STOCK PURCHASE AGREEMENT
by and
among
ONLINE INTERNATIONAL CORPORATION,
and
Oselka Heled Trustee ltd
and
▇▇▇▇▇ Ltd.
and
SBFT & Co Ltd
and
Winhall Holding Ltd
and
▇▇▇▇▇▇▇ Global Ltd.
and
Gan ▇▇▇▇▇▇▇ Ltd.
and
Bee Byte Ltd.
and
Lotus Invest Ltd.
and
Seapen Corporation Ltd.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
Priory Marketing Ltd
and
FOREXCASH GLOBAL TRADING LTD.
Dated as of April 29, 2001
401016.8
30403-0999
2
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of the 29 day of April,
2001 (the "Agreement"), among Online International Corporation, a
corporation organized under thc laws of the State of Nevada ("OIC"), and
priory Marketing Ltd, a corporation organized under the laws of the Isle of
Man ("Parent"), and Oselka Heled Trustee ltd, and ▇▇▇▇▇ Ltd., and SBFT &
Co Ltd, and Winhall Holding Ltd, and ▇▇▇▇▇▇▇ Global Ltd., and Gan ▇▇▇▇▇▇▇
Ltd., and Bee Byte Ltd., and Lotus Invest Ltd., and Seapen Corporation Ltd.,
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, , the names and addresses of such holding companies
are set forth in column I of Exhibit A hereto (collectively, the "Holding
Companies" and each of them, a "Holding Company"), and Forexcash
Global Trading Ltd., a company organized under the laws of the State of
Israel ("Forexcash").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, OIC is obligated to file, and is filing, periodic reports with
the United States Securities and Exchange Commission ("Sec") pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended (the
Exchange Act"); and
WHEREAS, the Holding Companies own in the aggregate 100% of the
issued and outstanding shares of capital stock of Parent (the "Parent
Shares"), which in turn owns 99.7% of the issued and outstanding shares of
capital stock of Forexcash (the "Forexcash Shares");
WHEREAS, Forexcash is the owner of certain proprietary software
equipment, intellectual property and contracts;
WHEREAS, OIC is interested in acquiring Parent from the Holding
Companies by purchasing the Parent Shares from the Holding Companies, and
the Holding Companies are interested in selling the Parent Shares to OIC, all
as set forth in this Agreement; and
WHEREAS, in consideration for the sale of the Parent Shares to OIC, OIC
will issue and sell to the Holding Companies a combination of shares of Series
B Preferred Stock of OIC and shares of Common Stock (as defined below) of
OIC ,which, at Closing (as defined below) will constitute 62% of OIC's issued
and outstanding share capital, of all classes, on a fully diluted, as converted
and as exercised basis and a majority of the issued and outstanding voting
interest of OIC's share capital (the "Issue Shares").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions set forth
herein, the parties agree as follows:
ARTICLE I
CLOSING
1.1 Closing.
Upon the terms and subject to the conditions of this Agreement, the issue and
sale to, and the purchase by the Holding Companies of, the Issue Shares and
the sale to, and the purchase by OIC of, the Parent Shares, all as
contemplated by this Agreement, shall take place at a closing
(the "Closing") to be held at place and date agreed by the parties immediately
following the satisfaction or waiver of all the closing conditions set forth
herein, or at any other place or at any other time or on any other date as
the parties may mutually agree upon in writing. The date of the Closing
is sometimes referred to herein as the "Closing Date."
1.1 Deliveries at the Closing by OIC.
At the Closing, OIC will deliver or cause to be delivered to
the Holding Companies the following:
(a) stock certificates representing the Issue Shares registered in
the names of the Holding Companies, as set forth in Exhibit A
----------
to this Agreement;
(b) a copy of the shareholder register of OIC, certified by the
Secretary of OIC, listing the Holding Companies as the
registered owners and holders of the Issue Shares, according
to their respective holdings as set forth in Exhibit A;
----------
(c) copies, certified by the Secretary of OIC, of the resolutions of
the Board of Directors and the shareholders of OIC, as
applicable, approving (i) the issue and sale of the Issue
Shares to the Holding Companies, (ii) the performance by
OIC of all the transactions contemplated by this Agreement
and of its obligations and undertakings set forth in this
Agreement, and (iii) the amendment of the Articles of
Incorporation and by-laws of OIC (the "Incorporation Documents"),
as provided herein, together with copies of all the notices
required to be filed by OIC in connection with the issuance of
the Issue Shares ,and (iv) the preparation and filing of
the Registration Statement (as defined below) and OIC's
undertaking to use reasonable efforts to ensure that these
matters are completed and perfected in a timely manner
and in accordance with this agreement, all of the foregoing
in form and substance reasonably acceptable to the Holding
Companies;
(d) a certificate duly executed by OIC's CEO/President, dated as of
the Closing Date, stating that each of the obligations of OIC
required
to be performed by it at or prior to the Closing pursuant to the
terms of this Agreement has been duly performed and complied
with in all material respects, and the representations and
warranties of OIC contained in this Agreement are true
and correct in all material respects as of the date of this
Agreement and as of the Closing as though made at and as of
the Closing;
(e) an opinion of the law firm of Torys, counsel to OIC, in the form
attached to this Agreement as Exhibit B, dated as of the Closing
----------
Date;
(f) the resignations of all members of the Board of Directors of OIC;
(g) copies of the stock books, stock ledgers, minute books
and corporate seal of OIC;
(h) a duly executed stock option agreement, between OIC and ▇▇.
▇▇▇▇▇▇ Essenmini, in the form attached to this Agreement as
Exhibit C, providing for the grant to Mr. Essenmini of options
----------
to purchase 100,000 shares of common stock, $0.001 par value
(the "Common Stock"), of OIC, at an exercise price of U.S. $1
each;
(i) a duly executed Employment Agreement, between the Company and
▇▇. ▇▇▇▇▇▇ Essenmini, in the form attached to this Agreement as
Exhibit D;
----------
(j) a copy of the revised Incorporation Documents of OIC, amended
in accordance with the provisions of Article 4 of this Agreement,
certified by all requisite authorities; and
(k) all other documents, instruments or writings required to be
delivered by OIC at or prior to the Closing pursuant to this
Agreement or otherwise required in connection with this
Agreement or reasonably requested by the Holding Companies
to be delivered by OIC at or prior to the Closing.
1.2 Deliveries at Closing by the Holding Companies. At the Closing,
the Holding Companies will deliver or cause to be delivered to OIC the
following:
(a) a stock certificate or certificates representing all of the Parent
Shares registered in the name of OIC;
(b) a copy of the shareholder register of Forexcash, certified by an
officer of Forexcash, listing Parent as the registered owner and
holder of the Forexcash Shares; and a copy of the shareholder
register of Parent, certified by an officer of Parent, listing
OIC as the registered owner and holder of the Parent Shares;
(c) a certificate duly executed by the CEO/President of each of the
Holding Companies, dated as of the Closing Date, stating that
each of the obligations of the Holding Companies required to be
performed at or prior to the Closing pursuant to the terms of
this Agreement have been duly performed and complied with in all
material respects, and the representations and warranties of the
Holding Companies, Parent and Forexcash contained in this
Agreement are true and correct in all material respects as of the
date of this Agreement and as of the Closing as though made at and
as of the Closing;
(d) certified copies of the resolutions of the directors and/or
shareholders as applicable, of each of the Holding Companies
approving (i) the sale of the Parent Shares to OIC and (ii) the
performance of all transactions contemplated by this Agreement
and of the obligations and undertakings of each of the Holding
Companies, the Parent and Forexcash under this Agreement,
together with copies of all the notices required to be filed by
the Holding Companies, Parent or Forexcash in connection with
this Agreement, all of the foregoing in form and substance
reasonably acceptable to OIC;
(e) copies of the stock books, stock ledgers, minute books and
corporate seals of Parent;
(f) an opinion of the law firm of Oselka Heled & Co Law Office and
such other Law firms (reasonably acceptable to OIC ) which are
counsel to the Holding Companies, Parent and Forexcash, to the
effect set forth in Section 3.1, 3.2,3.3,3.4,3.5,3.8, and 3.9
hereof, dated as of the Closing Date; and
(g) all other documents, instruments or writings required to be
delivered by the Holding Companies, Parent and Forexcash at or
prior to the Closing pursuant to this Agreement or otherwise
required in connection herewith or reasonably requested by OIC,
to be delivered by the Holding Companies, Parent and Forexcash
at or prior to the Closing.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF OIC
OIC hereby represents and warrants to the Holding Companies as follows:
2.1 Capitalization.
(a) OIC's total authorized capital stock consists of 100,000,000
shares of Common Stock, per value $0.001 each and 20,000,000
shares of preferred stock, with no par value (the "Preferred
Stock"), issuable in series.
(b) OIC's total issued and outstanding share capital is comprised of
shares of Common Stock and shares of Preferred Stock,
------ -----
Series A (the "Series A Preferred Stock"). A capitalization
table showing OIC's issued and outstanding share capital, on a
fully diluted, as converted and as exercised basis ("OIC's Share
Capital"), showing all shareholders holding at least 1% of the
Common Stock or 1% of the Series A Preferred Stock, as at the
date hereof and as will be immediately following
Closing (assuming no transfer of shares in the interim and the
issue and sale of the Issue Shares to the Holding Companies), is
attached to this Agreement as Exhibit E.
---------
(c) Once issued and sold to the Holding Companies pursuant to the
terms of this Agreement, the Issue Shares will be duly authorized
and validly issued and will not be issued in violation of any
preemptive rights or rights of first refusal, and the Holding
Companies will acquire, good, valid and marketable title to the
Issue Shares, free and clear of all liens, claims, options,
pledges, security interests, charges, encumbrances, equities,
agreements and restrictions, other than restrictions on transfers
imposed by the federal and state securities laws of the United
States and other applicable jurisdictions and liens, claims,
options, pledges, security interests, charges, encumbrances,
equities, agreements and restrictions expressly agreed to,
in advance and in writing by the Holding Companies, if at all.
(d) Except as set forth in Exhibit E, there are not now and at the
---------
Closing there will not be, any shares of capital stock of OIC,
issued or outstanding, or any subscriptions, options,
warrants, calls, rights, convertible securities or other
rights or other agreements, arrangements or commitments
of any character relating to the issued or unissued capital stock
or otherwise obligating OIC to issue, transfer or sell any
of its respective securities or other instruments convertible
into or exchangeable or exercisable for any securities of OIC.
(e) All shares of capital stock of OIC, including the shares of
Common Stock and the shares of Preferred Stock, have equal
voting rights and each share is entitled to a single vote, except
as set forth in Exhibit E hereto. All resolutions of the
----------------
shareholders and the Board of Directors of OIC may be adopted
by a majority of all those present and entitled to vote, and
no special majorities are required for any matters, other than
as may be required by the laws of the State of Nevada or as
listed in Exhibit E hereto. The
---------
quo rum for all Board meetings and shareholder meetings is a
majority of all those entitled to attend and vote at said meeting.
(c) The shares of Preferred Stock, including the Issue Shares which are
Preferred Stocks shall have the preferred rights, including the
preferences and rights of conversion, all as set forth in
Exhibit F hereto.
----------------
(g) At the Closing there will not be, any voting trusts or other
agreements or understandings to which OIC, or to the knowledge
of OIC, any shareholder of OIC, is a party or is bound with
respect to the voting or transfer of any shares of capital stock
of OIC other than this Agreement. There are no outstanding
contractual or other obligations of OIC to repurchase, redeem
or otherwise acquire any shares of capital stock of OIC.
2.2 Organization; Authorization; Valid and Binding Agreement.
(a) OIC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada. OIC has the
corporate power and authority to enter into this Agreement and
to consummate the transactions contemplated by this Agreement.
A true and accurate copy of OIC's Incorporation Documents is
attached to this Agreement as Exhibit G.
-----------
(b) OIC has duly authorized the execution and delivery of this
Agreement and the consummation of all of the transactions
contemplated hereby. No further corporate actions on the part
of OIC are necessary to authorize the execution of this
Agreement or to consummate all of the transactions contemplated
hereby.
(c) This Agreement constitutes a valid and binding agreement of
OIC, enforceable against OIC in accordance with its terms subject
to applicable bankruptcy, reorganization, insolvency, moratorium,
and similar laws affecting creditors' rights generally from time
to time in effect and to the general principles of equity.
(d) OIC has the authority, as the case may be, to carry on its
business as presently conducted, and to own, lease and operate
its properties and other assets (of every kind, nature, character
and description, whether real, personal or mixed, whether tangible
or intangible, whether accrued, contingent or otherwise and
wherever situated), goodwill and business as a going concern.
Except for the approval of the shareholders of OIC and filing
of the required amendments to the Incorporation Documents, no
permits, consents, or approvals, of any kind whatsoever are
required to be given and/or granted to OIC, by any third party
whatsoever, including, but not limited to, any government
authority, whether federal, state, municipal or otherwise, in
order for OIC to complete, effect, and perfect the issue and
sale of the Issue Shares to the Holding Companies and all
the other transactions contemplated in this Agreement and to
perform all the other obligations and undertakings of OIC as
set forth in this Agreement.
(e) OIC is duly licensed or qualified to do business as a foreign
corporation and is in good standing in each jurisdiction wherein
the character of the assets or properties owned, leased or
operated by it, or the nature of its business makes such
licensing or qualification to do business necessary, except
where failure to be so qualified would not have a material
adverse effect on the business, financial position and results of
operations of OIC.
(f) The financial statements attached hereto as Exhibit H, which
---------
include OIC's quarterly profit and loss statement for the three
months ended October 31, 2000 and balance sheet as at October 31,
2000, fairly represent the financial condition of OIC. The
financial statements have also been duly filed with the SEC as
part of OIC's ongoing obligation as a public reporting company
pursuant to Section 15 (d) of the Exchange Act. OIC has no
material liabilities which are not disclosed in the financial
statements. Subsequent to October 31, 2000, there has not been
any material adverse change in the properties, business,
operations,
assets or condition (financial or otherwise) of OIC,
and OIC has not had any commercial activity of any kind
whatsoever during this period. OIC has Surplus Net Cash in its
bank account, in the amount of no less than US $ 550,000.
"Surplus Net Cash" means cash, in readily available funds, that
is in excess of what is necessary to pay all of OIC's debts,
obligations and reserves of any kind whatsoever, if such
exist, and that is not liable to any kind of tax or any other
payment or levy of any kind whatsoever, and is available
to OIC, in full, for such use as OIC may decide, in its
discretion.
2.3 Violation or Conflict; No Default
(a) None of the nature of the currently conducted business of
OIC, the execution, delivery or performance of this Agreement by
OIC, the issuance and sale of the Issue Shares by OIC, the
compliance by OIC with its obligations in this Agreement, or the
consummation of the transactions contemplated hereby will in any
material respect (i) violate or conflict with any provision of
the Incorporation Documents of OIC, (ii) violate or conflict
with any applicable laws, or (iii) violate, conflict with, or
constitute a breach or default under, or permit the termination
or modification of any lien upon any property of OIC under,
result in the loss by OIC of any right or benefit under, or give
to any other person any right of termination, amendment,
acceleration, repurchase or repayment, or cancellation under,
any mortgage, indenture, note, debenture, agreement, lease,
license, permit, franchise or other instrument or obligation,
whether written or oral ("Contracts"), to which OIC is a party
or by which any of its properties may be bound or affected.
(b) OIC is not in default in any material respect under any of its
Contracts or any of its Incorporation Documents.
2.4. Material Contracts. Except as set forth in Exhibit I, OIC is
----------
not party to any material Contract, of any kind whatsoever,
where, for
the purposes of this Section 2.4, "material" shall mean any
Contract involving liability to OIC of more than U.S. $10,000.
2.5 Certain Tax Matters
(a) OIC has, or shall cause to be prior to the Closing, properly
prepared and filed with the appropriate governmental or taxing
agency or authority ("Taxing Authority"), all Tax Returns (as
defined below) which are or were required to be filed by OIC
prior to Closing with respect to all taxable years or the taxable
periods which have ended or end on or prior to the Closing Date.
OIC has paid, or shall cause to be paid, where due and payable,
any and all taxes shown to be due on all Tax Returns which
are due on or before the Closing Date.
(b) (i) No adjustment or deficiency relating to any Tax Return has
been proposed by any Taxing Authority (insofar as either relates
to the activities or income of OIC or could result in liability
of OIC on the basis of joint and/or several liability); (ii) there
are no pending or, to the knowledge of OIC, any threatened
actions or proceedings for the assessment or collection of
Taxes (as defined below) against OIC (insofar as either relates
to the activities or income of OIC); (iii) no acceleration of
the vesting schedule for any property that is substantially
unvested within the meaning of the regulations under Section
83 of the Internal Revenue Code of 1986, as amended (the "Code")
will occur in connection with the transactions contemplated by
this Agreement; (iv) no adjustment or deficiency has been
proposed by any Taxing Authority relative to any Tax
Return filed or required to be filed by any partnership or
joint venture of which OIC is a member or any trust of which
OIC holds a beneficial interest; (v) OIC does not own any real
property; and (vi) OIC is not subject to any accumulated
earnings tax penalty or personal holding company tax.
(c) The term "Tax Return," as used in this Agreement, means any
report, return, rendition or other document or information
required
to be supplied to a federal, state, local or foreign Taxing
Authority in connection with Taxes.
(d) The term "Taxes," as used in this Agreement, means all taxes,
charters, fees, levies or other assessments including, without
limitation, income, net worth, gross receipts, excise, business
and/or occupation, property, real property transfer, use,
service, license, payroll, franchise, sales, withholding or
employment taxes imposed by the United States or any state,
local or foreign government or subdivision or agency thereof
whether computed on a separate, consolidated, unitary, combined
or any other basis, including all interest, additions, and
penalties thereon.
(e) The parties to this Agreement agree that each respective party
shall be responsible for the tax consequences, if any, resulting
from the transactions contemplated by this Agreement.
2.6 Litigation. OIC is not a party to any Litigation. As used
herein, the term "Litigation" means any claims, actions, suits,
proceedings, arbitrations or investigations pending or, to the
knowledge of OIC, threatened, by or against OIC.
2.7 Insurance. A complete description (name of the insurer, policy
number, premiums, type of insurance, etc.) of all insurance
policies held by OIC, which insurance policies are in full force
and effect, is attached to this Agreement as Exhibit J.
-----------
No insurance policy will cease to be legal, valid, binding,
enforceable in accordance with its terms and in full force and
effect on terms identical to those in effect as of the date
hereof as a result of the consummation of the transactions
contemplated by this Agreement.
2.8 Labor Relations. OIC does not have any employees and OIC is
not a party to any collective bargaining agreements or other
labor related agreements. OIC is not a party to or bound by any
outstanding contracts with officers, employees, agents,
consultants and advisors.
2.9 Subsidiaries. OIC has no subsidiaries.
2.10 Corporate Books and Records. The minute books of OIC contain
accurate records in all material respects of all meetings of and
accurately reflect in all material respects all other actions
taken by the shareholders, Board of Directors and all
committees of the Board of Directors of OIC.
2.11 Disclosure. No representation or warranty made to the
Holding Companies by OIC contained in this Agreement,
and no statement contained in any of the documents or
instruments delivered by OIC pursuant to this Agreement,
contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the
statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE HOLDING COMPANIES
Each of the Holding Companies, jointly and severally, hereby
represent and warrant to OIC, with respect to each of the Holding
Companies, Parent and Forexcash, as follows:
3.1 Organization. It is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation. It has the corporate power and
authority to enter into this Agreement and to consummate all
the transactions contemplated in this Agreement.
3.2 Authorization. It has duly authorized the execution and
delivery of this Agreement and the consummation of the
transactions contemplated in this Agreement. No further
corporate actions on its part are necessary to authorize this
Agreement or to consummate all the transactions contemplated
in this Agreement.
3.3 Valid and Binding Agreement. This Agreement constitutes a valid
and binding agreement of it, enforceable against it in accordance
with its terms subject to applicable bankruptcy, reorganization,
insolvency, moratorium, and similar laws affecting creditors'
rights generally from time to time in effect and to the general
principles of equity,
3.4 No Violation or Conflict; No Default
(a) None of the nature of the currently conducted business
of the Holding Companies, Parent and Forexcash, the execution,
delivery or performance of this Agreement, the issuance and
sale of the Parent Shares, the compliance with its obligations
hereunder or thereunder, or the consummation of the
transactions contemplated in this Agreement will in any material
respect (i) violate or conflict with any provision of the
incorporation documents of the Holding Companies, Parent and
Forexcash; (ii) violate or conflict with any applicable laws;
or (iii) violate, conflict with, or constitute a breach or
default under, or permit the termination or modification of any
lien upon any property of the Holding Companies, Parent and
Forexcash, result in the loss by the Holding Companies, Parent
and Forexcash of any right or benefit under, or give to any other
person
any right of termination, amendment, acceleration,
repurchase or repayment, or cancellation under, any mortgage,
indenture, note, debenture, agreement, lease, license, permit,
franchise or other instrument or obligation, whether
written or oral ("Seller Contracts"), to which
the Holding Companies, Parent and Forexcash is a party
or by which any of its properties may be bound
or affected.
(b) It is not in default under any of the Seller Contracts or any
of its incorporation documents.
3.5 Litigation. It is not a party to any Seller Litigation. As used
in this Agreement, the term "Seller Litigation" means any claims,
actions, suits, proceedings, arbitrations or investigations
pending or, to the knowledge of the Holding Companies,
threatened, by or against the Holding Companies, Parent or
Forexcash.
3.6 Commissions and Fees. There are no brokerage commissions,
investment banker's fees or finder's fees due and payable in
connection with the transactions contemplated by this Agreement
resulting from any action taken by the Holding Companies, Parent
or Forexcash or any of their shareholders, officers, directors
or agents.
3.7 No Undisclosed Liabilities.Neither Parent nor Forexcash
has any material liabilities (absolute, accrued, contingent or
otherwise) or obligations, except for the obligation of Parent
to repay borrowing of U.S.$ 250,000 plus interest to OIC.
3.8 Capitalization; Title
(a) Parent's total authorized capital stock consists of
, all of which is owned by the
------------------- ---------------
Holding Companies. Forexcash's total authorized capital stock consists
of which is owned by and
-------------- --------- ------------
is owned by .
----------- --------------------------
(b) The Holding Companies have good, valid and marketable title
to the Parent Shares and the Parent has good, valid and
marketable title to the Forexcash Shares, in each case, free
and clear of all liens, claims, options, pledges, security
interests, charges, encumbrances, equities, agreements and
restrictions ("Liens").
(c) Once issued and sold to OIC pursuant to the terms of this
Agreement, OIC will acquire good, valid and marketable title
to the Parent Shares, free and clear of all Liens.
(d) There are not now, and at the Closing there will not be, any
shares of capital stock of Parent and Forexcash, issued or
outstanding except as described in Section 3.8, or any
subscriptions, options, warrants, calls, rights, convertible
securities or other rights or other agreements, arrangements or
commitments of any character relating to the issued or unissued
capital stock of Parent or Forexcash or otherwise obligating
Parent and Forexcash to issue, transfer or sell any of its
respective securities or other instruments convertible into or
exchangeable or exercisable for any securities of Parent and
Forexcash.
3.9 Intellectual Property. Forexcash, directly or indirectly, owns or
is licensed, or is legally entitled, or otherwise possesses
enforceable rights to use, all patents, trademarks, trade names,
servicemarks, copyrights, and any applications therefor,
technology, know-how or tangible or intangible proprietary
information, inventions, trade secrets, processes or material
that are required for the conduct of its business as currently
conducted or proposed to be conducted (the "Intellectual
Property Rights"). The Intellectual Property Rights that are
owned by, or licensed to Forexcash and the jurisdictions where
any registrations in Forexcash name have been made are
listed in Exhibit K to this Agreement.
----------
3.10 Business Plan. The business plan of Forexcash heretofore
delivered to OIC is true, correct and complete in all material
respects.
3.11 Disclosure. No representation or warranty made to OIC
contained in this Agreement, and no statement contained in any
certificate, document or instrument delivered by the Holding
Companies, Parent and Forexcash pursuant to this Agreement,
contains any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements contained
herein or therein, in light of the circumstances under which
they were made, not misleading.
3.12 Investment. Each of the Holding Companies hereby further
represents and warrants to OIC, jointly and severally, as
follows:
(a) Each of the Holding Companies is purchasing its portion of
the Issue Shares for investment and not with a view toward
distribution, except in compliance with applicable securities
laws.
(b) Each of the Holding Companies understands that Issue Shares
have not been registered under the Securities Act of 1933, as
amended (the "Act") or applicable state securities laws and are
being issued and sold pursuant to an exemption from
registration afforded by Section 4(2) of the Act and by
applicable state law provisions. Each of the Holding Companies
recognizes that, as a consequence, the Issue Shares purchased
pursuant to this Agreement may not be
transferred unless such transfer is registered under the Act
and applicable state securities laws, or an exemption from
such registration is available, so that the Holding Companies
must bear the economic risk of investment in such Issue
Shares for an indefinite period of time. OIC is not under any
obligation to register the Issue Shares under any securities law
or otherwise, except as set forth in Section 4.6 of this
Agreement.
(c) Neither the SEC nor any state securities commission has
approved the Issue Shares or passed upon or endorsed the
merits of the issuance thereof.
(d) None of the Holding Companies is a "U.S. Person" as defined
in Rule 902 under Regulation of the Act.
ARTICLE 4
CERTAIN OBLIGATIONS OF THE PARTIES
4.1 Conduct of Business Pending the Closing. OIC agrees that OIC
may not, and OIC hereby undertakes that it will not, unless
otherwise consented to by the Holding Companies, in advance and
in writing, conduct any business whatsoever between the date
hereof and Closing, except as it conducts on the date hereof,
including, without limitation to the generality of the
foregoing:
(a) Hire any employees or engage any consultant or service
provider of any kind whatsoever.
(b) Declare, pay or make, or set aside for payment or making,
any dividend or other distribution in respect of the capital
stock of OIC or directly or indirectly redeem, purchase or
otherwise acquire any of its capital stock or other securities.
(c) Issue, authorize, or propose the issuance of any shares of
the capital stock of OIC or any of the securities convertible
into, or rights, warrants or options to acquire, any such shares
or other convertible securities.
(d) Enter into any lease of real or personal property.
(e) Terminate or amend or suffer the termination or amendment
of, or fail to perform in all material respects all of its
obligations or suffer or permit any default to exist under,
any Contract, lease, agreement or license.
4.2 Other Obligations of OIC Pending the Closing.
OIC agrees that from the date hereof until the Closing, OIC will allow the
Holding Companies, and/or their agents, access, during normal business
ours, to all of OIC's records and documents; provided that such person
executes an appropriate confidentiality agreement substantially in the form
attached hereto as Exhibit I.
----------
4.3 Public Announcements.
The Holding Companies and OIC agree that they will consult with each
other before issuing any press releases or otherwise making any public
statements with respect to this Agreement or the transactions contemplated in
this Agreement and shall not issue any press release or make any public
statement prior to such consultation, except as may
be required by law.
4.4 Notification of Certain Matters.
OIC shall give prompt notice to the Holding Companies, and the Holding
Companies shall give prompt notice to OIC, of (i) the occurrence, or failure to
occur, of any event which occurrence or
401016.8
30403-0999
13
failure would be likely to cause any representation or warranty of the
notifying parties contained in this Agreement to be untrue or inaccurate in any
material respect any time from the date of this Agreement to the losing Date,
and (ii) any material failure of the Holding Companies or OIC, as the case
may be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by the notifying parties hereunder.
4.5 Incorporation Documents.
As soon as possible following the execution hereof and in any event no
later than immediately prior to Closing, OIC shall amend and/or restate its
Incorporation Documents, in order to give full force and effect, apply,
implement and enact, all of the provisions of this Agreement and all of the
transactions and actions contemplated in this Agreement.
4.6 Registration.
At the request of the Holding Companies, OIC will use its best efforts,
within 120 days of Closing, to file with the SEC a registration statement with
respect to the distribution of the Issue Shares, pursuant to the requirements
of the Act (the "Registration Statement"). OIC will use its best efforts to
cause the Registration Statement to be declared effective as promptly as
practicable after filing with the SEC. None of the information supplied or to
be supplied by OIC for inclusion in the Registration Statement will, at the
time the Registration Statement is filed with the SEC, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
OIC will also use its best efforts to register, within 120 days of Closing,
the Common Stock under the Exchange Act and to arrange for OIC's
Common Stock to be listed on the OTC Bulletin Board
4.7 Reserve.
OIC shall at all times, as of Closing and for as long thereafter as the
Issue Shares remain outstanding, reserve a number of shares of Common
Stock that is sufficient to permit the issuance of such quantity of shares of
Common Stock as shall be required to be issued upon the conversion of the
Issue Shares in accordance with the rights of conversion thereof as set forth
in Exhibit E to this Agreement. In addition, OIC shall reserve a sufficient
---------
quantity of shares of its Common Stock to enable the exercise of all the stock
options granted under the stock option agreement as set forth in Section 1.2
above, in accordance with its terms.
4.8 Board of Directors.
OIC's Board of Directors will consist of three directors, two of whom will
be nominated by the Holding Companies, one of whom will be the Chairman
of the Board, and one of whom will be nominated by OIC's current Board of
Directors. No greater number of directors may be appointed, nor may the
rights to appoint directors, as set forth in this Section 4.8, be amended, in
any way whatsoever, unless both of the directors nominated by the Holding
Companies, or holders of a majority of the shares of OIC, held at that time the
Holing Companies, as applicable, shall have voted in favor of such
amendment. The Holding Companies shall notify OIC in writing, at Closing,
of the nomination of two directors.
401016.8
30403-0999
14
ARTICLE 5
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The respective obligations of the Holding Companies and OIC hereunder
are subject to the fulfillment, prior to the Closing, of each of the following
conditions, which may not be waived.
5.1 No Injunction or Litigation.
There shall not be in effect on the Closing Date any judgment, order,
injunction or decree of any court enjoining, prohibiting or otherwise making
illegal consummation of the transactions (or any material portions thereof)
contemplated by this Agreement or any pending litigation with respect to
which there is a substantial likelihood that such litigation could have a
material adverse effect on the business, operation or financial position of the
Holding Companies taken as a whole, Parent or Forexcash or OIC.
ARTICLE 7
CONDITIONS TO OBLIGATIONS OF THE HOLDING
COMPANIES
The obligations of the Holding Companies hereunder are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions
(all or any of which may be waived in whole or in part by the Holding
Companies, in their sole discretion, and none or which will be considered
waived other than by written instrument, duly signed by all of the Holding
Companies):
6.1 Representations and Warranties.
The representations and warranties made by OIC in this Agreement or in
any other agreement, instrument or certificate delivered by OIC pursuant to
this Agreement which are made subject to the qualification that they are true
and correct in all material respects, shall be true and correct when made and
at and as of the Closing Date as though made at and as of the Closing Date,
and all other representations and warranties made by OIC shall be true and
correct in all material respects when made and at and as of the Closing Date as
though such representations and warranties were made at and as of such date.
6.2 Performance.
OIC shall have performed and complied with, in all material respects, all
agreements, covenants obligations and conditions required by the Agreement
to be so performed or complied with by OIC prior to or at the Closing.
6.3 Consents.
The Holding Companies shall have received copies of all consents,
approvals, authorizations and orders necessary to consummate the transactions
contemplated in this Agreement all of which shall be in form and substance
reasonably satisfactory to the Holding Companies and shall continue to be in
full force and effect.
401016.8
30403-0999
15
6.4 Organizational Documents.
The Holding Companies shall have received a copy of OIC's Incorporation
Documents, as amended pursuant to the terms of this Agreement.
6.5 Minute Books.
The Holding Companies shall have received a copy of the minute books
and stock register of OIC.
6.6 No Material Adverse Change.
Since the date of this Agreement, there shall not have occurred a material
adverse change in the business, operations or financial position of OIC.
6.7 Closing Deliveries.
All closing deliveries required by Section 1.2 shall have been made.
ARTICLE 7
CONDITIONS TO OBLIGATIONS OF OIC
The obligations of OIC hereunder are subject to the fulfillment, prior to
or at the Closing, of each of the following conditions (all or any of which may
be waived in whole or in part by OIC):
7.1 Representations and Warranties.
The representations and warranties made by the Holding Companies, Parent
and Forexcash in this Agreement, and the statements of said parties contained
in any agreement, instrument or certificate delivered by said parties pursuant
to this Agreement which are made subject to the qualification that they are
true and correct in all material respects, shall be true and correct when made
and at and as of the Closing Date as though made at and as of the Closing
Date, and all other representations and warranties made by said parties shall
be true and correct in all material respects when made and at and as of the
Closing Date as though such representations and warranties were made at and
as of such date.
7.2 Performance.
The Holding Companies, Parent and Forexcash shall have performed and
complied with, in all material respects, all agreements, covenants, obligations
and conditions required by this Agreement to so be performed or complied
with by it prior to or at the Closing.
7.3 Consents.
OIC shall have received copies of all consents, approvals, authorizations
and orders necessary to consummate the transactions contemplated hereby, all
of which shall be in form and substance satisfactory to OIC and shall continue
to be in full force and effect. All documents to be
401016.8
30403-0999
16
delivered by the Holding Companies, Parent and Forexcash to OIC at the
Closing, if at all, shall be in form and substance reasonably satisfactory to
OIC.
7.4 Closing Deliveries.
All closing deliveries required by Section 1.3 shall have been made.
ARTICLE 8
SURVIVAL OF REPRESENTATIONS;
INDEMNIFICATION
8.1 Survival of Representations.
The representations, warranties, covenants and agreements made by OIC
contained in this Agreement and the representations, warranties, covenants
and agreements made by the Holding Companies, Parent and Forexcash
contained in this Agreement shall survive the Closing and any investigation at
any time made by or on behalf of any party. The representations and
warranties in this Agreement shall be deemed to be remade as of the Closing,
as if made on the date thereof.
8.2 Indemnification.
OIC hereby agrees, for a period of three years after the Closing Date and
for a period of five years after the Closing Date in relation to tax
representations, to indemnify the Holding Companies and each director and
officer of the Holding Companies (collectively, the "Indemnified Parties")
against, and hold the Indemnified Parties harmless from, and pay or reimburse
the Indemnified Parties for, all direct and indirect losses and costs incurred
by any of them arising directly or indirectly out of the breach of any
representation or warranty of OIC as set forth in this Agreement, including
reasonable legal costs.
8.3 Indemnification.
The Holding Companies hereby agree, for a period of three years after the
Closing Date and for a period of five years after the Closing Date in relation
to tax representations, to indemnify OIC, Parent and Forexcash and each
director and officer of OIC, Parent and Forexcash (collectively, the
"Indemnified OIC Parties") against, and hold the Indemnified OIC Parties
harmless from, and pay or reimburse the Indemnified OIC Parties for, all
direct and indirect losses and costs incurred by any of them arising directly
or indirectly out of the breach of any representation or warranty of the
Holding Companies, Parent and Forexcash as set forth in this Agreement,
including reasonable legal costs.
ARTICLE 9
TERMINATION; AMENDMENT,
EXTENSION AND WAIVER
9.1 Termination of Agreement.
This Agreement may be terminated at any time prior to the Closing:
(a) By mutual written agreement of the Holding Companies and OIC.
401016.8
30403-0999
17
(b) By either the Holding Companies or OIC if the Closing shall not have
occurred on or before July 31 , 2001, unless such failure to close
shall be due to a material breach of this Agreement by the party
seeking to terminate the Agreement pursuant to this Section 9.1.
9.2 Effect of Termination.
In the event of termination of this Agreement as provided above, this
Agreement shall forthwith become void and there shall be no liability on the
part of any party (or any of their respective officers or directors). Nothing
contained in this Section 9.2 shall relieve any party from liability for any
breach of this Agreement.
9.3 Amendment, Extension and Waiver.
The Holding Companies and OIC may amend this Agreement at any time
by an instrument in writing signed on behalf of such parties. Any agreement
on the part of a party to this Agreement to any waiver of compliance with any
of the agreements or conditions contained in this Agreement shall be valid
only if set forth in an instrument in writing signed by the party to be bound
thereby.
ARTICLE 10
MISCELLANEOUS
10.1 Governing Law; Submission to Jurisdiction, Waiver of Jury
Trial.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada. Each of the parties to this Agreement hereby
irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court thereof, for purposes of all
legal proceedings arising out of or relating to this Agreement; provided,
however, that such consent to jurisdiction is solely for the purpose referred
to in this Section and shall not be deemed to be a general submission to the
jurisdiction of said courts other than for such purposes. Each of OIC and the
Holding Companies irrevocably waive, to the fullest extent permitted by law,
any objection which either of them may now or hereafter have to the laying of
the venue of any such proceeding brought in such court and any contention
that any such proceeding brought in such court has been brought in an
inconvenient return. Each of the parties hereby irrevocably waives any and all
right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or to the transactions contemplated hereby.
10.2 Entire Agreement.
This Agreement and the schedules and the other agreements, instruments
and writings referred to in this Agreement or delivered pursuant to this
Agreement contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
401016.8
304403-0999
18
10.3 Headings.
The Article and Section headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
10.4 Notices.
All notices, claims, certificates, requests, demands and other
communications hereunder will be in writing (whether by letter, fax or other
commercially acceptable courier service) will be deemed to have been duly
given upon receipt as follows.
If to the Holding Companies:
▇▇▇▇▇ Ltd.
Registered ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Nassau, Bahamas
Directors
Allistair ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
SBFT & CO Ltd.
Registered ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Nassau, Bahamas
Directors
Allistair ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Holdings Ltd.
Registered ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Nassau, Bahamas
401016.8
30403-0999
19
Directors
Julien Essemini
▇▇▇▇▇▇▇ Global Ltd.
Registered ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Nassau, Bahamas
Directors
▇▇▇▇▇ ▇▇▇▇▇
Gan ▇▇▇▇▇▇▇ Ltd.
Registered ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Nassau, Bahamas
Directors
▇▇▇▇▇ ▇▇▇▇▇
Bee Byte Ltd.
Registered ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
Nassau, Bahamas
Directors
Guy Senbel
Lotus Invest Ltd.
Registered Office
Directors
Seapen Corporation Ltd.
Registered Office
401016.8
30403-0999
20
Directors
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Adresse
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
If to Parent:
If to Forexcash:
▇▇. ▇▇▇▇▇▇ Essenmini
FOREXCASH GLOBAL TRADING LTD.
Allenby ▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Fax ▇▇▇-▇▇▇-▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇ , Advocate
Oselka Heled & Co. Law Offices
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
If to OIC:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇-▇▇-▇▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Torys
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above.
401016.8
30403-0999
21
10.5 Counterparts.
This Agreement may be executed simultaneously in counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
10.6 Specific Performance.
The Holding Companies and OIC each acknowledge that the Holding
Companies and OIC would not have an adequate remedy at law for money
damages in the event that this Agreement was not performed in accordance
with its, terms, and therefore agree that the Holding Companies and OIC each
shall be entitled to specific enforcement of the terms hereof in addition to
any other remedy to which it may be entitled, at law or in equity.
10.7 Severability.
If any term, provision, covenant or restriction or this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duty authorized officers of the parties hereto as of the date
first above written.
FOREXCASH GLOBAL TRADING
--------------------------
By: ▇▇. ▇▇▇▇▇▇ Essemini
ONLINE INTERNATIONAL CORPORATION
--------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer, Secretary
Oselka Heled Trustee ltd
--------------------------
By:
▇▇▇▇▇ Ltd.
--------------------------
By:
SBFT & Co Ltd
--------------------------
By:
Winhall Holding Ltd
--------------------------
By:
▇▇▇▇▇▇▇ Global Ltd.
--------------------------
By:
Gan ▇▇▇▇▇▇▇ Ltd.
--------------------------
By:
Bee Byte Ltd.
--------------------------
By:
Lotus Invest Ltd.
--------------------------
By:
Seapen Corporation Ltd.
--------------------------
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
By:
Priory Marketing Ltd
--------------------------
By:
SCHEDULE A
DISCLOSURE SCHEDULE
-------------------
EXHIBIT A
HOLDING COMPANIES
------------------
Column I COLUMN II
Names and Addresses Number of Issue Shares
of Holding Companies to be Acquired
-------------------- --------------------------
EXHIBIT B
OPINION OF TORYS
-----------------
EXHIBIT C
OIC'S SHARE CAPITAL
--------------------
EXHIBIT D
CORPORATE GOVERNANCE
---------------------
EXHIBIT E
INCORPORATION DOCUMENTS
------------------------
EXHIBIT F
FINANCIAL STATEMENTS
---------------------
EXHIBIT G
INSURANCE
----------
EXHIBIT H
INTELLECTUAL PROPERTY
---------------------
