EXHIBIT 9.1
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT ("Agreement") is made as of the 25th day of
September, 2007, by and between WATCHIT TECHNOLOGIES, INC., a Nevada corporation
(the "Issuer"), and DIGITAL FUSION GROUP, a Virginia limited liability
corporation (the "Holder").
W I T N E S S E T H:
WHEREAS, the Issuer has previously issued to Holder an aggregate of
2,875,000 shares of the Issuer's common stock, $.0001 par value (the "Common
Stock"); and
WHEREAS, the Holder has requested that the Issuer exchange the Common
Stock for shares of Issuer's Series A Preferred Stock, $.0001 par value (the
"Series A Stock"), and the Issuer has so agreed, subject to the terms of this
Agreement.
NOW, THEREFORE, for and in consideration of the agreements contained
herein and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged and confessed, the parties agree as follows:
1. Exchange.
a. Exchange Shares. All Common Stock shall be exchanged for Series
A Stock at a rate of 50 shares of Common Stock for 1 share of Series A Preferred
Stock. In accordance therewith, the Holder shall deliver to the Issuer one or
more stock certificates representing the 2,875,000 shares of Common Stock held
by the Holder, properly endorsed for transfer, and the Issuer shall deliver to
the Holder a stock certificate representing 57,500 shares of Series A Stock (the
"Exchange Shares") in exchange (the "Exchange") for the Holder's 2,875,000
shares of Common Stock.
2. Representations and Warranties of Issuer. Issuer represents and
warrants to the Holder as follows:
a. Issuer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada.
b. Issuer has all necessary corporate power and authority to enter
into and carry out this Agreement. All corporate actions and proceedings on the
part of Issuer, its directors and shareholders necessary for the authorization,
execution, delivery and performance by Issuer of this Agreement and the
transactions contemplated hereby, including, without limitation, the
authorization, issuance and delivery of the Exchange Shares, have been lawfully
and validly taken. This Agreement is the valid and binding obligation of the
Issuer, enforceable in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or other laws
and principles now or hereafter in effect relating to or affecting the
enforcement of creditors' rights in general and by general principles of equity
and except that the enforcement of the indemnity provisions of Paragraph 5 may
be limited by federal or state securities laws, other laws or the public policy
underlying any such laws.
c. Upon the Exchange, the Exchange Shares will be duly authorized,
validly issued, fully paid and non-assessable, and will be free of any liens,
charges, encumbrances, restrictions on transfer or preemptive rights (except
such that arise by acts of the Holder, under federal, state or foreign
securities laws or that exist by reason of any agreement heretofore entered into
between the Holder and the Issuer) (each, a "Lien").
d. Neither the execution, delivery and performance by Issuer of
this Agreement, the consummation of the transactions contemplated hereby nor the
issuance of the Exchange Shares will: (i) violate any provision of Issuer's
Articles of Incorporation, as amended from time to time, or Issuer's By-Laws;
(ii) violate any provision of any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority to which Issuer or any
of its properties or assets is subject, which violation could have, singly or in
the aggregate, a material adverse effect on the business, properties, condition
(financial or otherwise), results of operations or prospects of Issuer; or (iii)
violate, breach, constitute a default under, permit the termination or
acceleration of, or result in the creation of any Liens upon the Exchange Shares
or any material property of Issuer under any agreement, instrument or obligation
to which Issuer is a party or by which it or any of its properties or assets is
bound, which violation, breach, default, termination acceleration or Lien could
have, singly or in the aggregate, any material adverse effect on the business,
properties, condition (financial or otherwise), results of operations or
prospects of Issuer.
e. Issuer is not in violation of: (i) its Articles of Incorporation
or By-Laws as in effect on the effective date of this Agreement; (ii) any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority, which violation could have, singly or in the
aggregate, a material adverse effect on the business, properties, condition
(financial or otherwise), results of operations or prospects of Issuer; or (iii)
any material agreement to which Issuer is a party or by which any of its
properties or assets is bound, which violation could have, singly or in the
aggregate, a material adverse effect on the business, properties, condition
(financial or otherwise), results of operations or prospects of Issuer.
f. No notice to or filing with, and no authorization, consent or
approval of, any domestic or foreign court or any public or governmental body or
authority is necessary for the consummation by Issuer of the transactions
contemplated by this Agreement or the issuance of the Exchange Shares except:
(i) as may be required under the Securities Act of 1933, as amended (the "1933
Act"), the securities or Blue Sky laws of any jurisdiction or the corporate laws
of the State of Nevada, (ii) notices or filings of which the failure to give or
make, or authorizations, consents and approvals of which the failure to obtain,
is based on information given to Issuer by the Holder with respect to the Holder
or its business, operations or ownership; and (iii) notices or filings of which
the failure to give or make, and authorizations, consents and approvals of which
the failure to obtain, would not individually or in the aggregate, have a
material adverse effect on the business, properties, condition (financial or
otherwise), results of operations or prospects of Issuer or adversely affect the
operations or prospects of Issuer to consummate the transactions contemplated by
this Agreement.
3. Representations and Warranties of Holder. The Holder hereby
represents and warrants to Issuer as follows:
a. The Holder is a limited liability company duly organized,
validly existing and in good standing under the laws of the jurisdiction set
forth in the preamble to this Agreement.
b. The Holder has all necessary power and authority to enter into
and carry out this Agreement. This Agreement is the valid and binding obligation
of the Holder, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws and principles now or hereafter in effect relating to or affecting
the enforcement of creditors' rights in general and by general principles of
equity and except that the enforcement of the indemnity provisions of Paragraph
5 may be limited by federal or state securities laws, other laws or the public
policy underlying any of such laws.
c. Neither the execution, delivery and performance by the Holder of
this Agreement nor the consummation of the transactions contemplated hereby,
will: (i) violate any provision of any statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority to which the
Holder or any of its properties or assets is subject, which violation could
have, singly or in the aggregate, a material adverse effect on the Holder or its
ability to perform its obligations under this Agreement; or (ii) violate,
breach, constitute a default under, permit the termination or acceleration of,
or result in the creation of any Lien upon any material property of the Holder
under any agreement, instrument or obligation to which the Holder is a party or
by which the Holder or any of its properties or assets is bound, which
violation, breach, default, termination, acceleration or Lien could have, singly
or in the aggregate, a material adverse effect on the Holder its ability to
perform its obligations under this Agreement.
d. No notice to or filing with, and no authorization, consent or
approval of, any domestic or foreign court or any public or governmental body or
authority is necessary for the consummation by the Holder of the transactions
contemplated by this Agreement or the receipt of the Exchange Shares except: (i)
as may be required under the 1933 Act, the securities or Blue Sky laws of any
jurisdiction or the corporate laws of the State of Nevada; (ii) notices or
filings of which the failure to give or make, or authorizations, consents and
approvals of which the failure to obtain, is based on information given to the
Holder by Issuer with respect to Issuer or Issuer's business, operations or
ownership; and (iii) notices or filings of which the failure to give or make,
and authorizations, consents and approvals of which the failure to obtain, would
not individually or in the aggregate, have a material adverse effect on the
Holder or adversely affect Holder's ability to consummate the transactions
contemplated by this Agreement.
e. The Holder is acquiring the Exchange Shares solely for the
Holder's own account and not with a view to, or for resale in connection with,
any distribution thereof. The Holder understands that the Exchange Shares have
not been registered under the 1933 Act by reason of specified exemptions
therefrom which depend upon, among other things, the bona fide nature of the
Holder's investment intent as expressed in this Subparagraph (e).
f. The Holder understands that the Exchange Shares may not be sold,
transferred or otherwise disposed of without registration and/or qualification
under the 1933 Act and any applicable state securities laws or Blue Sky Laws, or
an exemption therefrom, and that in the absence of appropriate registration
and/or qualification, or exemption therefrom, the Exchange Shares must be held
indefinitely. The Holder further understands that the Issuer will take no action
to effect or facilitate such registration and/or qualification for at least four
years from the date of this Agreement. The Holder will not sell, transfer or
otherwise dispose of the Exchange Shares except pursuant to appropriate
registration and/or qualification or an appropriate exemption therefrom. The
Holder agrees to the placement of a legend on the certificate or certificates
representing the Exchange Shares setting forth the foregoing restrictions.
g. The Holder has such knowledge and experience in financial and
business matters and in making investments of this type that it is capable of
evaluating the merits and risks of acquiring the Exchange Shares.
h. The Holder has been furnished access to Issuer's business
records relating to the Exchange Shares, and such additional information and
documents as the Holder has requested, and has been afforded an opportunity to
ask questions of and receive answers from representatives of Issuer concerning
the terms and conditions of this Agreement and the acquisition of the Exchange
Shares.
i. The Holder is an "accredited investor," as such term is defined
in Rule 501(a) promulgated by the Securities and Exchange Commission under the
1933 Act.
4. Survival of Representations and Warranties. All representations and
warranties set forth in this Agreement shall survive the execution and delivery
of this Agreement, and the consummation of the transactions contemplated by this
Agreement, for the period of any applicable statutes of limitations.
5. Indemnification. Each party agrees to indemnify, defend and hold
harmless the other party from any claim, demand, loss, liability, damage or
expense, including, without limitation, interest, penalties and reasonable
attorneys' fees and costs of investigation, incurred as a result of any material
inaccuracy, misrepresentation or breach of any representation, warranty,
covenant or agreement on the part of such party under or pursuant to this
Agreement and the Exhibits and Schedules hereto, if any.
6. General Provisions.
a. Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if transmitted by facsimile with receipt
acknowledged, or upon delivery, if delivered personally or by a recognized
commercial courier with receipt acknowledged, or upon the expiration of 72 hours
after mailing, if mailed by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to Issuer:
WatchIt Technologies, Inc.
Xxx Xxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx XX 00000
Fax: 000-000-0000
If to Holder:
Digital Fusion Group
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxxxx, Xxxx 00000
000-000-0000
Any party from time to time may change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
b. Entire Agreement. This Agreement (including the Schedules and
Exhibits, if any, to this Agreement) constitutes the entire agreement between
the parties with respect to its subject matter and no party shall be entitled to
benefits other than those specified herein, and all prior agreements,
statements, representations and warranties with respect to the subject matter of
this Agreement are superseded by this Agreement.
c. Amendments and Waivers. Neither this Agreement nor any of its
provisions may be amended or modified in any way, except by express written
agreement of the parties hereto. Neither any obligation of a party to this
Agreement, nor any breach or default by a party under this Agreement, may be
changed, waived, discharged or terminated except by a statement in writing
signed by the party against which the enforcement of such change, waiver,
discharge or termination is sought. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion.
d. Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties and their respective successors, heirs,
executors, administrators, legal representatives and assigns.
e. Severability. If any provision of this Agreement shall be
construed as invalid, illegal or unenforceable for any reason and in any
respect, and if the extent of such invalidity, illegality or unenforceability
does not destroy the basis of the bargain herein, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and the remainder of this Agreement shall remain in full force
and effect, enforceable in accordance with its terms as if such provisions had
not been included, or had been modified as provided below, as the case may be.
To carry out the intent of the parties hereto as fully as possible, the invalid,
illegal or unenforceable provision(s), if possible, shall be deemed modified to
the extent necessary and possible to render such provision(s) valid and
enforceable.
f. Headings. The captions and headings to the Paragraphs and
Subparagraphs of this Agreement are inserted for purposes of convenience only,
are not part of this Agreement and shall be given no force or effect in
construing or interpreting the meaning of this Agreement or any of its
provisions.
g. Counterparts. This Agreement shall be in writing and may be
executed in one or more counterparts, each of which shall be deemed an original,
and all of which taken together shall constitute one and the same instrument.
h. Expenses. Issuer and the Holder shall each pay its own expenses
with respect to this Agreement and the transactions contemplated hereby;
provided that Issuer shall pay any stamp or other taxes (excluding income taxes)
which may be payable upon the issuance of the Exchange Shares.
i. Governing Law and Venue. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the law of the State of
Florida without reference to the conflict of laws principles thereof. The courts
of Florida in the Ninth Judicial Circuit, and the United States District Court
for the Middle District of Florida (Orlando Division), shall be the exclusive
courts of jurisdiction and venue for any litigation, special proceeding or other
proceeding as between the parties that may be brought, or arise out of, in
connection with, or by reason of this Agreement. The Holder hereby consents to
the jurisdiction of such courts.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized signatories, effective as the date first set
forth above.
"Issuer"
WATCHIT TECHNOLOGIES, INC.,
a Nevada corporation
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, CEO
"Holder"
DIGITAL FUSION GROUP
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
