EXHIBIT 2.1
SHARE EXCHANGE AGREEMENT BY AND BETWEEN XXXXXXX ENERGY CORPORATION
AND WORLDWIDE BUSINESS SOLUTIONS INCORPORATED
DATED AS OF MAY 13, 2005
SHARE EXCHANGE AGREEMENT
by and between
XXXXXXX ENERGY CORPORATION, A NEVADA CORPORATION
and
WORLDWIDE BUSINESS SOLUTIONS INCORPORATED, A COLORADO CORPORATION
Dated as of May 13, 2005
TABLE OF CONTENTS
PAGE
THE SHARE EXCHANGE.............................................................1
1.1 THE SHARE EXCHANGE................................................1
1.2 NUMBER OF SHARES OF XXXXXXX COMMON STOCK..........................1
1.3 CONVERSION OF WORLDWIDE COMMON STOCK AND WARRANTS.................2
1.4 EFFECTIVE TIME....................................................2
1.5 FRACTIONAL SHARES.................................................2
1.6 RESERVATION OF SHARES.............................................2
1.7 ADJUSTMENTS TO EXCHANGE RATIO.....................................2
1.8 DISSENTING SHARES.................................................2
1.9 EXCHANGE OF CERTIFICATES..........................................3
1.10 NO FURTHER OWNERSHIP RIGHTS IN WORLDWIDE COMMON STOCK.............3
1.11 LOST, STOLEN OR DESTROYED CERTIFICATES............................3
1.12 EXEMPTION FROM REGISTRATION.......................................3
1.13 REPORTING OF SHARE EXCHANGE.......................................3
1.14 BOARD OF DIRECTORS AND OFFICERS OF XXXXXXX........................4
1.15 TAKING OF NECESSARY ACTION; FURTHER ACTION........................4
THE CLOSING....................................................................4
2.1 TIME AND PLACE OF CLOSING.........................................4
2.2 OBLIGATIONS OF WORLDWIDE AND THE WORLDWIDE SHAREHOLDERS AT
OR PRIOR TO THE CLOSING...........................................4
2.3 OBLIGATIONS OF XXXXXXX AT OR PRIOR TO THE CLOSING.................4
REPRESENTATIONS AND WARRANTIES OF WORLDWIDE....................................5
3.1 ORGANIZATION AND QUALIFICATION....................................5
3.2 CAPITALIZATION....................................................5
3.3 SUBSIDIARIES AND AFFILIATES.......................................6
3.4 OPTIONS OR OTHER RIGHTS...........................................6
3.5 OWNERSHIP OF SHARES...............................................6
3.6 VALIDITY AND EXECUTION OF AGREEMENT...............................6
3.7 NO CONFLICT.......................................................6
3.8 CONSENTS AND APPROVALS............................................7
3.9 VIOLATION OF LAWS, PERMITS, ETC...................................7
3.10 BOOKS AND RECORDS.................................................7
3.11 WORLDWIDE FINANCIAL STATEMENTS....................................7
3.12 UNDISCLOSED LIABILITIES...........................................7
3.13 TITLE TO PROPERTY; ENCUMBRANCES...................................8
3.14 TAXES.............................................................8
3.15 LITIGATION........................................................9
3.16 CONTRACTS AND OTHER AGREEMENTS....................................9
3.17 COMPENSATION ARRANGEMENTS; OFFICERS AND DIRECTORS.................9
3.18 ERISA.............................................................9
3.19 OPERATIONS........................................................9
3.20 LICENSES AND PERMITS.............................................11
3.21 BROKERS..........................................................11
3.22 DISCLOSURE.......................................................11
REPRESENTATIONS AND WARRANTIES OF XXXXXXX.....................................11
4.1 ORGANIZATION AND QUALIFICATION...................................12
4.2 CAPITALIZATION...................................................12
4.3 SUBSIDIARIES AND AFFILIATES......................................12
4.4 OPTIONS OR OTHER RIGHTS..........................................12
4.5 VALIDITY AND EXECUTION OF AGREEMENT..............................12
4.6 NO CONFLICT......................................................12
4.7 CONSENTS AND APPROVALS...........................................13
4.8 VIOLATION OF LAWS, PERMITS, ETC..................................13
4.9 BOOKS AND RECORDS................................................13
4.10 XXXXXXX FINANCIAL STATEMENTS.....................................13
4.11 UNDISCLOSED LIABILITIES..........................................13
4.12 TITLE TO PROPERTY; ENCUMBRANCES..................................14
4.13 TAXES............................................................14
4.14 LITIGATION.......................................................14
4.15 CONTRACTS AND OTHER AGREEMENTS...................................14
4.16 COMPENSATION ARRANGEMENTS; OFFICERS AND DIRECTORS................15
4.17 ERISA............................................................15
4.18 OPERATIONS.......................................................15
4.19 BROKERS..........................................................17
4.20 APPROVAL OF SHARE EXCHANGE.......................................17
4.21 INVESTMENT COMPANY...............................................17
4.22 TRADING STATUS...................................................17
4.23 DISCLOSURE.......................................................17
ACTIONS PRIOR TO CLOSING......................................................17
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS........................17
5.2 CONDUCT AND PRESERVATION OF BUSINESS OF XXXXXXX..................18
5.3 CONDUCT AND PRESERVATION OF BUSINESS OF WORLDWIDE................18
5.4 ADVICE OF CHANGES................................................18
5.5 PINK SHEETS......................................................19
5.6 XXXXXXX SHAREHOLDER APPROVAL.....................................19
5.7 SHAREHOLDER APPROVALS............................................19
5.8 OTHER AGREEMENTS.................................................19
CONDITIONS PRECEDENT TO CLOSING...............................................19
6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF XXXXXXX TO
COMPLETE THE CLOSING.............................................19
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF WORLDWIDE TO
COMPLETE THE CLOSING.............................................21
POST-CLOSING COVENANTS........................................................22
7.1 FURTHER INFORMATION..............................................22
7.2 RECORD RETENTION.................................................23
7.3 POST-CLOSING ASSISTANCE..........................................23
SURVIVAL; INDEMNIFICATION.....................................................23
8.1 SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES...........23
TERMINATION OF AGREEMENT......................................................23
9.1 TERMINATION......................................................23
9.2 SURVIVAL AFTER TERMINATION.......................................24
MISCELLANEOUS.................................................................24
10.1 EXPENSES.........................................................24
10.2 FURTHER ASSURANCES...............................................24
10.3 NOTICES..........................................................25
10.4 MEDIATION........................................................25
10.5 ARBITRATION......................................................26
10.6 PUBLICITY........................................................26
10.7 ENTIRE AGREEMENT.................................................26
10.8 WAIVERS AND AMENDMENTS...........................................26
10.9 GOVERNING LAW....................................................27
10.10 BINDING EFFECT, NO ASSIGNMENT....................................27
10.11 COUNTERPARTS.....................................................27
10.12 EXHIBITS AND SCHEDULES...........................................27
10.13 EFFECT OF DISCLOSURE ON SCHEDULES................................27
10.14 HEADINGS.........................................................27
10.15 SEVERABILITY OF PROVISIONS.......................................27
SCHEDULE A - WORLDWIDE SHAREHOLDERS
THIS SHARE EXCHANGE AGREEMENT is entered into as of May 13, 2005, by and between
XXXXXXX ENERGY CORPORATION, a Nevada corporation ("XXXXXXX"), and WORLDWIDE
BUSINESS SOLUTIONS INCORPORATED, a Colorado corporation ("WORLDWIDE").
RECITALS
A. The Boards of Directors of each of XXXXXXX and WORLDWIDE have determined
that it is in the best interests of XXXXXXX and WORLDWIDE (as
applicable) and their respective shareholders that XXXXXXX acquire
WORLDWIDE through a statutory share exchange under the laws of Nevada
and Colorado (the "SHARE EXCHANGE") and, in furtherance thereof, have
approved the Share Exchange, this Agreement and the transactions
contemplated hereby.
B. Pursuant to the Share Exchange, among other things, and subject to the
terms and conditions of this Agreement, all of the shares of capital
stock of WORLDWIDE which are issued and outstanding immediately prior to
the Effective Time (as defined below) shall be converted into the right
to receive shares of common stock, $0.001 par value per share, of
XXXXXXX ("XXXXXXX COMMON STOCK") on the terms and subject to the
conditions set forth herein.
X. XXXXXXX and WORLDWIDE desire to make certain representations,
warranties, covenants and agreements in connection with the Share
Exchange.
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements hereinafter set forth, in accordance with the provisions of
applicable law, the parties hereby agree as follows:
ARTICLE I
THE SHARE EXCHANGE
1.1 THE SHARE EXCHANGE. At the Effective Time and upon the terms and subject
to the conditions of this Agreement and the applicable provisions of the
Nevada Revised Statutes (the "NEVADA LAW") and the Colorado Business
Corporation Act and all amendments and additions thereto (the "COLORADO
LAW"), by virtue of the Share Exchange and without any action on the
part of XXXXXXX or the holder of any shares of WORLDWIDE Common Stock,
the following shall occur:
1.2 NUMBER OF SHARES OF XXXXXXX COMMON STOCK. The stockholders of WORLDWIDE
named on SCHEDULE A attached to this Agreement (the "WORLDWIDE
SHAREHOLDERS") shall receive an aggregate of up to 7,200,000
post-reverse split shares of XXXXXXX Common Stock on a pro rata basis
based on their percentage shareholdings in WORLDWIDE at the Effective
Date, and WORLDWIDE shall become a wholly-owned subsidiary of XXXXXXX.
Share Exchange Agreement - Page 1
1.3 CONVERSION OF WORLDWIDE COMMON STOCK AND WARRANTS.
(a) Each share of WORLDWIDE Common Stock issued and outstanding
immediately prior to the Effective Time (other than any Dissenting
Shares, as such term is defined in SECTION 1.8) will be
automatically cancelled and extinguished and each share of
WORLDWIDE Common Stock that is issued and outstanding immediately
prior to the Effective Time shall be converted automatically into
the right to receive one (1) post-reverse split share of XXXXXXX
Common Stock (the "EXCHANGE RATIO").
(b) Each warrant to purchase one share of WORLDWIDE Common Stock
issued and outstanding immediately prior to the Effective Time,
other than those held by holders of Dissenting Shares, as such
term is defined in SECTION 1.8) will be automatically cancelled
and extinguished and each warrant to purchase one share of
WORLDWIDE Common Stock that is issued and outstanding immediately
prior to the Effective Time shall be converted automatically into
the right to a warrant to purchase one (1) post-reverse split
share of XXXXXXX Common Stock at the same price and for the same
exercise period.
1.4 EFFECTIVE TIME. The Share Exchange will become effective upon the proper
filing of Articles of Share Exchange with the Secretary of State of
Nevada and Secretary of State of the State of Colorado (the "EFFECTIVE
TIME").
1.5 FRACTIONAL SHARES. No fraction of a share of XXXXXXX Common Stock will
be issued upon such exchange of shares of WORLDWIDE Common Stock.
Instead amounts of shares will be rounded to the nearest whole number.
1.6 RESERVATION OF SHARES. XXXXXXX will reserve sufficient shares of XXXXXXX
Common Stock for issuance pursuant to SECTION 1.3.
1.7 ADJUSTMENTS TO EXCHANGE RATIO. The Exchange Ratio shall be equitably
adjusted to reflect fully the effect of any stock split, reverse split,
stock combination, stock dividend (including any dividend or
distribution of securities convertible into XXXXXXX Common Stock or
WORLDWIDE Common Stock), reorganization, reclassification,
recapitalization or other like change with respect to XXXXXXX Common
Stock or WORLDWIDE Common Stock, the effective date of which occurs
after the date hereof and prior to the Effective Time.
1.8 DISSENTING SHARES.
(a) Notwithstanding any provision of this Agreement to the contrary,
any shares of WORLDWIDE Common Stock held by a holder who has
demanded and perfected appraisal rights for such shares in
accordance with the Colorado Law and who, as of the Effective
Time, has not effectively withdrawn or lost such appraisal or
dissenters' rights ("DISSENTING SHARES") shall not be converted
into or represent a right to receive XXXXXXX Common Stock pursuant
to SECTIONS 1.2 and 1.3, but the holder thereof shall only be
entitled to such rights as are granted by the Colorado Law.
(b) Notwithstanding the provisions of SECTION 1.8(A), if any holder of
shares of WORLDWIDE Common Stock who demands appraisal of such
shares under the
Share Exchange Agreement - Page 2
Colorado Law shall effectively withdraw or lose (through failure
to perfect or otherwise) the right to appraisal, then, as of the
later of (i) the Effective Time or (ii) the occurrence of such
event, such holder's shares shall automatically be converted into
and represent only the right to receive XXXXXXX Common Stock as
provided in SECTIONS 1.2 and 1.3, without interest thereon, in
accordance with SECTIONS 1.2 and 1.3.
(c) WORLDWIDE shall give XXXXXXX (i) prompt notice of its receipt of
any written demands for appraisal of any shares of XXXXXXX Common
Stock, withdrawals of such demands, and any other instruments
relating to the Share Exchange received by WORLDWIDE and (ii) the
opportunity to participate in all negotiations and proceedings
with respect to demands for appraisal under the Colorado Law.
1.9 EXCHANGE OF CERTIFICATES. At Closing, or as soon as practicable
thereafter, XXXXXXX shall have its transfer agent issue a letter of
transmittal to each WORLDWIDE Shareholder listed on SCHEDULE A hereto.
After having received a completed letter of transmittal and certificates
representing such WORLDWIDE Shareholder's WORLDWIDE Common Stock, the
transfer agent shall deliver certificates representing the whole number
of shares of XXXXXXX Common Stock into which such WORLDWIDE
Shareholder's shares of WORLDWIDE Common Stock shall have been exchanged
as set forth herein.
1.10 NO FURTHER OWNERSHIP RIGHTS IN WORLDWIDE COMMON STOCK. All shares of
XXXXXXX Common Stock issued upon the surrender for exchange of shares of
WORLDWIDE Common Stock in accordance with the terms hereof shall be
deemed to have been issued in full satisfaction of all rights pertaining
to such shares of WORLDWIDE Common Stock, and there shall be no further
registration of transfers on the records of WORLDWIDE of shares of
WORLDWIDE Common Stock which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, certificates are presented
to the XXXXXXX for any reason, they shall be canceled and exchanged as
provided in this Article 1.
1.11 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any certificates
evidencing shares of WORLDWIDE Common Stock shall have been lost, stolen
or destroyed, the transfer agent for XXXXXXX shall issue certificates
representing such shares of XXXXXXX Common Stock in exchange for such
lost, stolen or destroyed certificates, upon the making of an affidavit
of that fact by the holder thereof.
1.12 EXEMPTION FROM REGISTRATION. The shares of XXXXXXX Common Stock to be
issued pursuant to SECTIONS 1.2 and 1.3 in connection with the Share
Exchange will be issued in a transaction exempt from registration under
the Securities Act of 1933, as amended (including the rules and
regulations promulgated thereunder, the "SECURITIES ACT").
1.13 REPORTING OF SHARE EXCHANGE. For federal, state, and local income tax
return reporting purposes, all parties agree to treat the Share Exchange
as a nontaxable exchange under Section 368 of the Internal Revenue Code.
Share Exchange Agreement - Page 3
1.14 BOARD OF DIRECTORS AND OFFICERS OF XXXXXXX. Immediately after the
Closing, the officers and directors of XXXXXXX shall resign and shall
have appointed persons designed by WORLDWIDE to serve as directors.
1.15 TAKING OF NECESSARY ACTION; FURTHER ACTION. If, at any time after the
Effective Time, any such further action is necessary or desirable to
carry out the purposes of this Agreement, the officers and directors of
XXXXXXX are fully authorized to take, and will use their reasonable
efforts to take, all such lawful and necessary action.
ARTICLE II
THE CLOSING
2.1 TIME AND PLACE OF CLOSING. The closing of the Share Exchange (the
"CLOSING") shall, unless otherwise agreed to in writing by the parties,
take place at a place and time to be determined by the parties, on or
prior to May 31, 2005.
2.2 OBLIGATIONS OF WORLDWIDE AND THE WORLDWIDE SHAREHOLDERS AT OR PRIOR TO
THE CLOSING. At or prior to Closing, and subject to the satisfaction by
XXXXXXX of its obligations hereunder, WORLDWIDE and the WORLDWIDE
Shareholders shall deliver to XXXXXXX the following:
(a) A copy of the Articles of Incorporation of WORLDWIDE certified as
of a date within ten days of the Closing by the Secretary of State
of the State of Colorado and certified by the corporate secretary
of WORLDWIDE as to the absence of any amendments between the date
of certification by the Secretary of State and the Closing;
(b) A certificate from the Secretary of State of the State of Colorado
as to the existence and good standing of WORLDWIDE as of a date
within ten days of the Closing;
(c) A certificate of the corporate secretary of WORLDWIDE attaching
thereto true and correct copies of the bylaws of WORLDWIDE;
(d) The certificate of WORLDWIDE referred to in SECTION 6.1 hereof;
(e) Such other documents as are required pursuant to this Agreement or
as may reasonably be requested from WORLDWIDE by XXXXXXX or its
counsel; and
(f) The certificates evidencing the shares of WORLDWIDE Common Stock
owned by the WORLDWIDE Shareholders, duly endorsed for transfer to
XXXXXXX.
2.3 OBLIGATIONS OF XXXXXXX AT OR PRIOR TO THE CLOSING. At or prior to
Closing, and subject to the satisfaction by WORLDWIDE of its obligations
hereunder, XXXXXXX shall deliver to WORLDWIDE and the WORLDWIDE
Shareholders the following:
Share Exchange Agreement - Page 4
(a) A copy of the Articles of Incorporation of XXXXXXX certified as of
a date within ten days of the Closing by the Secretary of State of
the State of Nevada and certified by the corporate secretary of
XXXXXXX as to the absence of any amendments between the date of
certification by the Secretary of State and the Closing;
(b) A certificate from the Secretary of State of the State of Nevada
as to the existence and good standing of XXXXXXX as of a date
within ten days of the Closing;
(c) A certificate of the corporate secretary of XXXXXXX attaching
thereto true and correct copies of the bylaws of XXXXXXX and the
corporate resolutions duly adopted by the board of directors of
XXXXXXX authorizing the consummation of the transactions
contemplated hereby;
(d) The certificate of XXXXXXX referred to in SECTION 6.2 hereof;
(e) Such other documents as are required pursuant to this Agreement or
as may reasonably be requested from XXXXXXX by WORLDWIDE or its
counsel; and
(f) Certificates evidencing the XXXXXXX Common Stock to be issued to
the WORLDWIDE Shareholders pursuant to ARTICLE I hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF WORLDWIDE
Except as expressly set forth and specifically identified by the section number
of this Agreement in the schedule delivered by WORLDWIDE to XXXXXXX
contemporaneously with the execution of this Agreement (the "WORLDWIDE
DISCLOSURE SCHEDULE"), WORLDWIDE represents, warrants, and covenants to XXXXXXX
as follows:
3.1 ORGANIZATION AND QUALIFICATION. WORLDWIDE is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Colorado and has all requisite corporate power and authority to
(a) own, lease and operate its properties and assets as they are now
owned, leased and operated and (b) carry on its business as currently
conducted and as proposed to be conducted. WORLDWIDE is duly qualified
or licensed to do business in each jurisdiction in which the failure to
be so qualified or licensed could have a material adverse effect in the
business, operations, properties, assets, liabilities, prospects, or
condition (financial or otherwise) of WORLDWIDE (hereinafter a "MATERIAL
EFFECT").
3.2 CAPITALIZATION. As of May 12, 2005, the issued and outstanding capital
stock of WORLDWIDE consists of 6,080,000 shares of common stock. All of
the issued and outstanding shares of capital stock of WORLDWIDE are
validly issued, fully paid, and nonassessable, and none of such shares
has been issued in violation of the preemptive rights of any person.
Share Exchange Agreement - Page 5
3.3 SUBSIDIARIES AND AFFILIATES. Except as set forth in SECTION 3.3 of the
WORLDWIDE Disclosure Schedule, WORLDWIDE does not own or hold, directly
or indirectly, any equity, debt, or other interest in any entity or
business or any option to acquire any such interest.
3.4 OPTIONS OR OTHER RIGHTS. Except as set forth in SECTION 3.4 of the
WORLDWIDE Disclosure Schedule, no options, warrants, calls, commitments
or other rights to acquire, sell or issue shares of capital stock or
other equity interests of WORLDWIDE, whether upon conversion of other
securities or otherwise, are issued or outstanding, and there is no
agreement or understanding with respect to the voting of such capital
stock or other equity interests.
3.5 OWNERSHIP OF SHARES. The shares of WORLDWIDE Common Stock are owned of
record and beneficially by the WORLDWIDE Shareholders as set forth on
Schedule A. To the knowledge of WORLDWIDE, the WORLDWIDE Shareholders
possess full authority and legal right to sell, transfer, and assign the
entire legal and beneficial ownership of the shares of WORLDWIDE common
stock, free from all liens, claims, and encumbrances of any kind.
3.6 VALIDITY AND EXECUTION OF AGREEMENT. WORLDWIDE has the full legal right,
capacity and power required to enter into, execute and deliver this
Agreement and to carry out the transactions contemplated, subject to
approval of the shareholders of WORLDWIDE and the terms set forth in
this Agreement. This Agreement has been duly executed and delivered by
WORLDWIDE and constitutes the valid and binding obligation of WORLDWIDE,
enforceable in accordance with its terms, subject to the qualification
that enforcement of the rights and remedies created hereby is subject to
(a) bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and
(b) general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
3.7 NO CONFLICT. Except as set forth in SECTION 3.7 of the WORLDWIDE
Disclosure Schedule and to the knowledge of WORLDWIDE, none of the
execution, delivery, or performance of this Agreement does or will: (a)
result in any violation or be in conflict with or constitute a default
under any term or provision of the Articles of Incorporation or bylaws
of WORLDWIDE or any term or provision of any judgment, decree, order,
statute, injunction, rule, or regulation applicable to WORLDWIDE that
would cause a Material Effect, or of any material note, bond, mortgage,
indenture, lease, license, franchise, agreement, or other instrument or
obligation to which WORLDWIDE or is bound that would cause a Material
Effect; (b) result in the creation of any material option, pledge,
security interest, lien, charge, encumbrance, or restriction, whether
imposed by agreement, understanding, law or otherwise, except those
arising under applicable federal or state securities laws (hereinafter
an "ENCUMBRANCE") upon any of the properties or assets of WORLDWIDE
pursuant to any such term or provision that would cause a Material
Effect; or (c) constitute a default under, terminate, accelerate, amend
or modify, or give any party the right to terminate, accelerate, amend,
modify, abandon, or refuse to perform or comply with, any material
contract, agreement, arrangement, commitment, or plan to which WORLDWIDE
is a party, or by which WORLDWIDE or any of its properties or assets may
be subject or bound that would cause a Material Effect.
Share Exchange Agreement - Page 6
3.8 CONSENTS AND APPROVALS. No federal, state, or other regulatory approvals
are required to be obtained, nor any regulatory requirements complied
with, by WORLDWIDE in connection with the Share Exchange.
3.9 VIOLATION OF LAWS, PERMITS, ETC.
(a) WORLDWIDE is not in violation of any term or provision of its
Articles of Incorporation or bylaws, or of any material term or
provision of any judgment, decree, order, statute, law,
injunction, rule, ordinance, or governmental regulation that is
applicable to it and where the failure to comply with which would
have a Material Effect.
(b) WORLDWIDE has maintained in full force and effect all
certificates, licenses, and permits material to the conduct of its
business, and has not received any notification that any
revocation or limitation thereof is threatened or pending.
3.10 BOOKS AND RECORDS. The books and records of WORLDWIDE (including,
without limitation, the books of account, minute books, and stock record
books) are complete and correct in all material respects and have been
maintained in accordance with sound business practices. The minute books
of WORLDWIDE are complete and current in all material respects and, as
applicable, accurately reflect all actions taken by the shareholders and
the board of directors of WORLDWIDE since the date of inception of
WORLDWIDE, and all signatures contained therein are the true signatures
of the persons whose signatures they purport to be.
3.11 WORLDWIDE FINANCIAL STATEMENTS. The unaudited balance sheet of WORLDWIDE
as of March 31, 2005, and the related unaudited statement of income and
statement of cash flows for the one month then ended (the "WORLDWIDE
FINANCIAL STATEMENTS"), true and complete copies of which have been
delivered to XXXXXXX, present fairly, in all material respects, the
financial position of WORLDWIDE as at such dates and the results of
operations of WORLDWIDE for the periods then ended, in accordance with
generally accepted accounting principles ("GAAP") consistently applied
for the periods covered thereby.
3.12 UNDISCLOSED LIABILITIES. To the knowledge of WORLDWIDE, WORLDWIDE does
not have any material direct or indirect indebtedness, liability, claim,
loss, damage, deficiency, obligation or responsibility, fixed or
unfixed, xxxxxx or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, contingent or otherwise (all of the
foregoing being collectively referred to as "LIABILITIES" and
individually as a "LIABILITY"), of a kind required by GAAP to be set
forth on a financial statement that is not fully and adequately
reflected or reserved against on the WORLDWIDE Financial Statements.
WORLDWIDE does not have any Liabilities, whether or not of a kind
required by GAAP to be set forth on a financial statement, other than
(a) Liabilities incurred in the ordinary course of business since the
date of the latest balance sheet included in the WORLDWIDE Financial
Statements that are consistent with past practice and are included in
the latest WORLDWIDE Financial
Share Exchange Agreement - Page 7
Statements, (b) Liabilities that are fully reflected on or reserved
against on the latest balance sheet included in the WORLDWIDE Financial
Statements, or (c) as specifically disclosed in the WORLDWIDE Financial
Statements.
3.13 TITLE TO PROPERTY; ENCUMBRANCES. WORLDWIDE has good and indefeasible
title to and other legal right to use all properties and assets, real,
personal and mixed, tangible and intangible, reflected as owned on the
latest balance sheet included in the WORLDWIDE Financial Statements or
acquired after the date of such balance sheet, except for properties and
assets disposed of in accordance with customary practice in the business
or disposed of for full and fair value since the date of such balance
sheet in the ordinary course of business consistent with past practice
and except for matters that would not have a Material Effect.
3.14 TAXES. All returns, reports, information returns, or other documents
(including any related or supporting information) filed or required to
be filed with any federal, state, local, or foreign governmental entity
or others authority in connection with the determination, assessment or
collection of any Tax (whether or not such Tax is imposed on WORLDWIDE)
or the administration of any laws, regulations or administrative
requirements relating to any Tax (hereinafter "TAX RETURNS"), reports
and declarations of estimated tax or estimated tax deposit forms
required to be filed by WORLDWIDE have been duly and timely filed;
WORLDWIDE has paid all taxes, charges, fees, levies or other assessments
imposed by any federal, state, local or foreign taxing authority,
whether disputed or not, including, without limitation, income, capital,
estimated, excise, property, sales, transfer, withholding, employment,
payroll, and franchise taxes and such terms shall include any interest,
penalties or additions attributable to or imposed on or with respect to
such assessments and any expenses incurred in connection with the
settlement of any tax liability (hereinafter "TAXES") which have become
due whether pursuant to such returns or any assessment received by it or
otherwise, and has paid all installments of estimated Taxes due; and all
Taxes which WORLDWIDE is required by law to withhold or to collect have
been duly withheld and collected, and have been paid over to the proper
court, tribunal, arbitrator or any government or political subdivision
thereof, whether federal, state, county, local or foreign, or any
agency, authority, official or instrumentality of any such government or
political subdivision (hereinafter "GOVERNMENTAL OR REGULATORY BODY").
There are no tax liens upon any of the assets or properties of WORLDWIDE
except for any lien, pledge, hypothecation, mortgage, security interest,
claim, lease, charge, option, right of first refusal, easement,
servitude, transfer restriction under any member or similar agreement,
encumbrance or any other restriction or limitation whatsoever, other
than (i) materialmen's, mechanics', repairmen's or other like liens
arising in the ordinary course of business for amounts either not yet
due or being contested in good faith and by appropriate proceedings so
long as such proceedings shall not involve any material danger of sale,
forfeiture or loss of any part of the assets and shall have been
disclosed to XXXXXXX hereunder, or (ii) any lien arising as a result of
any act or omission of XXXXXXX (hereinafter "LIENS") for Taxes not yet
due. WORLDWIDE is not a party to any express tax settlement agreement,
arrangement, policy or guideline, formal or informal (a "SETTLEMENT
AGREEMENT"), and WORLDWIDE does not have any obligation to make payments
under any Settlement Agreement.
Share Exchange Agreement - Page 8
3.15 LITIGATION.
(a) There is no action, proceeding, investigation, or inquiry pending
or, to the best of WORLDWIDE's knowledge, threatened (i) against
or affecting any of WORLDWIDE's assets or business that, if
determined adversely to WORLDWIDE, would result in a Material
Effect or (ii) that questions this Agreement or any action
contemplated by this Agreement or in connection with the Share
Exchange.
(b) WORLDWIDE has no knowledge of any state of facts or of the
occurrence or nonoccurrence of any event or group of related
events, that should reasonably cause WORLDWIDE to determine that
there exists any basis for any material claim against WORLDWIDE
for any of the matters described in paragraph (a) above.
3.16 CONTRACTS AND OTHER AGREEMENTS. WORLDWIDE has made available to XXXXXXX
complete and correct copies of all material written agreements,
contracts, and commitments, together with all amendments thereto, and
accurate (in all material respects) descriptions of all material oral
agreements. Such agreements, contracts, and commitments are in full
force and effect, and, to the best of WORLDWIDE's knowledge, all other
parties to such agreements, contracts, and commitments have performed
all obligations required to be performed by them to date thereunder in
all material respects and are not in default thereunder in any material
respect.
3.17 COMPENSATION ARRANGEMENTS; OFFICERS AND DIRECTORS. SECTION 3.17 to the
WORLDWIDE Disclosure Schedule sets forth: (a) the names of all present
officers and directors of WORLDWIDE and current annual salary, including
any promised, expected or customary bonus or such other amount, and (b)
the names and titles of all directors and officers of WORLDWIDE.
WORLDWIDE has not made a commitment or agreement (verbally or in
writing) to increase the compensation or to modify the conditions or
terms of employment of any person listed in SECTION 3.17 to the
WORLDWIDE Disclosure Schedule. To the knowledge of WORLDWIDE, none of
such persons has made a threat to WORLDWIDE to terminate such person's
relationship with WORLDWIDE.
3.18 ERISA. Except as set forth in SECTION 3.18 to the WORLDWIDE Disclosure
Schedule, there are no employee benefit plans as defined in ERISA
("PLANS") maintained for the benefit of, or covering, any employee,
former employee, independent contractor or former independent
contractor of WORLDWIDE, or their dependents or their beneficiaries, or
otherwise, now or heretofore contributed to by WORLDWIDE, and no such
Plan is or has ever been subject to ERISA.
3.19 OPERATIONS. Except as expressly authorized by this Agreement, and except
as set forth in SECTION 3.19 to the WORLDWIDE Disclosure Schedule, since
the date of the latest WORLDWIDE Financial Statements, WORLDWIDE has
not:
(a) amended its Articles of Incorporation or By-Laws or merged with or
into or consolidated with any other entity, or changed or agreed
to rearrange in any manner the character of the business of
WORLDWIDE;
Share Exchange Agreement - Page 9
(b) issued, sold or purchased options or rights to subscribe to, or
entered into any contracts or commitments to issue, sell or
purchase, any shares of its capital stock or other equity
interests except in the ordinary course of business and consistent
with past practices, except for the private placement of up to
2,000,000 shares of common stock and warrants to purchase up to
2,000,000 shares of common stock;
(c) issued any note, bond or other debt security, created, incurred or
assumed any indebtedness for borrowed money other than in the
ordinary course of business in connection with trade payables, or
guaranteed any indebtedness for borrowed money or any capitalized
lease obligation;
(d) declared, set aside or paid any dividends or declared or made any
other distributions of any kind to the shareholders, or made any
direct or indirect redemption, retirement, purchase or other
acquisition of any shares of its capital stock or other equity
interests;
(e) knowingly waived any right of material value to the business of
WORLDWIDE;
(f) made any change in its accounting methods or practices or made any
changes in depreciation or amortization policies or rates adopted
by it or made any material write-down of inventory or material
write-off as uncorrectable of accounts receivable;
(g) made any wage or salary increase or other compensation payable or
to become payable or bonus, or increase in any other direct or
indirect compensation, for or to any of its officers, directors,
employees, consultants, agents or other representatives, or any
accrual for or commitment or agreement to make or pay the same,
other than increases made in the ordinary course consistent with
past practice;
(h) entered into any transactions with any of its affiliates,
shareholders, officers, directors, employees, consultants, agents
or other representatives (other than employment arrangements made
in the ordinary course of business consistent with past practice),
or any affiliate of any shareholder, officer, director,
consultant, employee, agent or other representative;
(i) made any payment or commitment to pay any severance or termination
pay to any person or any of its officers, directors, employees,
consultants, agents or other representatives, other than payments
or commitments to pay such persons or their officers, directors,
employees in the ordinary course of business;
(j) except in the ordinary course of business, incurred or assumed any
debt, obligation or liability (whether absolute or contingent and
whether or not currently due and payable);
Share Exchange Agreement - Page 10
(k) except in the ordinary course of business, made any acquisition of
all or any part of the assets, properties, capital stock or
business of any other person;
(l) except in the ordinary course of business, paid, directly or
indirectly, any of its Liabilities before the same became due in
accordance with their terms or otherwise than in the ordinary
course of business, except to obtain the benefit of discounts
available for early payment;
(m) except in the ordinary course of business, created, incurred or
assumed any indebtedness for borrowed money, or guaranteed any
indebtedness for borrowed money or any capitalized lease
obligation, in each case in excess of $50,000 individually or in
the aggregate;
(n) except in the ordinary course of business, made any capital
expenditures or commitments for capital expenditures in aggregate
amount exceeding $50,000; or
(o) except in the ordinary course of business, terminated, failed to
renew, amended or entered into any contract or other agreement of
a type required to be disclosed pursuant to SECTION 3.16.
3.20 LICENSES AND PERMITS. All of the licenses, concessions and permits
issued to WORLDWIDE are set forth in SECTION 3.20 of the WORLDWIDE
Disclosure Schedule. WORLDWIDE has not received any notice of any claim
of revocation of any such licenses, concessions, and permits and has no
knowledge of any event, which would be likely to give rise to such a
claim.
3.21 BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out by WORLDWIDE
directly with XXXXXXX without the intervention of any other person on
behalf of WORLDWIDE in such manner as to give rise to any valid claim by
any person against WORLDWIDE or XXXXXXX for a finder's fee, brokerage
commission or similar payment.
3.22 DISCLOSURE. To the knowledge of WORLDWIDE, neither this Agreement, nor
any Schedule or Exhibit to this Agreement, contains an untrue statement
of a material fact or omits a material fact necessary to make the
statements contained herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Except as expressly set forth and specifically identified by the section number
of this Agreement in the schedule delivered by XXXXXXX to WORLDWIDE
contemporaneously with the execution of this Agreement (the "XXXXXXX DISCLOSURE
SCHEDULE"), XXXXXXX represents, warrants, and covenants to WORLDWIDE as follows:
Share Exchange Agreement - Page 11
4.1 ORGANIZATION AND QUALIFICATION. XXXXXXX is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada and has all requisite corporate power and authority to (a) own,
lease and operate its properties and assets as they are now owned,
leased and operated and (b) carry on its business as currently conducted
and as proposed to be conducted. XXXXXXX is duly qualified or licensed
to do business in each jurisdiction in which the failure to be so
qualified or licensed could have a Material Effect.
4.2 CAPITALIZATION. The issued and outstanding capital stock of XXXXXXX
consists of 4,347,200 shares of common stock, $0.001 par value per
share. All of the issued and outstanding shares of capital stock of
XXXXXXX are validly issued, fully paid, and nonassessable, and none of
such shares has been issued in violation of the preemptive rights of any
person. The XXXXXXX Common Stock shall be validly issued, fully paid,
and nonassessable. XXXXXXX shall have effected a one-for-two reverse
split of its issued and outstanding common stock prior to Closing.
4.3 SUBSIDIARIES AND AFFILIATES. Except as set forth in SECTION 4.3 of the
XXXXXXX Disclosure Schedule, XXXXXXX does not own or hold, directly or
indirectly, any equity, debt, or other interest in any entity or
business or any option to acquire any such interest.
4.4 OPTIONS OR OTHER RIGHTS. Except as set forth in SECTION 4.4 of the
XXXXXXX Disclosure Schedule, no options, warrants, calls, commitments or
other rights to acquire, sell or issue shares of capital stock or other
equity interests of XXXXXXX whether upon conversion of other securities
or otherwise, are issued or outstanding except as set forth in the
XXXXXXX Disclosure Schedule, and there is no agreement or understanding
with respect to the voting of such capital stock or other equity
interests.
4.5 VALIDITY AND EXECUTION OF AGREEMENT. XXXXXXX has the full legal right,
capacity, and power required to enter into, execute, and deliver this
Agreement and to carry out the transactions contemplated, subject to
approval of the shareholders of XXXXXXX and the terms set forth in this
Agreement. This Agreement has been duly and validly executed on behalf
of XXXXXXX and is a valid and binding obligation of XXXXXXX, enforceable
in accordance with its terms, subject to the qualification that
enforcement of the rights and remedies created hereby is subject to (a)
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and
(b) general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
4.6 NO CONFLICT. Except as set forth in SECTION 4.6 of the XXXXXXX
Disclosure Schedule and to the knowledge of XXXXXXX, none of the
execution, delivery, or performance of this Agreement does or will: (a)
result in any violation or be in conflict with or constitute a default
under any term or provision of the Articles of Incorporation or bylaws
of XXXXXXX or any term or provision of any judgment, decree, order,
statute, injunction, rule, or regulation applicable to XXXXXXX that
would cause a Material Effect, or of any material note, bond, mortgage,
indenture, lease, license, franchise, agreement, or other instrument or
obligation to which XXXXXXX is bound that would cause a Material Effect;
(b) result in the creation of any Encumbrance upon any of the properties
or assets of XXXXXXX pursuant to
Share Exchange Agreement - Page 12
any such term or provision that would cause a Material Effect; or (c)
constitute a default under, terminate, accelerate, amend or modify, or
give any party the right to terminate, accelerate, amend, modify,
abandon, or refuse to perform or comply with, any material contract,
agreement, arrangement, commitment, or plan to which XXXXXXX is a party,
or by which XXXXXXX or any of its properties or assets may be subject or
bound that would cause a Material Effect.
4.7 CONSENTS AND APPROVALS. No federal, state, or other regulatory approvals
are required to be obtained, nor any regulatory requirements complied
with, by XXXXXXX in connection with the Share Exchange.
4.8 VIOLATION OF LAWS, PERMITS, ETC.
(a) XXXXXXX is not in violation of any term or provision of its
Articles of Incorporation or bylaws, or of any material term or
provision of any judgment, decree, order, statute, law,
injunction, rule, ordinance, or governmental regulation that is
applicable to it and where the failure to comply with which would
have a Material Effect.
(b) XXXXXXX has maintained in full force and effect all certificates,
licenses, and permits material to the conduct of its business, and
has not received any notification that any revocation or
limitation thereof is threatened or pending.
4.9 BOOKS AND RECORDS. The books and records of XXXXXXX (including, without
limitation, the books of account, minute books, and stock record books)
are complete and correct in all material respects and have been
maintained in accordance with sound business practices. The minute books
of XXXXXXX are complete and current in all material respects and, as
applicable, accurately reflect all actions taken by the shareholders and
the board of directors of XXXXXXX since the date of inception of
XXXXXXX, and all signatures contained therein are the true signatures of
the persons whose signatures they purport to be.
4.10 XXXXXXX FINANCIAL STATEMENTS. The unaudited balance sheet of XXXXXXX as
of March 31, 2005, and the related unaudited statement of income and
statement of cash flows for the three months then ended, as well as the
unaudited balance sheet as of December 31, 2004, and the related
unaudited statements of income and statements of cash flows for the two
years then ended (the "XXXXXXX FINANCIAL STATEMENTS"), true and complete
copies of which have been delivered to WORLDWIDE, present fairly, in all
material respects, the financial position of XXXXXXX as at such dates
and the results of operations of WORLDWIDE for the periods then ended,
in accordance with GAAP consistently applied for the periods covered
thereby.
4.11 UNDISCLOSED LIABILITIES. To the knowledge of XXXXXXX, XXXXXXX does not
have any Liability of a kind required by GAAP to be set forth on a
financial statement that is not fully and adequately reflected or
reserved against on the XXXXXXX Financial Statements. XXXXXXX does not
have any Liabilities, whether or not of a kind required by GAAP to be
set forth on a financial statement, other than (a) Liabilities incurred
in the ordinary course of
Share Exchange Agreement - Page 13
business since the date of the latest balance sheet included in the
XXXXXXX Financial Statements that are consistent with past practice and
are included in the latest XXXXXXX Financial Statements, (b) Liabilities
that are fully reflected on or reserved against on the latest balance
sheet included in the XXXXXXX Financial Statements, or (c) as
specifically disclosed in the XXXXXXX Financial Statements.
4.12 TITLE TO PROPERTY; ENCUMBRANCES. XXXXXXX has good and indefeasible title
to and other legal right to use all properties and assets, real,
personal and mixed, tangible and intangible, reflected as owned on the
latest balance sheet included in the XXXXXXX Financial Statements or
acquired after the date of such balance sheet, except for properties and
assets disposed of in accordance with customary practice in the business
or disposed of for full and fair value since the date of such balance
sheet in the ordinary course of business consistent with past practice
and except for matters that would not have a Material Effect.
4.13 TAXES. All Tax Returns, reports and declarations of estimated tax or
estimated tax deposit forms required to be filed by XXXXXXX have been
duly and timely filed; XXXXXXX has paid all Taxes which have become due
whether pursuant to such returns or any assessment received by it or
otherwise, and has paid all installments of estimated Taxes due; and all
Taxes which XXXXXXX is required by law to withhold or to collect have
been duly withheld and collected, and have been paid over to the proper
Governmental or Regulatory Body. There are no tax liens upon any of the
assets or properties of XXXXXXX except for Liens for Taxes not yet due.
XXXXXXX is not a party to any Settlement Agreement, and XXXXXXX does not
have any obligation to make payments under any Settlement Agreement.
4.14 LITIGATION.
(a) There is no action, proceeding, investigation, or inquiry pending
or, to the best of XXXXXXX'x knowledge, threatened (i) against or
affecting any of XXXXXXX'x assets or business that, if determined
adversely to XXXXXXX, would result in a Material Effect or (ii)
that questions this Agreement or any action contemplated by this
Agreement or in connection with the Share Exchange.
(b) XXXXXXX has no knowledge of any state of facts or of the
occurrence or nonoccurrence of any event or group of related
events, that should reasonably cause XXXXXXX to determine that
there exists any basis for any material claim against XXXXXXX for
any of the matters described in paragraph (a) above.
4.15 CONTRACTS AND OTHER AGREEMENTS. XXXXXXX has made available to WORLDWIDE
complete and correct copies of all material written agreements,
contracts, and commitments, together with all amendments thereto, and
accurate (in all material respects) descriptions of all material oral
agreements. Such agreements, contracts, and commitments are in full
force and effect, and, to the best of XXXXXXX'x knowledge, all other
parties to such agreements, contracts, and commitments have performed
all obligations required to be performed by them to date thereunder in
all material respects and are not in default thereunder in any material
respect.
Share Exchange Agreement - Page 14
4.16 COMPENSATION ARRANGEMENTS; OFFICERS AND DIRECTORS. SECTION 4.16 to the
XXXXXXX Disclosure Schedule sets forth: (a) the names of all present
officers and directors of XXXXXXX and current annual salary, including
any promised, expected or customary bonus or such other amount, and (b)
the names and titles of all directors and officers of XXXXXXX. XXXXXXX
has not made a commitment or agreement (verbally or in writing) to
increase the compensation or to modify the conditions or terms of
employment of any person listed in SECTION 4.16 to the XXXXXXX
Disclosure Schedule. To the knowledge of XXXXXXX, none of such persons
has made a threat to XXXXXXX to terminate such person's relationship
with XXXXXXX.
4.17 ERISA. Except as set forth in SECTION 4.17 to the XXXXXXX Disclosure
Schedule, there are no employee benefit plans as defined in ERISA
("PLANS") maintained for the benefit of, or covering, any employee,
former employee, independent contractor or former independent contractor
of XXXXXXX, or their dependents or their beneficiaries, or otherwise,
now or heretofore contributed to by XXXXXXX, and no such Plan is or has
ever been subject to ERISA.
4.18 OPERATIONS. Except as expressly authorized by this Agreement, and except
as set forth in SECTION 4.18 to the XXXXXXX Disclosure Schedule, since
the date of the latest XXXXXXX Financial Statements, XXXXXXX has not:
(a) amended its Articles of Incorporation or By-Laws or merged with or
into or consolidated with any other entity, or changed or agreed
to rearrange in any manner the character of the business of
XXXXXXX;
(b) issued, sold or purchased options or rights to subscribe to, or
entered into any contracts or commitments to issue, sell or
purchase, any shares of its capital stock or other equity
interests except in the ordinary course of business and consistent
with past practices, and except for the agreement to issue 323,776
pre-reverse split shares of common stock to extinguish all debt
owed to Xxxxxx X. Xxxxxxxx;
(c) issued any note, bond or other debt security, created, incurred or
assumed any indebtedness for borrowed money other than in the
ordinary course of business in connection with trade payables, or
guaranteed any indebtedness for borrowed money or any capitalized
lease obligation;
(d) declared, set aside or paid any dividends or declared or made any
other distributions of any kind to the shareholders, or made any
direct or indirect redemption, retirement, purchase or other
acquisition of any shares of its capital stock or other equity
interests;
(e) knowingly waived any right of material value to the business of
XXXXXXX;
(f) made any change in its accounting methods or practices or made any
changes in depreciation or amortization policies or rates adopted
by it or made any material
Share Exchange Agreement - Page 15
write-down of inventory or material write-off as uncorrectable of
accounts receivable;
(g) made any wage or salary increase or other compensation payable or
to become payable or bonus, or increase in any other direct or
indirect compensation, for or to any of its officers, directors,
employees, consultants, agents or other representatives, or any
accrual for or commitment or agreement to make or pay the same,
other than increases made in the ordinary course consistent with
past practice;
(h) entered into any transactions with any of its affiliates,
shareholders, officers, directors, employees, consultants, agents
or other representatives (other than employment arrangements made
in the ordinary course of business consistent with past practice),
or any affiliate of any shareholder, officer, director,
consultant, employee, agent or other representative, except for
the agreement to issue 323,776 pre-reverse split shares of common
stock to extinguish all debt owed to Xxxxxx X. Xxxxxxxx;
(i) made any payment or commitment to pay any severance or termination
pay to any person or any of its officers, directors, employees,
consultants, agents or other representatives, other than payments
or commitments to pay such persons or their officers, directors,
employees in the ordinary course of business;
(j) except in the ordinary course of business, incurred or assumed any
debt, obligation or liability (whether absolute or contingent and
whether or not currently due and payable);
(k) except in the ordinary course of business, made any acquisition of
all or any part of the assets, properties, capital stock or
business of any other person;
(l) except in the ordinary course of business and except for the
agreement to issue 323,776 pre-reverse split shares of common
stock to extinguish all debt owed to Xxxxxx X. Xxxxxxxx, paid,
directly or indirectly, any of its Liabilities before the same
became due in accordance with their terms or otherwise than in the
ordinary course of business, except to obtain the benefit of
discounts available for early payment;
(m) except in the ordinary course of business, created, incurred or
assumed any indebtedness for borrowed money, or guaranteed any
indebtedness for borrowed money or any capitalized lease
obligation, in each case in excess of $50,000 individually or in
the aggregate;
(n) except in the ordinary course of business, made any capital
expenditures or commitments for capital expenditures in aggregate
amount exceeding $50,000; or
(o) except in the ordinary course of business, terminated, failed to
renew, amended or entered into any contract or other agreement of
a type required to be disclosed pursuant to SECTION 3.16.
Share Exchange Agreement - Page 16
4.19 BROKERS. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out by WORLDWIDE
directly with XXXXXXX without the intervention of any other person on
behalf of XXXXXXX in such manner as to give rise to any valid claim by
any person against WORLDWIDE or XXXXXXX for a finder's fee, brokerage
commission or similar payment.
4.20 APPROVAL OF SHARE EXCHANGE. The board of directors of XXXXXXX has
approved the Share Exchange without reservation or qualification.
4.21 INVESTMENT COMPANY. XXXXXXX is not an investment company within the
meaning of Section 3 of the Investment Company Act.
4.22 TRADING STATUS. The XXXXXXX Common Stock is quoted on the "Pink Sheets"
under the symbol "BNTT."
4.23 DISCLOSURE. To the knowledge of XXXXXXX, neither this Agreement, nor any
Schedule or Exhibit to this Agreement, contains an untrue statement of a
material fact or omits a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE V
ACTIONS PRIOR TO CLOSING
5.1 CORPORATE EXAMINATIONS AND INVESTIGATIONS. At or prior to the Closing
Date, each of XXXXXXX and WORLDWIDE shall be entitled to make such
investigation of the assets, properties, business and operations of the
other and such examination of the books, records, Tax Returns, financial
condition and operations of the other as each may wish. Any such
investigation and examination shall be conducted at reasonable times and
under reasonable circumstances and XXXXXXX and WORLDWIDE shall cooperate
fully therein. In order that each of XXXXXXX and WORLDWIDE may have full
opportunity to make such a business, accounting and legal review,
examination or investigation as it may wish of the business and affairs
of the other, XXXXXXX or WORLDWIDE, as the case may be, shall furnish to
the other during such period all such information and copies of such
documents concerning its affairs as XXXXXXX or WORLDWIDE may reasonably
request and cause its officers, employees, consultants, agents,
accountants and attorneys to cooperate fully and provide all material
facts affecting its financial condition and business operations. Until
the Closing and if the Closing shall not occur, thereafter, XXXXXXX,
WORLDWIDE, and its respective affiliates shall keep confidential and
shall not use in any manner inconsistent with the transactions
contemplated by this Agreement and after termination of this Agreement,
XXXXXXX, WORLDWIDE, and its respective affiliates shall not disclose,
nor use for their own benefit, any information or documents obtained
from the other concerning its assets, properties, business and
operations, unless (a) readily ascertainable from public or published
information, or trade sources, (b) received from a third party not under
an obligation to XXXXXXX or WORLDWIDE, as the case may be, to keep such
information confidential or (c) required by any Law or Order. If this
transaction does not close for any reason,
Share Exchange Agreement - Page 17
XXXXXXX, WORLDWIDE, and its respective affiliates shall return or
destroy all such confidential information and compilations thereof
as is practicable, and shall certify such destruction or return to
XXXXXXX or WORLDWIDE, as the case may be.
5.2 CONDUCT AND PRESERVATION OF BUSINESS OF XXXXXXX. From the date hereof
through the Closing Date, XXXXXXX shall cause its corporate existence to
be continued in the ordinary course in the same manner as it has been
conducted since it inception. XXXXXXX covenants that, except with the
prior written consent of WORLDWIDE, which consent shall not be
unreasonably withheld, XXXXXXX will not:
(a) Do any of the restricted acts set forth in SECTION 4.18 hereof, or
enter into any agreement of a nature set forth in SECTION 4.15
hereof; or
(b) Enter into any transaction other than in the ordinary course of
business.
5.3 CONDUCT AND PRESERVATION OF BUSINESS OF WORLDWIDE. From the date hereof
through the Closing Date, WORLDWIDE shall cause its business to be
conducted in the ordinary course and in the same manner as it has been
conducted since its inception. WORLDWIDE covenants that, except with the
prior written consent of XXXXXXX, which consent shall not be
unreasonably withheld, WORLDWIDE will not:
(a) Do any of the restricted acts set forth in SECTION 3.19 hereof, or
enter into any agreement of a nature set forth in SECTION 3.16
hereof, except for a definitive agreement with Cleave Global
e-Services Limited, as contemplated by the Letter of Intent dated
March 10, 2005; or
(b) Enter into any transaction other than in the ordinary course of
business.
Further, WORLDWIDE shall use commercially reasonable efforts to (i)
preserve intact its business, assets, properties and organizations, (ii)
keep available the services of its present officers, employees,
consultants and agents; and (iii) maintain its present suppliers and
customers and preserve its goodwill.
5.4 ADVICE OF CHANGES. WORLDWIDE will promptly advise XXXXXXX in writing
from time to time prior to the Closing with respect to any matter
hereafter arising and known to them that, if existing or occurring at
the date of this Agreement, would have been required to be set forth or
described in the WORLDWIDE Disclosure Schedule or would have resulted in
any representation of WORLDWIDE in this Agreement being untrue. XXXXXXX
will promptly advise WORLDWIDE in writing from time to time prior to the
Closing with respect to any matter hereafter arising and known to it
that, if existing or occurring at the date of this Agreement, would have
been required to be set forth or described in the XXXXXXX Disclosure
Schedule or would have resulted in any representation of XXXXXXX in this
Agreement being untrue in any material respect.
Share Exchange Agreement - Page 18
5.5 PINK SHEETS. XXXXXXX will use its best efforts to maintain the listing
on the Pink Sheets of the XXXXXXX Common Stock. XXXXXXX shall take the
necessary action to notify NASD Regulation of the Share Exchange in a
timely manner.
5.6 XXXXXXX SHAREHOLDER APPROVAL. XXXXXXX shall, as expeditiously as
possible, take all actions necessary to obtain the approval of its
shareholders of the transactions contemplated by this Agreement as
required by the laws of Nevada.
5.7 SHAREHOLDER APPROVAL. WORLDWIDE shall, as expeditiously as possible,
take all actions necessary to obtain the approval of its shareholders of
the transactions contemplated by this Agreement as required by the laws
of Colorado.
5.8 OTHER AGREEMENTS. WORLDWIDE and XXXXXXX agree to take, or cause to be
taken, all actions and to do, or cause to be done, all things reasonably
necessary, proper or advisable to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement,
including, without limitation, the obtaining of all necessary waivers,
consents and approvals and the effecting of all necessary registrations
and filings, including, but not limited to, submissions of information
requested by Governmental or Regulatory Bodies and any other persons
required to be obtained by them for the consummation of the closing and
the continuance in full force and effect of the permits, contracts and
other agreements set forth on the Schedules to this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF XXXXXXX TO COMPLETE THE
CLOSING. The obligations of XXXXXXX to enter into and complete the
Closing are subject to the fulfillment of the following conditions, any
one or more of which may be waived by XXXXXXX:
(a) (i) All of the terms, covenants, and conditions of this Agreement
to be complied with or performed by WORLDWIDE at or before the
Closing shall have been duly complied with and performed in all
material respects, (ii) the representations and warranties of
WORLDWIDE set forth in Article III shall be true in all material
respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on
and as of the Closing, and (iii) XXXXXXX shall have received a
certificate to such effect from WORLDWIDE, specifically
referencing SECTIONS 3.7 AND 3.8.
(b) All consents, waivers, approvals, licenses, authorizations of, or
filings or declarations with third parties or Governmental or
Regulatory Bodies required to be obtained by WORLDWIDE in order to
permit the transactions contemplated by this Agreement to be
consummated in accordance with agreements and court orders
applicable to WORLDWIDE and applicable governmental laws, rules,
regulations and agreements shall have been obtained and any
waiting period thereunder shall have expired or
Share Exchange Agreement - Page 19
been terminated, and XXXXXXX shall have received a certificate
from WORLDWIDE to such effect.
(c) All actions, proceedings, instruments, and documents in connection
with the consummation of the transactions contemplated by this
Agreement, including the forms of all documents, legal matters,
opinions, and procedures in connection therewith, shall have been
approved in form and substance by counsel for XXXXXXX, which
approval shall not be unreasonably withheld.
(d) WORLDWIDE shall have furnished such certificates to evidence
compliance with the conditions set forth in this Article, as may
be reasonably requested by XXXXXXX or its counsel.
(e) WORLDWIDE shall not have suffered any Material Effect.
(f) No material information or data provided or made available to
XXXXXXX by or on behalf of WORLDWIDE shall be incorrect in any
material respect.
(g) No investigation and no suit, action, or proceeding before any
court or any governmental or regulatory authority shall be pending
or threatened by any state or federal governmental or regulatory
authority, against WORLDWIDE or any of its affiliates, associates,
officers, or directors seeking to restrain, prevent, or change in
any material respect the transactions contemplated hereby or
seeking damages in connection with such transactions that are
material to WORLDWIDE.
(h) All of the WORLDWIDE Shareholders approving the Share Exchange
shall have acknowledged that the shares of XXXXXXX Common Stock
are restricted securities under the Securities Act and represent
that such WORLDWIDE Shareholder (i) is acquiring the XXXXXXX
Common Stock for his own account without a view to distribution
within the meaning of the Securities Act; (ii) has received from
XXXXXXX its filings with the Securities and Exchange Commission
and all other information that he has deemed necessary to make an
informed investment decision with respect to an investment in
XXXXXXX in general and the XXXXXXX Common Stock in particular;
(iii) is financially able to bear the economic risks of an
investment in XXXXXXX; and (iv) has such knowledge and experience
in financial and business matters in general and with respect to
investments of a nature similar to the XXXXXXX Common Stock so as
to be capable, by reason of such knowledge and experience, of
evaluating the merits and risks of, and making an informed
business decision with regard to, the acquisition of the XXXXXXX
Common Stock. Such acknowledgment shall also indicate that each
WORLDWIDE Shareholder understands and agrees that the certificates
evidencing the XXXXXXX Common Stock shall bear the usual
restrictive legend pertaining to Rule 144 under the Securities Act
and that the XXXXXXX Common Stock will not be transferable except
under an effective registration statement under the Securities Act
or in accordance with available exemptions from registration under
the Securities Act. Such acknowledgment shall be substantially in
the form attached hereto as EXHIBIT A.
Share Exchange Agreement - Page 20
(i) WORLDWIDE shall have received the necessary approvals from at
least 90% of its shareholders to proceed with the transactions
contemplated herein.
(j) Management of XXXXXXX shall have entered into a one-year lock-up
agreement with respect to the XXXXXXX Common Stock they will
receive at Closing.
6.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF WORLDWIDE TO COMPLETE THE
CLOSING. The obligations of WORLDWIDE to enter into and complete the
Closing are subject to the fulfillment on or prior to the Closing Date,
of the following conditions, any one or more of which may be waived by
WORLDWIDE:
(a) (i) All of the terms, covenants, and conditions of this Agreement
to be complied with or performed by XXXXXXX at or before the
Closing shall have been duly complied with and performed in all
material respects, (ii) the representations and warranties of
XXXXXXX set forth in Article IV shall be true in all material
respects on and as of the Closing Date with the same force and
effect as if such representations and warranties had been made on
and as of the Closing, and (iii) WORLDWIDE shall have received a
certificate to such effect from XXXXXXX, specifically referencing
SECTIONS 4.6 AND 4.7. XXXXXXX shall provide a certificate from its
transfer agent as to the representations contained in SECTION 4.2.
(b) All consents, waivers, approvals, licenses, authorizations of, or
filings or declarations with third parties or Governmental or
Regulatory Bodies required to be obtained by XXXXXXX in order to
permit the transactions contemplated by this Agreement to be
consummated in accordance with agreements and court orders
applicable to XXXXXXX and applicable governmental laws, rules,
regulations and agreements shall have been obtained and any
waiting period thereunder shall have expired or been terminated,
and WORLDWIDE shall have received a certificate from XXXXXXX to
such effect.
(c) All actions, proceedings, instruments, and documents in connection
with the consummation of the transactions contemplated by this
Agreement, including the forms of all documents, legal matters,
opinions, and procedures in connection therewith, shall have been
approved in form and substance by counsel for WORLDWIDE, which
approval shall not be unreasonably withheld.
(d) XXXXXXX shall have furnished such certificates to evidence
compliance with the conditions set forth in this Article, as may
be reasonably requested by WORLDWIDE or its counsel.
(e) XXXXXXX shall not have suffered any Material Effect.
(f) No material information or data provided or made available to
WORLDWIDE by or on behalf of XXXXXXX shall be incorrect in any
material respect.
Share Exchange Agreement - Page 21
(g) No investigation and no suit, action, or proceeding before any
court or any governmental or regulatory authority shall be pending
or threatened by any state or federal governmental or regulatory
authority, against XXXXXXX or any of its affiliates, associates,
officers, or directors seeking to restrain, prevent, or change in
any material respect the transactions contemplated hereby or
seeking damages in connection with such transactions that are
material to XXXXXXX.
(h) The XXXXXXX Common Stock shall be continue to be quoted on the
Pink Sheets.
(i) WORLDWIDE Shareholders holding no more than 10% of the issued and
outstanding WORLDWIDE common stock shall have perfected appraisal
rights for their shares in accordance with the Colorado Law.
(j) XXXXXXX shall have amended its Articles of Incorporation to
authorize at least 1,000,000 shares of preferred stock.
(k) XXXXXXX shall have effected a one-for-two reverse split on its
issued and outstanding shares of common stock.
(l) The shareholders of XXXXXXX shall have adopted a stock option plan
satisfactory to WORLDWIDE.
(m) The principal shareholders of XXXXXXX shall have entered into a
one-year lock-up agreement, a proxy to allow one or more designees
of WORLDWIDE to vote their shares for a period of one year, and a
one-year option to allow one or more designees of WORLDWIDE to
purchase their shares at $0.20 per post-reverse stock split share,
if such shareholders so choose to sell.
(n) XXXXXXX shall have issued 323,776 pre-reverse split shares of
common stock to extinguish all debt owed to Xxxxxx X. Xxxxxxxx
ARTICLE VII
POST-CLOSING COVENANTS
The parties covenant to take the following actions after the Closing Date:
7.1 FURTHER INFORMATION. Following the Closing, each party will afford to
the other party, its counsel and its accountants, during normal business
hours, reasonable access to the books, records and other data of
WORLDWIDE or XXXXXXX, as the case may be, relating to the business of
WORLDWIDE or XXXXXXX in their possession with respect to periods prior
to the Closing and the right to make copies and extracts therefrom, to
the extent that such access may be reasonably required by the requesting
party (a) to facilitate the investigation, litigation and final
disposition of any claims which may have been or may be made against any
party or its affiliates and (b) for any other reasonable business
purpose.
Share Exchange Agreement - Page 22
7.2 RECORD RETENTION. Each party agrees that for a period of not less than
five years following the Closing Date, such party shall not destroy or
otherwise dispose of any of the Books and Records of WORLDWIDE or
XXXXXXX relating to the business of WORLDWIDE or XXXXXXX in his or its
possession with respect to periods prior to the Closing Date. Each party
shall have the right to destroy all or part of such Books and Records
after the fifth anniversary of the Closing Date or, at an earlier time
by giving each other party hereto 30 days prior written notice of such
intended disposition and by offering to deliver to the other party or
parties, at the other party's or parties' expense, custody of such Books
and Records as such party may intend to destroy.
7.3 POST-CLOSING ASSISTANCE. WORLDWIDE and XXXXXXX will provide each other
with such assistance as may reasonably be requested in connection with
the preparation of any Tax Return, any audit or other examination by any
taxing authority, or any judicial or administrative proceedings relating
to liability for Taxes, and each will retain and provide the requesting
party with any records or information that may be reasonably relevant to
such return, audit or examination, proceedings or determination. The
party requesting assistance shall reimburse the other party for
reasonable out-of-pocket expenses incurred in providing such assistance.
Any information obtained pursuant to this SECTION 7.3 or pursuant to any
other Section hereof providing for the sharing of information or the
review of any Tax Return or other schedule relating to Taxes shall be
kept confidential by the parties hereto.
ARTICLE VIII
SURVIVAL
8.1 SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES. Notwithstanding
any investigation conducted or notice or knowledge obtained by or on
behalf of any party hereto, each agreement in this Agreement shall
survive the Closing without limitation as to time until fully performed
and each representation and warranty in this Agreement or in the
Exhibits, Schedules or certificates delivered pursuant to this Agreement
shall survive the Closing for a period of two years (other than the
representations and warranties contained in SECTION 3.5 which shall
survive the Closing without limitation as to time, and other than the
representations and warranties contained in SECTION 3.14, which shall
survive the Closing until the earlier of (i) three and one-half years
from the Closing Date and (ii) three years following the date on which
XXXXXXX files the Tax Return relating to the taxable period from January
1, 2005 through the Closing Date). Notice must be given to the party
from whom indemnification is sought of any claim for indemnification
under Article VIII prior to the termination of the relevant survival
period.
ARTICLE IX
TERMINATION OF AGREEMENT
9.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing as follows:
Share Exchange Agreement - Page 23
(a) by mutual written consent of XXXXXXX and WORLDWIDE;
(b) by XXXXXXX or WORLDWIDE by written notice to the other party
hereto, if the Closing shall not have occurred on or prior to the
close of business on June 30, 2005 (unless such event has been
caused by a breach of this Agreement by the party seeking such
termination);
(c) by XXXXXXX or by WORLDWIDE if a Governmental or Regulatory Body
has permanently enjoined or prohibited consummation of the Share
Exchange and such court or government action is final and
nonappealable;
(d) by XXXXXXX if WORLDWIDE has failed to comply in any material
respect with any of its covenants or agreements under this
Agreement that are required to be complied with prior to the date
of such termination; or
(e) by WORLDWIDE if XXXXXXX has failed to comply in any material
respect with any of its covenants or agreements under this
Agreement that are required to be complied with prior to the date
of such termination.
Should WORLDWIDE terminate this Agreement for any reason other than a
default by XXXXXXX as described in SECTION 9.1(E) hereof, WORLDWIDE
shall be liable for all damages caused by the failure to close.
Similarly, if XXXXXXX should terminate this Agreement for any reason
other than a default by WORLDWIDE as described in SECTION 9.1(D) hereof,
XXXXXXX shall be liable for all damages caused by the failure to close.
9.2 SURVIVAL AFTER TERMINATION. If this Agreement is terminated pursuant to
SECTION 9.1, (a) this Agreement shall become null and void and of no
further force and effect, except for the provisions of SECTION 5.1
relating to the obligation to keep confidential certain information and
(b) there shall be no liability on the part of WORLDWIDE or XXXXXXX or
their respective affiliates.
ARTICLE X
MISCELLANEOUS
10.1 EXPENSES. WORLDWIDE shall be responsible for the legal and accounting
fees in connection with the Share Exchange.
10.2 FURTHER ASSURANCES. At any time and from time to time after the Closing
Date at the request of XXXXXXX, and without further consideration,
WORLDWIDE will execute and deliver such other instruments of sale,
transfer, conveyance, assignment and confirmation and take such other
action as XXXXXXX may reasonably deem necessary or desirable in order to
transfer, convey and assign the Shares to XXXXXXX and to assist XXXXXXX
in exercising all rights with respect thereto. The parties shall use
their best efforts to fulfill or obtain the fulfillment of the
conditions to the Closing, including, without limitation, the
Share Exchange Agreement - Page 24
execution and delivery of any document or other papers, the execution
and delivery of which are conditions precedent to the Closing.
10.3 NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
shall be given personally, sent by facsimile transmission or sent by
prepaid air courier or certified or express mail, postage prepaid. Any
such notice shall be deemed to have been given (a) when received, if
delivered in person, sent by facsimile transmission and confirmed in
writing within three (3) business days thereafter or sent by prepaid air
courier or (b) three (3) business days following the mailing thereof, if
mailed by certified first class mail, postage prepaid, return receipt
requested, in any such case as follows (or to such other address or
addresses as a party may have advised the other in the manner provided
in this SECTION 10.3):
If to WORLDWIDE:
Worldwide Business Solutions Incorporated
000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X.X. Xxxxxxx, President
with a copy to:
Xxxx Xxxx Xxxx Xxxxxxxxxx & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
If to XXXXXXX:
Xxxxxxx Energy Corporation
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, President
10.4 MEDIATION. The parties hereto encourage the prompt and equitable
settlement of all controversies or claims (a "DISPUTE") between or among
the parties and their affiliates including but not limited to those
arising out of or relating to this Agreement or the transactions
contemplated hereby. At any time, either party can give the other
written notice that it desires to settle a Dispute. Within 10 days of
delivery of such notice, the parties agree to cause their officers
having authority to resolve such differences to meet for two out of four
continuous days (the "NEGOTIATION PERIOD"), the parties agree to submit
their Dispute to a mediator to work with them to resolve their
differences. Such mediator shall be selected by mutual agreement of the
parties. The parties shall participate in the mediation proceeding in
good faith with the intention to settle. The mediation shall be
conducted pursuant to the rules generally used by the mediator in the
mediator's practice, which rules may be modified or amended with the
written consent of the parties. No later than three business days prior
to the mediation, each party shall deliver to the mediator all
information reasonably required for
Share Exchange Agreement - Page 25
the mediator to understand the Dispute and the issues presented. The
mediation shall be determined upon the first to occur of the following:
(i) by the execution of a settlement agreement resolving the Dispute by
the parties; (ii) by a written declaration of the mediator to the effect
that further efforts at mediation are no longer worthwhile; or (iii)
after the completion of two full days of mediation effect that mediation
proceedings are terminated. No party shall xxx any other party hereto in
connection with any Dispute, except for enforcement of the negotiation
and mediation process set forth herein, and the arbitration provisions
set forth in SECTION 10.5 hereof shall not be applicable, in each case,
prior to termination of the Negotiation Period and of the mediation as
provided above.
10.5 ARBITRATION. Any dispute, controversy, or claim arising out of, relating
to, or in connection with, this Agreement or the agreements or
transactions contemplated by this Agreement shall be finally settled by
binding arbitration. The arbitration shall be conducted and the
arbitrator chosen in accordance with the rule of the American
Arbitration Association in effect at the time of the arbitration, except
as they may be modified herein or by mutual agreement of XXXXXXX and
WORLDWIDE. In connection with any such arbitration, each party shall be
afforded the opportunity to conduct discovery in accordance with the
Federal Rules of Civil Procedure.
(a) The seat of the arbitration shall be in Denver, Colorado. Each of
WORLDWIDE and XXXXXXX hereby irrevocably submits to the
jurisdiction of the arbitrator in Denver, Colorado, and waives any
defense in an arbitration based upon any claim that such party is
not subject personally to the jurisdiction of such arbitrator,
that such arbitration is brought in an inconvenient format, or
that such venue is improper.
(b) The arbitral award shall be in writing and shall be final and
binding on each of the parties to this Agreement. The award may
include an award of costs, including reasonable attorneys' fees
and disbursements. Judgment upon the award may be entered by any
court having jurisdiction thereof or having jurisdiction over the
parties or their assets. WORLDWIDE and XXXXXXX acknowledge and
agree that by agreeing to these arbitration provisions each of the
parties hereto is waiving any right that such party may have to a
jury trial with respect to the resolution of any dispute under
this Agreement or the agreements or transactions contemplated
hereby.
10.6 PUBLICITY. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be made without
advance approval thereof by XXXXXXX and WORLDWIDE except as may be
required by applicable law or the rules and regulations of the
applicable regulatory authorities.
10.7 ENTIRE AGREEMENT. This Agreement (including the Exhibits and Schedules)
and the agreements, certificates and other documents delivered pursuant
to this Agreement contain the entire agreement among the parties with
respect to the transactions described herein, and supersede all prior
agreements, written or oral, with respect thereto.
10.8 WAIVERS AND AMENDMENTS. This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only
by a written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay
Share Exchange Agreement - Page 26
on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof
10.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado without regard to
principles of conflicts of law.
10.10 BINDING EFFECT, NO ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable by any party hereto
without the prior written consent of the other parties hereto except by
operation of law and any other purported assignment shall be null and
void.
10.11 COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of
a number of copies hereof each signed by less than all, but together
signed by all of the parties hereto.
10.12 EXHIBITS AND SCHEDULES. The Exhibits and Schedules are a part of this
Agreement as if fully set forth herein. All references herein to
Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall
otherwise require.
10.13 EFFECT OF DISCLOSURE ON SCHEDULES. Any item disclosed on any Schedule to
this Agreement shall only be deemed to be disclosed in connection with
(a) the specific representation and warranty to which such Schedule is
expressly referenced, (b) any specific representation and warranty which
expressly cross-references such Schedule and (c) any specific
representation and warranty to which any other Schedule to this
Agreement is expressly referenced if such other Schedule expressly
cross-references such Schedule.
10.14 HEADINGS. The headings in this Agreement are for reference only, and
shall not affect the interpretation of this Agreement.
10.15 SEVERABILITY OF PROVISIONS. If any provision or any portion of any
provision of this Agreement or the application of such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of this Agreement, or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]
Share Exchange Agreement - Page 27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXX:
XXXXXXX ENERGY CORPORATION
By: /s/ XXXXXX XXXXXXXX
-------------------------------------------
Xxxxxx Xxxxxxxx, President
WORLDWIDE:
WORLDWIDE BUSINESS SOLUTIONS
INCORPORATED
By: /s/ XXXXX X.X. XXXXXXX
-------------------------------------------
Xxxxx X.X. Xxxxxxx, President
Share Exchange Agreement - Page 28
SCHEDULE A
Share Exchange Agreement - Schedule A
