activities, neither Oxford, nor any of its officers,
employees, representatives or agents will directly or indirectly
solicit or initiate any discussions or negotiations with, or, except
where required by fiduciary obligations under applicable law as advised
by counsel, participate in any negotiations with or provide any
information to or otherwise cooperate in any other way with, or
facilitate or encourage any effort or attempt by, any corporation,
partnership, person or other entity or group (other than Urbana and its
directors, officers, employees, representatives and agents) concerning
any merger, sale of substantial assets, sale of shares of capital
stock, (including without limitation, any public or private offering of
the common stock of Oxford or similar transactions involving Oxford
(all such transactions being referred to as "Oxford Acquisition
Transactions"). If Oxford receives any proposal with respect to a
Oxford Acquisition Transaction, it will immediately communicate to
Urbana the fact that it has received such proposal and the principal
terms thereof.
Section 4.06 Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing Date and
except as set forth in the Oxford Schedules or Urbana Schedules or as permitted
or contemplated by this Agreement, Oxford (subject to paragraph (d) below) and
Urbana respectively, will each:
(i) carry on its business in substantially the same manner as it has
heretofore;
(ii) maintain and keep its properties in states of good repair and
condition as at present, except for depreciation due to ordinary wear and
tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in amount
and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its obligations under
material contracts, leases, and instruments relating to or affecting its
assets, properties, and business;
(v) use its best efforts to maintain and preserve its business
organization intact, to retain its key employees, and to maintain its
relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and all
rules, regulations, and orders imposed by federal or state governmental
authorities.
(b) From and after the date of this Agreement until the Closing Date,
neither Oxford nor Urbana will:
(i) make any changes in their articles or certificate of incorporation
or bylaws;
(ii) take any action described in Section 1.06 in the case of Urbana
(except as permitted therein or as disclosed in the applicable party's
schedules);
(iii) enter into or amend any contract, agreement, or other instrument
of any of the types described in such party's schedules, except that a
party may enter into or amend any contract, agreement, or other instrument
in the ordinary course of business involving the sale of goods or services;
or
(iv) sell any assets or discontinue any operations (other than the
Divestiture), sell any shares of capital stock or conduct any similar
transactions other than in the ordinary course of business.
(C) In light of the fact that Urbana's shareholders will control
Oxford as a result of the Exchange, from and after the date of this
Agreement until the Closing Date, Oxford shall take no action which is
material to its business without the prior written approval of Urbana,
which Urbana may give or withhold in its sole discretion after consultation
with Oxford.
Section 4.07 Indemnification.
(a) Urbana hereby agrees to indemnify Oxford and each of the
officers, agents and directors of Oxford as of the date of execution of
this Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against
any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentations made under Article I of
this Agreement. The indemnification provided for in this paragraph
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF OXFORD
The obligations of Oxford under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Urbana in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date (except for changes therein permitted by this Agreement). Urbana shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Urbana prior to or at the Closing.
Oxford shall be furnished with a certificate, signed by a duly authorized
executive officer of Urbana and dated the Closing Date, to the foregoing effect.
Section 5.02 Officer's Certificate. Oxford shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of Urbana to the effect that no litigation, proceeding, investigation,
or inquiry is pending, or to the best knowledge of Urbana threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement, or, to the extent not disclosed in
the Urbana Schedules, by or against Urbana, which might result in any material
adverse change in any of the assets, properties, business, or operations of
Urbana.
Section 5.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business,
or operations of Urbana nor shall any event have occurred which, with the lapse
of time or the giving of notice, is determined to be unacceptable using the
criteria set forth in Section 1.19.
Section 5.04 Good Standing. Oxford shall have received a certificate of
good standing from the Nevada Secretary of State, dated as of a date within ten
days prior to the Closing Date certifying that Urbana is in good standing as a
corporation in the State of Nevada.
Section 5.05 Approval by Urbana Directors. The Exchange shall have been
approved, and shares delivered in accordance with Section 3.01, by the directors
of Urbana.
Section 5.06 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.07 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Oxford and Urbana after the Closing Date on the basis as presently
operated shall have been obtained.
Section 5.08 Other Items.
------------
(a) Oxford shall have received a list of Urbana's shareholders
containing the name, address, and number of shares held by each Urbana
shareholder as of the date of Closing, certified by an executive
officer of Urbana as being true, complete and accurate; and
(b) Oxford shall have received such further opinions,
documents, certificates or instruments relating to the transactions
contemplated hereby as Oxford may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF URBANA
The obligations of Urbana under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Oxford in this Agreement were true
when made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Additionally, Oxford shall have performed and complied with all covenants and
conditions required by this Agreement to be performed or complied with by Oxford
and shall have satisfied the conditions described below prior to or at the
Closing:
(a) The directors of Oxford shall have approved the Exchange and the
related transactions described herein.
Section 6.02 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.03 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Oxford and Urbana after the Closing Date on the basis as presently
operated shall have been obtained.
Section 6.04 Other Items. Urbana shall have received further opinions,
documents, certificates, or instruments relating to the transactions
contemplated hereby as Urbana may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. Oxford and Urbana agree that, except as set out
on Schedule 7.01 attached hereto, there were no finders or brokers involved in
bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. Oxford and Urbana each agree to
indemnify the other against any claim by any third person other than those
described above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Texas without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States, (b) by execution and delivery of this Agreement, irrevocably submits to
and accepts, with respect to any such action or proceeding, generally and
unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives
any and all rights such party may now or hereafter have to object to such
jurisdiction.
Section 7.03 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to Oxford, to: Oxford Knight International, Inc.
C/o Xxxx Syracuse
00000 Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
With copies to: Xxxxx Xxxx, Esq.
Vanderkam & Xxxxxxx
000 Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to Urbana, to: Xxxxxx.XX, Inc.
With copies to:
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.04 Attorney's Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
Section 7.05 Confidentiality. Each party hereto agrees with the other
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.06 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 7.07 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.08 Third Party Beneficiaries. This contract is strictly
between Oxford and Urbana, and, except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 7.09 Expenses. Subject to Sections 3.05 and 7.04 above, whether
or not the Exchange is consummated, each of Oxford and Urbana will bear their
own respective expenses, including legal, accounting and professional fees,
incurred in connection with the Exchange or any of the other transactions
contemplated hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.11 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two years.
Section 7.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.13 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first-above written.
ATTEST: OXFORD KNIGHT INTERNATIONAL, INC.
BY: /s/ Xxxx Syracuse
------------------------------------- ---------------------------------
Secretary or Assistant Secretary President
ATTEST: XXXXXX.XX, INC.
BY: /s/ Xxxxx Xxxxxx
-------------------------------------- ---------------------------------
Secretary or Assistant Secretary President
