ACQUISITION AGREEMENT
Agreement dated as of April 1, 2003 between MICROSIGNAL CORPORATION, a Nevada
corporation ("MSGL/BUYER") on behalf of its shareholders, and EXXCODE, INC., a
Nevada corporation ("EXX/SELLER") on behalf of its shareholders.
The parties wish to provide for Exxcode's sale of the Shares to MicroSignal and
MicroSignal's purchase of the Shares from Exxcode under the terms and conditions
of this Agreement.
The parties agree as follows:
1. The Acquisition.
1.1 Purchase and Sale Subject to the terms and conditions of this
Agreement, at the Closing to be held as provided in Section 2,
Exxcode shall sell the Shares to MicroSignal, and MicroSignal
shall purchase the Shares from Exxcode, free and clear of all
encumbrances.
1.2 Purchase Price. Purchaser will exchange 25,000,000 newly issued
shares of its restricted common stock for each share representing
all of the outstanding capital stock or ownership interest of
Exxcode. It is anticipated that this transaction will be a
nontaxable event under section 368 of the IRS Code.
2. The Closing.
2.1 Place and Time. The closing of the sale and purchase of the
Shares (the "Closing") shall take place in Las Vegas, Nevada no
later than the close of business (PST) on April 7, 2003, or at
such other place, date and time as the parties may agree in
writing.
2.2 Deliveries by Exxcode. At the Closing, Exxcode shall deliver the
following to MicroSignal:
(a) Certificates representing the Shares, duly endorsed for
transfer to MicroSignal and accompanied by any applicable
stock transfer tax stamps; Exxcode shall cause MicroSignal
to change those certificates for, and to deliver to
MicroSignal at the Closing, a certificate representing the
Shares registered in the name of MicroSignal (without any
legend or other reference to any Encumbrance).
(b) The documents contemplated by Section 3.
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(c) All other documents, instruments and writings required by
this Agreement to be delivered by Exxcode at the Closing and
any other documents or records relating to Exxcode's
business reasonably requested by MicroSignal in connection
with this Agreement.
2.3 Deliveries by MicroSignal. At the Closing, MicroSignal shall
deliver the following to Exxcode:
(a) The shares as contemplated by section 1.
(b) The documents contemplated by Section 4.
(c) All other documents, instruments and writings required by
this Agreement to be delivered by MicroSignal at the
Closing.
3. Conditions to MicroSignal's Obligations.
The obligations of MicroSignal to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by MicroSignal:
3.1 Representations, Warranties and Agreements.
(a) The representations and warranties of Exxcode set forth in
this Agreement shall be true and complete in all material
respects as of the Closing Date as though made at such time,
and (b) Exxcode shall have performed and complied in all
material respects with the agreements contained in this
Agreement required to be performed and complied with by it
at or prior to the Closing.
3.2 Resignations of Directors. All directors of MicroSignal, and its
Subsidiaries whose resignations shall have been requested by
Exxcode before the Closing Date shall have submitted their
resignations or been removed effective as of the Closing Date.
4. Conditions to Exxcode 's Obligations.
The obligations of Exxcode to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following conditions, any one or
more of which may be waived by Exxcode:
4.1 Representations, Warranties and Agreements.
(a) The representations and warranties of MicroSignal set
forth in this Agreement shall be true and complete in
all material respects as of the Closing Date as though
made at such time, and (b) MicroSignal shall have
performed and complied in all material respects with the
agreements contained in this Agreement required to be
performed and complied with by it prior to or at the
Closing.
5. Representations and Warranties of Exxcode.
Exxcode represents and warrants to MicroSignal that, to the knowledge of
Exxcode (which limitation shall not apply to Section 5.3), and except as
set forth in the Disclosure Letter:
5.1 Organization of Exxcode; Authorization. Exxcode is a corporation
duly organized, validly existing and in good standing under the
laws of Nevada with full corporate power and authority to execute
and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate
action of Exxcode and this Agreement constitutes a valid and
binding obligation of Exxcode, enforceable against it in
accordance with its terms.
5.2 Conflict as to Exxcode: Neither the execution and delivery of
this Agreement nor the performance of MicroSignal's obligations
hereunder will (a) violate any provision of the certificate of
incorporation or by-laws of Exxcode or (b) violate any statute or
law or any judgment, decree, order, regulation or rule of any
court or other Governmental Body applicable to Exxcode.
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5.3 Ownership of Shares. The delivery of certificates to MicroSignal
and the payment to Exxcode will result in MicroSignal's immediate
acquisition of record and beneficial ownership of the Shares,
free and clear of all Encumbrances. There are no outstanding
options, rights, conversion rights, agreements or commitments of
any kind relating to the issuance, sale or transfer of any Equity
Securities or other securities of Exxcode.
5.4 Title to Properties. Either Exxcode, or one of its Subsidiaries
owns all the material properties and assets that they purport to
own (real, personal and mixed, tangible and intangible),
including, without limitation, all the material properties and
assets reflected in the Balance Sheet (except for property sold
since the date of the Balance Sheet in the ordinary course of
business or leased under capitalized leases), and all the
material properties and assets purchased or otherwise acquired by
Exxcode or any of its Subsidiaries since the date of the Balance
Sheet.
5.5 Buildings, Plants and Equipment. The buildings, plants,
structures and material items of equipment and other personal
property owned or leased by Exxcode, or its Subsidiaries are, in
all respects material to the business or financial condition of
Exxcode and its Subsidiaries, taken as a whole, in good operating
condition and repair (ordinary wear and tear excepted) and are
adequate in all such respects for the purposes for which they are
being used.
5.6 Absence of Certain Changes. Since the date of the Balance Sheet,
neither Exxcode nor any of its Subsidiaries has:
(a) suffered the damage or destruction of any of its properties
or assets (whether or not covered by insurance) which is
materially adverse to the business or financial condition of
Exxcode and its Subsidiaries, taken as a whole, or made any
disposition of any of its material properties or assets
other than in the ordinary course of business;
(b) made any change or amendment in its certificate of
incorporation or by-laws, or other governing instruments;
(c) issued or sold any Equity Securities or other securities,
acquired, directly or indirectly, by redemption or
otherwise, any such Equity Securities, reclassified,
split-up or otherwise changed any such Equity Security, or
granted or entered into any options, warrants, calls or
commitments of any kind with respect thereto;
(d) paid, discharged or satisfied any material claim, liability
or obligation (absolute, accrued, contingent or otherwise),
other than in the ordinary course of business;
(e) prepaid any material obligation having a maturity of more
than 90 days from the date such obligation was issued or
incurred;
(f) cancelled any material debts or waived any material claims
or rights, except in the ordinary course of business;
5.8 No Material Adverse Change. Since the date of the Balance Sheet,
there has not been any material adverse change in the business or
financial condition of Exxcode and its Subsidiaries taken as a
whole, other than changes resulting from economic conditions
prevailing in the United States.
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5.9 Brokers or Finders. Exxcode has not employed any broker or finder
or incurred any liability for any brokerage or finder's fees or
commissions or similar payments in connection with the sale of
the Shares to MicroSignal.
5.10 Transactions with Directors and Officers. Exxcode and its
Subsidiaries do not engage in business with any Person (other
than Exxcode) in which any of Exxcode's directors or officers has
a material equity interest. No director or officer of Exxcode
owns any property, asset or right which is material to the
business of Exxcode and its Subsidiaries, taken as a whole.
6. Representations and Warranties of MicroSignal.
MicroSignal represents and warrants to Exxcode as follows:
6.1 Organization of MicroSignal; Authorization. MicroSignal is a
corporation duly organized, validly existing and in good standing
under the laws of Nevada, with full corporate power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary
corporate action of MicroSignal and this Agreement constitutes a
valid and binding obligation of MicroSignal, enforceable against
it in accordance with its terms.
6.2 Brokers or Finders. MicroSignal has not employed any broker or
finder or incurred any liability for any brokerage or finder's
fees or commissions or similar payments in connection with any of
the transactions contemplated hereby.
6.3 Purchase for Investment. MicroSignal is purchasing the shares
solely for its own account for the purpose of investment and not
with a view to, or for sale in connection with, any distribution
of any portion thereof in violation of any applicable securities
law.
6.4 Conflict as to MicroSignal. Neither the execution and delivery of
this Agreement nor the performance of MicroSignal's obligations
hereunder will (a) violate any provision of the certificate of
incorporation or by-laws of MicroSignal or (b) violate any
statute or law or any judgment, decree, order, regulation or rule
of any court or other Governmental Body applicable to
MicroSignal.
6.5 MicroSignal is a publicly traded company, which trades on the
OTC: Bulletin Board. MicroSignal has properly filed all
documentation with all applicable bodies necessary to become and
remain a publicly traded company. MicroSignal will assist in
completion of overdue SEC filings.
6.6 There are no pending or threatened legal or regulatory claims,
demands or liabilities of any kind or nature against MicroSignal
of it assets other than as disclosed.
6.7 MicroSignal has filed all federal, state and local income or
other tax returns as required by law, and has paid all taxes
which are due, and has no tax delinquencies of any kind.
6.8 There are currently 117,645,058 shares issued and outstanding in
MicroSignal. The shares, when issued were properly distributed
under applicable securities laws, and MicroSignal has taken no
action to cause said stock to lose its current trading status.
There are no warrants, option agreements or pending subscription
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agreements whereby MicroSignal is obligated to issue any
additional stock to any person.
6.9 Upon closing, Exxcode's shareholders will receive a controlling
interest in and complete management control over MicroSignal by
virtue of their stock ownership, and there are no shareholder
rights or agreements, or other legal impediments to the transfer
of management control of MicroSignal.
7. Access and Reporting; Filings With Governmental Authorities.
7.1 Access. Between the date of this Agreement and the Closing Date,
Exxcode shall, and shall cause Exxcode to, (a) give MicroSignal
and its authorized representatives reasonable access to all
plants, offices, warehouse and other facilities and properties of
Exxcode and its Subsidiaries and to the books and records of
Exxcode and its Subsidiaries, (b) permit MicroSignal to make
inspections thereof, and (c) cause its officers and its advisors
to furnish MicroSignal with such financial and operating data and
other information with respect to the business and properties of
Exxcode and its Subsidiaries and to discuss with MicroSignal and
its authorized representatives the affairs of Exxcode and its
Subsidiaries, all as MicroSignal may from time to time reasonably
request.
7.2 Exclusivity. From the date hereof until the earlier of the
Closing or the termination of this Agreement, Exxcode shall not
solicit or negotiate or enter into any agreement with any other
Person with respect to or in furtherance of any proposal for a
merger or business combination involving, or acquisition of any
interest in, or (except in the ordinary course of business) sale
of assets by, Exxcode except for the acquisition of the Shares by
MicroSignal.
7.3 Publicity. Between the date of this Agreement and the Closing
Date, Exxcode and MicroSignal shall, and Exxcode and MicroSignal
shall cause MicroSignal to, discuss and coordinate with respect
to any public filing or announcement or any internal or private
announcement (including any general announcement to employees)
concerning the contemplated transaction.
7.4 Confidentiality. Prior to the Closing Date (or at any time if the
Closing does not occur) MicroSignal shall keep confidential and
not disclose to any Person (other than its employees, attorneys,
accountants and advisors) or use (except in connection with the
transactions contemplated hereby) all non-public information
obtained by MicroSignal pursuant to Section 7.1. Following the
Closing, Exxcode shall keep confidential and not disclose to any
Person (other than its employees, attorneys, accountants and
advisors) or use (except in connection with preparing Tax Returns
and conducting proceeds relating to Taxes) any nonpublic
information relating to MicroSignal and its Subsidiaries. This
Section 7.7 shall not be violated by disclosure pursuant to court
order or as otherwise required by law, on condition that notice
of the requirement for such disclosure is given the other party
prior to making any disclosure and the party subject to such
requirement cooperates as the other may reasonably request in
resisting it. If the Closing does not occur, MicroSignal shall
return to Exxcode, or destroy, all information it shall have
received from Exxcode or in connection with this Agreement and
the transactions contemplated hereby, together with any copies or
summaries thereof or extracts therefrom. Exxcode and MicroSignal
shall use their best efforts to cause their respective
representatives, employees, attorneys, accountants and advisors
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to whom information is disclosed pursuant to Sections 7.1 and 7.6
to comply with the provisions of this Section 7.7.
8. Conduct of Exxcode's Business Prior to the Closing.
8.1 Operation in Ordinary Course. Between the date of this Agreement
and the Closing Date, Exxcode shall cause Exxcode and its
Subsidiaries to conduct their businesses in all material respects
in the ordinary course.
8.2 Business Organization. Between the date of this Agreement and the
Closing Date, Exxcode shall use its reasonable efforts, and shall
cause Exxcode and each of its Subsidiaries to use its respective
reasonable efforts, to (a) preserve substantially intact the
business organization of Exxcode and each of its Subsidiaries and
keep available the services of the present officers and employees
of Exxcode and each of its Subsidiaries, and (b) preserve in all
material respects the present business relationships and good
will of Exxcode and each of its Subsidiaries.
8.3 Corporate Organization. Between the date of this Agreement and
the Closing Date, neither MicroSignal or Exxcode shall not cause
or permit any amendment of the certificate of incorporation or
by-laws (or other governing instrument) of Exxcode or any of its
Subsidiaries, and shall cause Exxcode and each of its
Subsidiaries not to:
(a) issue, sell or otherwise dispose of any of its Equity
Securities, or create, sell or otherwise dispose of any
options, rights, conversion rights or other agreements or
commitments of any kind relating to the issuance, sale or
disposition of any of its Equity Securities;
(b) sell or otherwise dispose of any Equity Securities of
Exxcode or any of its Subsidiaries, or create or suffer to
be created any Encumbrance thereon, or create, sell or
otherwise dispose of any options, rights, conversion rights
or other agreements or commitments of any kind relating to
the sale or disposition of any Equity Securities of Exxcode
or any of its Subsidiaries;
(c) reclassify, split up or otherwise change any of its Equity
Securities;
(d) be party to any merger, consolidation or other business
combination;
(e) sell, lease, license or otherwise dispose of any of its
properties or assets (including, but not limited to rights
with respect to patents and registered trademarks and
copyrights or other proprietary rights), in an amount which
is material to the business or financial condition of
Exxcode and its Subsidiaries, taken as a whole, except in
the ordinary course of business.
9. Survival of Representations and Warranties; Indemnification.
9.1 Survival. No representation or warranty contained in this
Agreement or in any certificate or document delivered pursuant
hereto shall survive the Closing, except for those contained in
Sections 5.1, 5.2, 5.3(only as to Exxcode), 5.10, 6.1, 6.2, 6.3,
6.4(the "Surviving Representations and Warranties ").
9.2 Indemnification by Exxcode. Exxcode shall indemnify and hold
harmless MicroSignal and MicroSignal and shall reimburse
MicroSignal and MicroSignal for any loss, liability, damage or
expense (including reasonable attorneys fees) (collectively,
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"Damages") arising from or in connection with (a) any inaccuracy
in any of the Surviving Representations and Warranties of Exxcode
in this Agreement or (b) any failure by Exxcode to perform or
comply with any agreement in this Agreement.
9.3 Indemnification by MicroSignal. MicroSignal shall indemnify and
hold harmless Exxcode, and shall reimburse Exxcode for, any
Damages arising from or in connection with (a) any inaccuracy in
any of the Surviving Representations and Warranties of
MicroSignal in this Agreement, (b) any failure by MicroSignal to
perform or comply with any agreement in this Agreement, except
that after the Closing no claim shall be made with respect to the
failure to perform or comply with any agreement required to have
been performed or complied with prior to the Closing Date, and
(c) any payments made by Exxcode after the Closing pursuant to
any guaranty by Exxcode of any obligation of MicroSignal or any
of its Subsidiaries (other than as contemplated by Section 2.4).
MicroSignal shall use its best efforts to obtain Exxcode' release
from any such guaranties.
10. Termination.
Termination. This Agreement may be terminated before the Closing
occurs only as follows:
(a) By written agreement of Exxcode and MicroSignal at any time.
(b) By Exxcode, by notice to MicroSignal at any time, if one or
more of the conditions specified in Section 4 is not
satisfied at the time at which the Closing (as it may be
deferred pursuant to Section 2.1) would otherwise occur or
if satisfaction of such a condition is or becomes
impossible.
(c) By MicroSignal, by notice to Exxcode at any time, if one or
more of the conditions specified in Section 3 is not
satisfied at the time at which the Closing (as it may be
deferred pursuant to Section 2.1), would otherwise occur of
if satisfaction of such a condition is or becomes
impossible.
(d) By MicroSignal or Exxcode, by notice to the other at any
time after April 4, 2003.
10.1 Effect of Termination.
If this Agreement is terminated pursuant to Section 10(a), this Agreement
shall terminate without any liability or further obligation of any party to
another.
11. Notices.
All notices, consents, assignments and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given
when (a) delivered by hand, (b) sent by telex or telecopier (with receipt
confirmed), provided that a copy is mailed by registered mail, return
receipt requested, or (c) received by the delivery service (receipt
requested), in each case to the appropriate addresses, telex numbers and
telecopier numbers set forth below (or to such other addresses, telex
numbers and telecopier numbers as a party may designate as to itself by
notice to the other parties).
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If to Exxcode: If to MicroSignal:
Exxcode, Inc. MicroSignal Corporation
0000 Xxxxxxxx Xxxxx, #0 000 Xxxxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxx, XX 00000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
12. Miscellaneous.
12.1 Expenses. Each party shall bear its own expenses incident to the
preparation, negotiation, execution and delivery of this
Agreement and the performance of its obligations hereunder.
12.2 Captions. The captions in this Agreement are for convenience of
reference only and shall not be given any effect in the
interpretation of this agreement.
12.3 No Waiver. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be
considered a waiver or deprive that party of the right thereafter
to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing.
12.4 Exclusive Agreement; Amendment. This Agreement supersedes all
prior agreements among the parties with respect to its subject
matter and is intended (with the documents referred to herein) as
a complete and exclusive statement of the terms of the agreement
among the parties with respect thereto and cannot be changed or
terminated orally.
12.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but
all of which together shall constitute the same instrument.
12.6 Governing Law. This Agreement and (unless otherwise provided) all
amendments hereof and waivers and consents hereunder shall be
governed by the internal law of the State of Nevada, without
regard to the conflicts of law principles thereof.
12.7 Binding Effect. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective
successors and assigns, provided that neither party may assign
its rights hereunder without the consent of the other except that
MicroSignal may assign its rights (but not its obligations) under
this Agreement to its wholly-owned Subsidiary without the consent
of Exxcode, provided that, after the Closing, no consent of
Exxcode shall be needed in connection with any merger or
consolidation of MicroSignal with or into another entity.
MicroSignal Corporatio
------------------------------------------
By: Xxxxxxx XxXxxxxxx
CEO & President
Exxcode, Inc.
---------------------------
By: Xxxxxxx Xxxxxx
President
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