EXHIBIT 2.4
Share Exchange Agreement
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (the "Agreement") is dated the 31st day of
January, 2004, by and among UNITECH ENERGY CORP., a Nevada corporation (the
"Buyer"), UNITECH ENERGY CORP., an Alberta corporation (the "Company") and the
SHAREHOLDERS of the Company (the "Shareholders") (hereinafter collectively
referred to as the "Parties").
WHEREAS the Buyer desires to exchange its shares (The "Buyer Shares") for
all of the issued and outstanding shares of capital stock of the Company (the
"Company Shares") from the Shareholders for the consideration and upon the terms
and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the provisions and the
respective agreements hereinafter set forth, the Parties hereto hereby agree as
follows:
1. Exchange of Stock.
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Exchange Agreement. Upon the terms and subject to the conditions set forth in
this Agreement and upon the representations and warranties made herein by each
of the parties to the other, the Company shall recommend to the Shareholders to
deliver to the Buyer, in exchange for Buyers' Shares on the basis of 2.845618
Buyers Shares for each Company Share, all of their Company Shares. The maximum
number of Company Shares available to be exchanged by the Shareholders hereunder
is 5,717,563 common shares. These shares represent 100% of the total shares
outstanding of the Company. The Buyer reserves the right to accept less than
5,717,563 Company Shares in the case where less than 5,717,563 Company Shares
are offered by the Shareholders for exchange and further reserves the right to
withdraw the share exchange offer in the event that insufficient Company Shares,
at the Buyers sole discretion, are offered for exchange.
Exchange of Company Shares for Buyer Shares. Upon the terms and subject to the
conditions set forth in this Agreement and upon the representations and
warranties made herein by each of the parties to the other, on the Closing Date
(as such term is hereinafter defined), the Buyer shall cause to be delivered to
the Shareholders, up to 16,270,000 Buyer Shares (depending on the number of
Company Shares tendered to this offer). The Buyer and the Shareholders
acknowledge that the Buyers' Shares to be exchanged will consist of 5,142,857
Buyer treasury shares and 11,127,143 previously-issued Buyer shares. In the case
where 100% of the Company Shares are offered for exchange, the Buyer shall cause
to be delivered to the Shareholders, 16,270,000 shares of the common stock of
the Buyer ("Buyers' Shares"), equal to 70% of the Buyers equity after the
Closing, to be distributed to the Shareholders based upon their respective pro
rata percentage interest in the Company. Upon the consummation of this
transaction, the Company shall be a wholly or partially-owned subsidiary of the
Buyer (depending on the number of Company Shares offered for exchange).
1.3 Options. Buyer hereby agrees that it shall abide by the terms and
conditions of any and all options issued by the Company as of the Closing for a
period of two years from the date Buyer commences trading on the OTC Electronic
Bulletin Board, and upon exercise Buyer shall issue to such option holders
shares of common stock of Buyer at a conversion rate of 2.84 shares of Buyer's
common stock for each option share exercised.
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1.4 Closing. The closing of the transaction contemplated herein (the
"Closing") will be at the office of the Company on or before February 10, 2004,
or at such other place or at such other date and time as the Company and the
Buyer may mutually agree. Such date and time of Closing is herein referred to as
the "Closing Date."
1.5 Effective Date. Notwithstanding the Closing Date, the effective date of
the transactions contemplated herein shall be January 1, 2004 (the "Effective
Date").
The Company represents and warrants to the Buyer as follows:
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Existence and Good Standing. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the Province of Alberta.
The Company is duly licensed or qualified to do business and is in good standing
under the laws of all other jurisdictions in which the character of the
properties owned or leased by it therein or in which the transaction of its
business makes such qualification necessary.
Corporate Authority. The Company has all requisite corporate power and authority
to own its properties and carry on its business as now conducted.
Compliance with Law. The Company is not in default with respect to any order of
any court, governmental authority or arbitration board or tribunal to which the
Company is a party or is subject, and the Company is not in violation of any
laws, ordinances, governmental rules or regulations to which it is subject. The
Company has obtained all licenses, permits and other authorizations and has
taken all actions required by applicable laws or governmental regulations in
connection with its business as now conducted.
Authorization; Validity and Effect of Agreements. The execution and delivery of
this Agreement and all agreements and documents contemplated hereby by the
Company, and the consummation by it of the transactions contemplated hereby,
have been duly authorized by all requisite action. This Agreement constitutes,
and all agreements and documents contemplated hereby when executed and delivered
pursuant hereto will constitute, the valid and legally binding obligations of
the Company enforceable in accordance with its terms, except that enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws of general application now or
hereafter in effect relating to the enforcement of creditors' rights generally
and except that the remedies of specific performance, injunction and other forms
of equitable relief are subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before which any proceeding
therefore may be brought. The execution and delivery of this Agreement by the
Company does not and the consummation of the transactions contemplated hereby
will not (i) require the consent of any third party, (ii) result in the breach
of any term or provision of, or constitute a default under, or result in the
acceleration of or entitle any party to accelerate (whether after the giving of
notice or the lapse of time or both) any obligation under, or result in the
creation or imposition of any lien, charge, pledge, security interest or other
encumbrance upon any part of the property of the Company pursuant to any
provision of, any order, judgment, arbitration award, injunction, decree,
indenture, mortgage, lease, license, lien, or other agreement or instrument to
which Buyer is a party or by which it is bound, and (iii) violate or conflict
with any provision of the by-laws or articles of incorporation of Buyer as
amended to the date of this Agreement.
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The Buyer represents and warrants to the Company and the Shareholders as
follows:
Existence and Good Standing. Buyer is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Nevada. Buyer is
duly licensed or qualified to do business as a foreign corporation and is in
good standing under the laws of all other jurisdictions in which the character
of the properties owned or leased by it therein or in which the transaction of
its business makes such qualification necessary.
Corporate Authority. Buyer has all requisite corporate power and authority to
own its properties and carry on its business as now conducted.
Compliance with Law. Buyer is not in default with respect to any order of any
court, governmental authority or arbitration board or tribunal to which Buyer is
a party or is subject, and Buyer is not in violation of any laws, ordinances,
governmental rules or regulations to which it is subject. Buyer has obtained all
licenses, permits or other authorizations and has taken all actions required by
applicable laws or governmental regulations in connection with its business as
now conducted.
Authorization; Validity and Effect of Agreements. The execution and delivery of
this Agreement and all agreements and documents contemplated hereby by Buyer,
and the consummation by it of the transactions contemplated hereby, have been
duly authorized by all requisite corporate action. This Agreement constitutes,
and all agreements and documents contemplated hereby when executed and delivered
pursuant hereto will constitute, the valid and legally binding obligations of
Buyer enforceable in accordance with their terms, except that enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws of general application now or
hereafter in effect relating to the enforcement of creditors' rights generally
and except that the remedies of specific performance, injunction and other forms
of equitable relief are subject to certain tests of equity jurisdiction,
equitable defenses and the discretion of the court before which any proceeding
therefore may be brought. The execution and delivery of this Agreement by the
Buyer does not and the consummation of the transactions contemplated hereby will
not (i) require the consent of any third party, (ii) result in the breach of any
term or provision of, or constitute a default under, or result in the
acceleration of or entitle any party to accelerate (whether after the giving of
notice or the lapse of time or both) any obligation under, or result in the
creation or imposition of any lien, charge, pledge, security interest or other
encumbrance upon any part of the property of the Company pursuant to any
provision of, any order, judgment, arbitration award, injunction, decree,
indenture, mortgage, lease, license, lien, or other agreement or instrument to
which Buyer is a party or by which it is bound, and (iii) violate or conflict
with any provision of the by-laws or articles of incorporation of Buyer as
amended to the date of this Agreement.
4. Conditions of Closing.
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Buyer's Conditions of Closing. The obligation of Buyer to exchange the Company
Shares shall be subject to and conditioned upon the satisfaction (or waiver by
Buyer) at the Closing of each of the following conditions:
4.1(a) All representations and warranties of Shareholders contained in this
Agreement and the Schedules hereto shall be true and correct at and as of the
Closing Date, Shareholders shall have performed all agreements and covenants and
satisfied all conditions on its part to be performed or satisfied by the Closing
Date pursuant to the terms of this Agreement, and Buyer shall have received a
certificate of the Shareholders dated the Closing Date to such effect.
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4.1(b) Shareholders shall have delivered to Buyer, certificates and other
instruments representing Company Shares, duly endorsed for transfer or
accompanied by appropriate stock powers (in either case executed in blank or in
favor of Buyer with the execution thereof guaranteed by a bank or trust
company), together with all other documents necessary or appropriate to validly
transfer the Company Shares to Buyer free and clear of all security interests,
liens, encumbrances and adverse claims.
4.1(c) At Closing, neither any investigation of the Company by Buyer, nor the
Schedules attached hereto or any supplement thereto nor any other document
delivered to Buyer as contemplated by this Agreement, shall have revealed any
facts or circumstances which, in the sole and exclusive judgment of Buyer and
regardless of the cause thereof, reflect in an adverse way on the Company or its
financial condition, assets, liabilities (absolute, accrued, contingent or
otherwise), reserves, business, operations or prospects.
4.1(d) The approval and all consents from third parties and governmental
agencies required to consummate the transactions contemplated hereby shall have
been obtained.
4.1(e) No suit, action, investigation, inquiry or other proceeding by any
governmental body or other person or legal or administrative proceeding shall
have been instituted or threatened which questions the validity or legality of
the transactions contemplated hereby.
4.1(f) As of the Closing, there shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for herein or
any of them not be consummated as so provided or imposing any conditions on the
consummation of the transactions contemplated hereby, which is unduly burdensome
on Buyer.
4.1(g) As of the Closing, there shall have been no material adverse change in
the amount of issued and outstanding common stock of the Company.
Shareholders Conditions of Closing. The obligation of Shareholders to exchange
their Company Shares shall be subject to and conditioned upon the satisfaction
(or waiver by Shareholders) at the Closing of each of the following conditions:
4.2(a) All representations and warranties of Buyer contained in this Agreement
shall be true and correct at and as of the Closing Date and Buyer shall have
performed all agreements and covenants and satisfied all conditions on its part
to be performed or satisfied by the Closing Date pursuant to the terms of this
Agreement, and Shareholders shall have received a certificate of Buyer dated the
Closing Date to such effect.
4.2(b) Buyer shall have effected the share exchange in accordance with Section 1
of this Agreement by delivering to Shareholders certificates and other
instruments representing Buyer's Shares, (a) in the case of previously-issued
Buyer shares, duly endorsed for transfer or accompanied by appropriate stock
powers (in either case executed in blank or in favor of Shareholders with the
execution thereof guaranteed by a bank or trust company), and/or (b) in the case
of newly-issued Buyer treasury shares, in the name of the individual who is
tendering Company Shares to this offer, together with all other documents
necessary or appropriate to validly transfer the Buyer's Shares to Shareholders
free and clear of all security interests, liens, encumbrances and adverse
claims.
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4.2(c) Prior to the anticipated share exchange transaction, the Buyer has a
total of 18,100,000 shares of common voting stock outstanding. Immediately after
the closing, the Buyer will have 23,242,857 shares issued and outstanding of
which the Shareholders will own 16, 270,000 shares. There will be no other
shares of any class issued and/or outstanding and there will be no debt
obligations outstanding. The Buyer, at Closing, will have a minimum of
US$425,000 in unencumbered cash in its bank account prior to paying any closing
expenses and prior to the anticipated private placement for US$385,000 in the
Company.
4.2(d) The approval and all consents from third parties and governmental
agencies required to consummate the transactions contemplated hereby shall have
been obtained.
4.2(f) No suit, action, investigation, inquiry or other proceeding by any
governmental body or other person or legal or administrative proceeding shall
have been instituted or threatened which questions the validity or legality of
the transactions contemplated hereby.
4.2(g) As of the Closing, there shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court of
competent jurisdiction directing that the transactions provided for herein or
any of them not be consummated as so provided or imposing any conditions on the
consummation of the transactions contemplated hereby, which is unduly burdensome
on Shareholders.
4.2(h) As of the Closing, there shall have been no material adverse change in
the amount of issued and outstanding common stock of Buyer.
4.2(i) At the Closing, the then officers and directors of the Buyer will resign
and be replaced by two nominees of the Company.
4.2(j) The Buyer shall, if it elects to accept any tendered Company Shares and
close the Transaction, continue to accept Company Shares on the terms and
conditions set out in this Agreement, until June 1, 2004, from those
Shareholders who did not tender their Company Shares to the offer due to lack of
knowledge of the offer or because of other extenuating circumstances.
5. Termination.
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5.1 Methods of Termination. The transactions contemplated herein may be
terminated and/or abandoned at any time before or after approval thereof by any
of the Parties but not later than the Closing:
5.1.1 By mutual consent of Buyer, Shareholders, and the Company; or
By the Buyer, if any of the conditions provided for in Section 4.1 hereof shall
not have been met or waived in writing by Buyer at or prior to Closing; or
By the Shareholders, if any of the conditions provided for in Section 4.2 hereof
shall not have been met or waived in writing by Shareholders at or prior to
Closing.
Procedure Upon Termination. In the event of termination by the Buyer or the
Shareholders, as applicable, pursuant to Section 5.1 hereof, written notice
thereof shall forthwith be given to the other party and the transactions
contemplated by this Agreement shall be terminated without further action by the
Buyer or the Company. If the transactions contemplated by this Agreement are so
terminated: Each party will redeliver all documents, work papers and other
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5.1.1 - continued
material of any other party relating to the transactions contemplated hereby,
whether so obtained before or after the execution of this Agreement, to the
party furnishing the same; and
5.2.2 No party hereto shall have any liability or further obligation to any
other party to this Agreement.
6. Miscellaneous.
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Notice. Any notice required or permitted hereunder shall be in writing and
shall be sufficiently given if personally delivered or mailed by certified or
registered mail, return receipt requested, addressed as follows:
If to Buyer/ Unitech Energy Corp. (Nevada)
Shareholders c/o The X'Xxxx Law Firm, P.C.
000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. X'Xxxx, Esq.
If to the Company: Unitech Energy Corp. (Alberta)
Xxxxx 0000, 000 - 0xx Xxx. X.X.
Xxxxxxx, Xxxxxxx, X0X 0X0
Attention: Xxxxx Xxxxxxx
or to such other address as any Party shall specify by written notice so
given), and shall be deemed to have been delivered as of the date so personally
delivered or mailed.
Execution of Additional Documents. The parties hereto will at any time, and from
time to time after the Closing Date, upon request of the other party, execute,
acknowledge and deliver all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably required to
carry out the intent of this Agreement, and to transfer and vest title to any
Company Shares being transferred hereunder, and to protect the right, title and
interest in and enjoyment of all of the Company Shares sold, granted, assigned,
transferred, delivered and conveyed pursuant to this Agreement; provided,
however, that this Agreement shall be effective regardless of whether any such
additional documents are executed.
Binding Effect; Benefits. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, successors,
executors, administrators and assigns. Notwithstanding anything contained in
this Agreement to the contrary, nothing in this Agreement, expressed or implied,
is intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
Entire Agreement. This Agreement, together with the Exhibits, Schedules and
other documents contemplated hereby, constitute the final written expression of
all of the agreements between the parties, and is a complete and exclusive
statement of those terms. It supersedes all understandings and negotiations
concerning the matters specified herein. Any representations, promises,
warranties or statements made by either party that differ in any way from the
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6. Miscellaneous - continued
terms of this written Agreement and the Exhibits, Schedules and other documents
contemplated hereby, shall be given no force or effect. The parties specifically
represent, each to the other, that there are no additional or supplemental
agreements between them related in any way to the matters herein contained
unless specifically included or referred to herein. No addition to or
modification of any provision of this Agreement shall be binding upon any party
unless made in writing and signed by all parties.
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Province of Alberta exclusive of the conflict of law
provisions thereof.
Survival. All of the terms, conditions, warranties and representations contained
in this Agreement shall survive the Closing.
Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same instrument. Faxed signatures are acceptable.
Headings. Headings of the Articles and Sections of this Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
Waivers. Either the Buyer or Shareholders may, by written notice to the other,
(i) extend the time for the performance of any of the obligations or other
actions of the other under this Agreement; (ii) waive any inaccuracies in the
representations or warranties of the other contained in this Agreement or in any
document delivered pursuant to this Agreement; (iii) waive compliance with any
of the conditions or covenants of the other contained in this Agreement; or (iv)
waive performance of any of the obligations of the other under this Agreement.
Except as provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a breach of any
provision hereunder shall not operate or be construed as a waiver of any prior
or subsequent breach of the same or any other provision hereunder.
Merger of Documents. This Agreement and all agreements and documents
contemplated hereby constitute one agreement and are interdependent upon each
other in all respects.
Severability. If for any reason whatsoever, any one or more of the provisions of
this Agreement shall be held or deemed to be inoperative, unenforceable or
invalid as applied to any particular case or in all cases, such circumstances
shall not have the effect of rendering such provision invalid in any other case
or of rendering any of the other provisions of this Agreement inoperative,
unenforceable or invalid.
Assignability. Neither this Agreement nor any of the parties' rights hereunder
shall be assignable by any party hereto without the prior written consent of the
other parties hereto.
Limited Power of Attorney. Any Shareholder who, by their signature on Schedule A
attached hereto, accepts this offer, hereby grants Xxxxx Xxxxxxx the power to
act as their attorney, on their behalf and only as it relates to this offer, and
to take any and all actions necessary to cause the exchange of their Company
Shares for Buyer Shares as set out in this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement and caused the
same to be duly delivered on their behalf on the day and year first above
written.
UNITECH ENERGY CORP., an Alberta corporation
By:/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, its President
BUYER:
UNITECH ENERGY CORP., a Nevada corporation
By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx, its President
The SHAREHOLDERS, by their signature accompanying their name on Schedule A
attached hereto.
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SCHEDULE A
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxx Aura
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Xxxxx Aura
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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Xxxxxxx Xxxxxx
/s/ Xxxx Xxxx
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Xxxx Xxxx
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Xxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
/s/ Jo Xxx Xxxxxxxxxx
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Jo Xxx Xxxxxxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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Xxxxx Xxxxx
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Xxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxx XxXxxx
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Xxxxx XxXxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxx Xxxx
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Xxxx Xxxx
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
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/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
