STOCK EXCHANGE AGREEMENT
STOCK EXCHANGE AGREEMENT, dated as of April 19, 1999 by and
between XXXXX XXXXXXXX ("PURCHASER") and XXXXX XXXXXXXX
ENTERTAINMENT, INC. ("SELLER").
W I T N E S S E T H
WHEREAS, PURCHASER and SELLER are parties to that certain Joint
Venture Agreement dated February 26, 1999, wherein PURCHASER was
granted warrants (the "Warrants") to acquire 26,000 shares of AMS
Acquisition Corp., a Nevada corporation ("AMS");
SELLER desires to exchange 1,250,000 shares of Xxxxx Xxxxxxxx
Entertainment, Inc. Common Stock (the "Shares") for the Warrants on
the terms and conditions set forth in this Stock Exchange Agreement
(hereinafter called "Agreement"); and
WHEREAS, PURCHASER desires to acquire the Shares on the terms
and conditions set forth herein;
NOW THEREFORE, in consideration of the promises and respective
mutual agreements herein contained, it is agreed by and between the
parties hereto as follows:
ARTICLE 1
EXCHANGE OF THE SHARES
1.1 Exchange of the Shares. Upon the execution of this
Agreement as provided in Section 3.1 hereto (the "Closing"), subject
to the terms and conditions herein set forth, and on the basis of
the representations, warranties and agreements herein contained,
SELLER shall exchange with PURCHASER, and PURCHASER shall exchange
with SELLER, the Shares and the Warrants, respectively.
1.2 Instruments of Conveyance and Transfer. Simultaneously
with the Closing, SELLER shall deliver a certificate or certificates
representing the Shares to PURCHASER, in form and substance
satisfactory to PURCHASER, as shall be effective to vest in
PURCHASER all right, title and interest in and to all of the Shares,
as set forth in Section 3 herein.
1.3 Consideration and Payment for the Shares. In
consideration for the Shares PURCHASER shall execute a Termination
of Warrant in form and substance substantially similar to Exhibit A
attached hereto and made a part hereof.
ARTICLE 2
REPRESENTATIONS AND COVENANTS OF SELLER AND PURCHASER
2.1 The SELLER hereby represents and warrants that:
(a) It shall transfer title, in and to the Shares, to the
PURCHASER free and clear of all liens, security
interests, pledges, encumbrances, charges,
restrictions, demands and claims, of any kind and
nature whatsoever, whether direct or indirect or
contingent, except as set forth in Paragraph 2.2 herein.
(b) If the Company at any time proposes to register any
of its securities under the Securities Act of 1933,
including under an SB-2 Registration Statement or
otherwise, it will give written notice to PURCHASER
of its intention so to do. Upon the written request
of PURCHASER given within 30 days after receipt of
any such notice, the Company will use its best
efforts to cause all of the Shares to be registered
under the Act (with the securities which the Company
at the time propose to register); provided, however,
that the Company may, as a condition precedent to its
effective such registration, require PURCHASER to
agree with the Company and the managing underwriter
or underwriters of the offering to be made by the
Company in connection with such registration that
PURCHASER will not sell any securities of the same
class or convertible into the same class as those
registered by the Company (including any class into
which the securities registered by the Company are
convertible) for such reasonable period after such
registration becomes effective (not exceeding 90
days) as shall then be specified in writing by such
underwriter or underwriters if in the opinion of such
underwriter or underwriters the Company's offering
would be materially adversely affected in the absence
of such an agreement. All expenses incurred by the
Company in complying with this section, including
without limitation all registration and filing fees,
listing fees, printing expenses, fees and
disbursements of all independent accountants, or
counsel for the Company and the expense of any
special audits incident to or required by any such
registration and the expenses of complying with the
securities or blue sky laws of any jurisdiction shall
be paid by the Company.
2.2 On the Closing Date as defined herein in Section 3.1, the
SELLER shall deliver to the PURCHASER certificates representing the
Shares subject to no liens, security interests, pledges,
encumbrances, charges, restrictions, demands or claims in any other
party whatsoever, except as set forth in the legend on the
certificate(s), which legend shall provide as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY STATE,
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF FOR A PERIOD OF ONE
YEAR FROM THE ISSUANCE THEREOF EXCEPT (i) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ANY
APPLICABLE STATE LAWS OR (ii) UPON THE EXPRESS WRITTEN
AGREEMENT OF THE COMPANY AND COMPLIANCE, TO THE EXTENT
APPLICABLE, WITH RULE 144 UNDER THE ACT (OR ANY SIMILAR
RULE UNDER THE ACT RELATING TO THE DISPOSITION OF
SECURITIES.)
2.3. The PURCHASER hereby represents and warrants that:
(a) PURCHASER acknowledges that the Shares will be
"restricted securities" (as such term is defined in
Rule 144 promulgated under the Securities Act of
1933, as amended ("Rule 144")), that the Shares will
include the foregoing restrictive legend, and, except
as otherwise set forth in this Agreement, that the
Shares cannot be sold for a period of one year from
the date of issuance unless registered with the SEC
and qualified by appropriate state securities
regulators, or unless PURCHASER obtains written
consent from the SELLER and otherwise complies with
an exemption from such registration and qualification
(including, without limitation, compliance with Rule
144).
(b) The PURCHASER has the full right, power and authority
to enter into this Agreement and to carry out and
consummate the transaction contemplated herein. This
Agreement constitutes the legal, valid and binding
obligation of PURCHASER.
(c) The PURCHASER acknowledges that investment in
the Shares involves substantial risks and is suitable only
for persons of adequate financial means who can bear the
economic risk of an investment in the Shares for an
indefinite period of time. PURCHASER further represents
that he:
(1) has adequate means of providing for his or her current needs
and possible personal contingencies, has no need for liquidity
in his investment in the Shares, is able to bear the substantial
economic risks of an investment in the Shares for an indefinite period,
and, at the present time, can afford a complete loss of his
investment;
(2) is an "Accredited Investor" as that term is defined in Section
501(a) of Regulation D promulgated underthe Securities Act of 1933,
as amended (the "Act"), in that (i) PURCHASER is a natural person
whose individual net worth, or joint net worth with PURCHASER's spouse,
exceeds $1,000,000 and either he is able to bear the economic risk of
investment in the proposed investments or the proposed investments will
not exceed 10% of his net worth or joint net worth with PURCHASER's
spouse and/or (ii) PURCHASER is a natural person who had individual
income in excess of $200,000 in each of the two most recent years, or
joint income withsuch investor's spouse in excess of $300,000 in each
of those years and reasonably expects to reach the same income level
in the current year, and either
PURCHASER is able to bear the economic risk of investment in the
proposed investments or the proposed investments will not exceed
10% of his or her net worth or joint net worth with PURCHASER's
spouse;
(3) does not have an overall commitment to investments which are not
readily marketable that is disproportionate to his net worth,
and that his investment in the Shares will not cause such overall
commitment to become excessive;
(4) is acquiring the Shares for his own account, for investment
purposes only and not with a view toward resale, assignment or
distribution thereof, and no other person has a direct or indirect,
beneficial interest, in whole or in part, in such Shares;
(5) has such knowledge and experience in financial, tax and business
matters that he is capable of evaluating the merits and risks of
an investment in the Shares;
(6) has been given the opportunity to ask questions of and to receive
answers from persons acting on each of the SELLERS' behalf concerning
the terms and conditions of this transaction and also has been given
the opportunity to obtain any additional information which each
of the SELLERS possess or can acquire without unreasonable effort
or expense. As a result, PURCHASER is cognizant of the financial
condition, capitalization, use of proceeds from this financing and
the operations and financial condition of Xxxxx Xxxxxxxx
Entertainment, Inc., has available full information concerning their
affairs and has been able to evaluate the merits and risks of
the investment in the Shares; and
ARTICLE 3
CLOSING AND DELIVERY OF DOCUMENTS
3.1 Closing. The Closing shall be deemed to have occurred
upon the date of signing of this Agreement. Subsequent to the
signing, the following shall occur as a single integrated transaction:
3.2 Delivery by SELLER.
(a) SELLER shall deliver to the PURCHASER the stock
certificate and any and all other instruments of conveyance
and transfer required by Section 1.2.
(b) SELLER shall deliver, or cause to be delivered, to the
PURCHASER such instruments, documents and certificates as are
required to be delivered by SELLER or its representatives
pursuant to the provisions of this Agreement.
3.3 Delivery by PURCHASER.
(a) The PURCHASER shall deliver the Termination of Warrant as
required in Section 1.3.
(b) The PURCHASER shall deliver, or cause to be delivered, to
SELLER such instruments, documents and certificates as are
required to be delivered by the PURCHASER or its
representatives pursuant to the provisions of this Agreement.
ARTICLE 4
TERMINATION, AMENDMENT AND WAIVER
4.1 Termination. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may be terminated and
the transactions contemplated hereby may be abandoned at any time
prior to delivery of the Shares and Termination of Warrant solely by
the mutual consent of all of the parties.
4.2 Waiver and Amendment. Any term, provision, covenant,
representation, warranty or condition of this Agreement may be
waived, but only by a written instrument signed by the party
entitled to the benefits thereof. The failure or delay of any party
at any time or times to require performance of any provision hereof
or to exercise its rights with respect to any provision hereof shall
in no manner operate as a waiver of or affect such party's right at
a later time to enforce the same. No waiver by any party of any
condition, or of the breach of any term, provision, covenant,
representation or warranty contained in this Agreement, in any one
or more instances, shall be deemed to be or construed as a further
or continuing waiver of any such condition or breach or waiver of
any other condition or of the breach of any other term, provision,
covenant, representation or warranty. No modification or amendment
of this Agreement shall be valid and binding unless it be in writing
and signed by all parties hereto.
ARTICLE 5
MISCELLANEOUS
5.1 Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties hereto with respect to
the transactions contemplated hereby, and supersedes all prior
agreements, arrangements and understandings related to the subject
matter hereof. No understanding, promise, inducement, statement of
intention, representation, warranty, covenant or condition, written
or oral, express or implied, whether by statute or otherwise, has
been made by any party hereto which is not embodied in this
Agreement or the written statements, certificates, or other
documents delivered pursuant hereto or in connection with the
transactions contemplated hereby, and no party hereto shall be bound
by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not so
set forth.
5.2 Notices. All notices provided for in this Agreement
shall be in writing signed by the party giving such notice, and
delivered personally or sent by overnight courier or messenger or
sent by registered or certified mail (air mail if overseas), return
receipt requested, or by telex, facsimile transmission, telegram or
similar means of communication. Notices shall be deemed to have
been received on the date of personal delivery, telex, facsimile
transmission, telegram or similar means of communication, or if sent
by overnight courier or messenger, shall be deemed to have been
received on the next delivery day after deposit with the courier or
messenger, or if sent by certified or registered mail, return
receipt requested, shall be deemed to have been received on the
third business day after the date of mailing. Notices shall be sent
to the addresses set forth below:
If to SELLER:
Xxxxx Xxxxxxxx Entertainment, Inc.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Facsimile (000) 000-0000
Attn: Xxx Xxxxxxxx
With a copy to:
Law Offices of M. Xxxxxxx Xxxxxx, Esq.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: M. Xxxxxxx Xxxxxx, Esq.
If to Purchaser:
Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
5.3 Arbitration. If a dispute or claim shall arise with
respect to any of the terms or provisions of this Agreement, or with
respect to the performance by either of the parties under this
Agreement, then either party may, by notice as herein provided,
require that the dispute be submitted under the Commercial
Arbitration Rules of Judicial Mediation and Arbitration Services,
Inc. to an arbitrator in good standing with Judicial Mediation and
Arbitration Services, Inc. within fifteen (15) days after such
notice is given. The written decision of the single arbitrator
ultimately appointed by or for both parties shall be binding and
conclusive on the parties. Judgment may be entered on such written
decision by the single arbitrator in any court having jurisdiction
and the parties consent to the jurisdiction of the Municipal and
Superior Court of Orange County, California for this purpose. Any
arbitration undertaken pursuant to the terms of this section shall
occur in Orange County, California.
5.4 Choice of Law and Venue. This Agreement and the
rights of the parties hereunder shall be governed by and construed
in accordance with the laws of the State of California including all
matters of construction, validity, performance, and enforcement and
without giving effect to the principles of conflict of laws. Any
action brought by any party hereto shall be brought within the State
of California, County of Orange.
5.5 Jurisdiction. The parties submit to the jurisdiction
of the Courts of the State of California or a Federal Court
empaneled in the State of California for the resolution of all legal
disputes arising under the terms of this Agreement, including, but
not limited to, enforcement of any arbitration award.
5.6 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but
all of which shall together constitute one and the same instrument.
5.7 Attorneys' Fees. Except as otherwise provided herein,
if a dispute should arise between the parties including, but not
limited to arbitration, the prevailing party shall be reimbursed by
the nonprevailing party for all reasonable expenses incurred in
resolving such dispute, including reasonable attorneys' fees
exclusive of such amount of attorneys' fees as shall be a premium
for result or for risk of loss under a contingency fee arrangement.
5.8 Taxes. Any income taxes required to be paid in
connection with the payments due hereunder, shall be borne by the
party required to make such payment. Any withholding taxes in the
nature of a tax on income shall be deducted from payments due, and
the party required to withhold such tax shall furnish to the party
receiving such payment all documentation necessary to prove the
proper amount to withhold of such taxes and to prove payment to the
tax authority of such required withholding.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written hereinabove.
PURCHASER SELLER
XXXXX XXXXXXXX Xxxxx Xxxxxxxx Entertainment, Inc.
/s/Xxxxx Xxxxxxxx /s/Xxxxxx Xxxxxxxx
By: Xxxxxx Xxxxxxxx
Its: President
EXHIBIT "A"
TERMINATION OF WARRANT
This Termination of Warrant is effective that 19th day of
April, 1999, by and between Xxxxx Xxxxxxxx ("Holder") and Xxxxx
Xxxxxxxx Entertainment, Inc., a Colorado corporation ("JNE").
WHEREAS, Holder and JNE are parties to that certain Joint
Venture Agreement dated February 26, 1999, wherein Holder was
granted warrants (the "Warrants") to acquire 26,000 shares (the
"Warrant Shares") of AMS Acquisition Corp., a Nevada corporation
("AMS");
WHEREAS, by their execution hereof, the parties desire to
terminate the Warrants and any and all of Holder's rights to acquire
the Warrant Shares.
NOW, THEREFORE, BE IT RESOLVED, THAT the Warrants and any and
all of Holder's rights to the Warrant Shares are hereby terminated
in their entirety.
IN WITNESS WHEREOF, the parties hereto have executed this
Termination of Warrant as of the date first written hereinabove.
HOLDER JNE
Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx Entertainment, Inc.
/s/Xxxxx Xxxxxxxx /s/Xxxxxx Xxxxxxxx
By: Xxxxxx Xxxxxxxx
Its: President
