EXHIBIT 99.3
EXCHANGE AGREEMENT
This Exchange Agreement (the "Agreement") is entered into as of the
29th day of June 2009 by and between Warp 9, Inc., a Nevada corporation (the
"Company"), HyperSolar, Inc., a Nevada corporation ("HSI"), and the stockholder
of HSI who is listed as the "HSI Stockholder" in the signature block of this
Agreement (the "HSI Stockholder"), with respect to the following facts:
R E C I T A L S
A. HSI Stockholder owns the number of shares of the common stock
of HSI (collectively, "HSI Stock"), listed beneath the HSI
Stockholder's signature to this Agreement.
B. The Company desires to acquire all of the outstanding HSI
Stock held by the HSI Stockholder in exchange (the "Exchange")
for a total of 18,000,000 shares of the Company's common
stock, par value $0.001 per share ("Common Stock").
C. The Company desires to acquire all the outstanding common
stock of HSI held by all of the stockholders of HSI
(collectively, the "HSI Stockholders") such that HSI will
become a wholly owned subsidiary of the Company on the
closing, in consideration for a total of 113,526,605 shares or
80% of the total issued and outstanding Common Stock of the
Company (the "Collective Exchange"), in a tax free
reorganization under Section 368 of the Internal Revenue Code
of 1986, as amended. Accordingly, all of the other HSI
Stockholders are entering into Exchange Agreements with the
Company that are similar to this Agreement, and all such
Exchange Agreements (collectively, the "Exchange Agreements")
are scheduled to close simultaneously.
D. Each holder of HSI Stock will receive 20 shares of the
Company's Common Stock for each share of HSI Stock tendered by
them for the Exchange.
E. After giving effect to the Collective Exchange described in
Recital C of this Agreement, there will be approximately
141,908,256 shares of Common Stock of the Company issued and
outstanding.
F. By executing this Agreement, the HSI Stockholder agrees to
exchange the HSI Stockholder's HSI Stock for shares of the
Company's Common Stock on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties to this Agreement,
and in light of the recitals stated above, the parties to this Agreement hereby
agree as follows:
1. EXCHANGE OF STOCK.
Effective on the date of the Closing (as hereinafter defined) of this
Agreement, the HSI Stockholder hereby conveys all of the HSI Stockholder's HSI
Stock to the Company in consideration for the issuance to the HSI Stockholder of
20 shares of Common Stock (the "Exchange Shares") for each share of HSI Stock
tendered.
2. CLOSING AND CONDITIONS OF CLOSING.
The Closing of the Exchange and the Collective Exchange (the "Closing")
will occur as soon as practicable after the satisfaction, or waiver by the party
for whom the condition benefits, of all of the following conditions:
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A. The Company is reasonably satisfied with its due diligence of
HSI.
B. HSI and the HSI Stockholders are reasonably satisfied with
their due diligence of the Company.
C. The Company effects a one-for-twelve reverse stock split of
all of its issued and outstanding Common Stock (the "Reverse
Split") prior to the Closing.
D. The Company and HSI each obtain the express approval of their
respective Boards of Directors to the Closing of the
Collective Exchange.
E. The Company obtains the express approval of the holders of a
majority of the total issued and outstanding Common Stock of
the Company to the Collective Exchange, the Reverse Split, and
the change of the Company's name from Warp 9, Inc. to
HyperSolar, Inc. (the "Name Change").
F. All of the HSI Stockholders execute Exchange Agreements and
deliver them to the Company, and tender their HSI Stock for
transfer to the Company in accordance with Section 6.3 of this
Agreement.
G. The deliveries described in Section 6 of this Agreement are
made by each of the respective parties to the Exchange
Agreements.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the HSI Stockholder that now and
as of the Closing:
3.1 GOOD STANDING. The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Nevada.
3.2 SUBSIDIARIES. The Company does not own, directly or indirectly, any
capital stock, equity or interest in any corporation, firm, partnership, joint
venture or other entity, other than as disclosed in its public reports filed by
it with the Securities and Exchange Commission ("Public Reports").
3.3 CAPITALIZATION. The authorized capital stock of the Company
consists of 500,000,000 shares of Common Stock, $.001 par value, of which
approximately 340,579,815 shares are outstanding. No shares of preferred stock
are authorized, issued or outstanding. Except as disclosed in Public Reports,
there is no outstanding voting trust agreement or other contract, agreement,
arrangement, option, warrant, call, commitment or other right of any character
obligating or entitling the Company to issue, sell, redeem or repurchase any of
its securities, and there is no outstanding security of any kind convertible
into or exchangeable for any shares of the capital stock of the Company. The
Company has not granted registration rights to any person.
3.4 LIABILITIES. Except as disclosed in Public Reports or incurred in
the ordinary course of business, the Company does not have any material
commitments, liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or otherwise.
3.5 TAXES. To the best knowledge of the Company's management, the
Company has filed all tax returns and reports which were required to be filed on
or prior to the date hereof in respect of all income, withholding, franchise,
payroll, excise, property, sales, use, value-added or other taxes or levies,
imposts, duties, license and registration fees, charges, assessments or
withholdings of any nature whatsoever (together, "Taxes"), and has paid all
Taxes (and any related penalties, fines and interest) which have become due
pursuant to such returns or reports or pursuant to any assessment which has
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become payable, or, to the extent its liability for any Taxes (and any related
penalties, fines and interest) has not been fully discharged, the same have been
properly reflected as a liability on the books and records of the Company and
adequate reserves therefore have been established.
3.6 CONTRACTS. There are no material contracts, instruments,
agreements, indentures, mortgages, guarantees, notes, commitments,
accommodations, letters of credit or other arrangements or understandings,
whether written or oral, outside the ordinary course of business to which the
Company is a party or by which it or any of its properties are bound, except as
disclosed in Public Reports.
3.7 COMPLIANCE WITH LAW. To the best knowledge of the Company's
management, the Company has conducted its business in material compliance with
all applicable laws, ordinances, rules, regulations, court or administrative
order, decree or process ("Applicable Law"). The Company has not received any
notice of violation or claimed violation of any Applicable Law.
3.8 LITIGATION. To the best knowledge of the Company's management,
except as disclosed in Public Reports, there is no claim, dispute, action, suit,
proceeding or investigation pending or, to the knowledge of the Company,
threatened, against the Company, or challenging the validity or propriety of the
transactions contemplated by this Agreement, at law or in equity or admiralty or
before any federal, state, local, foreign or other governmental authority,
board, agency, commission or instrumentality, nor to the knowledge of the
Company, has any such claim, dispute, action, suit, proceeding or investigation
been pending or threatened during the twelve month period preceding the date of
this Agreement. There is no outstanding judgment, order, writ, ruling,
injunction, stipulation or decree of any court, arbitrator or federal, state,
local, foreign or other governmental authority, board, agency, commission or
instrumentality, against the Company. To the best knowledge of the Company's
management, the Company has not received any written or verbal inquiry from any
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality concerning the possible violation of any
Applicable Law.
4. REPRESENTATIONS AND WARRANTIES OF HSI STOCKHOLDER.
HSI Stockholder represents and warrants to the Company that now and as
of the Closing:
4.1 TITLE TO SHARES. HSI Stockholder is the legal and beneficial owner
of the HSI Stock set forth below such HSI Stockholder's name, and, upon
consummation of the Exchange contemplated herein, the Company will acquire from
the HSI Stockholder good and marketable title to the HSI Stock listed as owned
by such HSI Stockholder, and such HSI Stock shall be free and clear of all liens
excepting only such restrictions upon transfer, if any, as may be necessary for
compliance with the federal Securities Act of Securities, as amended (the
"Securities Act").
4.2 ACCESS TO INFORMATION. The HSI Stockholder hereby represents and
warrants that prior to the Closing the HSI Stockholder has reviewed and will
carefully review the updated business and related financial and other
information provided by the Company or disclosed in its Public Reports, and has
had a complete opportunity to ask questions of, and receive additional
information from, the Company's management.
4.3 SOPHISTICATION AND KNOWLEDGE. The HSI Stockholder is an "accredited
investor" (as defined in Rule 501(a) under the Securities Act) and acknowledges
that it has sufficient experience in financial and business matters to be
capable of utilizing such information to evaluate the merits and risks of the
HSI Stockholder's acquisition of the Exchange Shares, and to make an informed
decision relating to said acquisition.
4.4 EVALUATION OF RISKS. The HSI Stockholder has evaluated the risks of
this investment in the Company, including those risks particularly described in
the Public Reports, and has determined that the investment is suitable for the
HSI Stockholder. The HSI Stockholder acknowledges that prior to the Closing of
the business combination of which this Exchange is a part, the Company has only
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those material assets and liabilities disclosed in the Public Reports. The HSI
Stockholder has adequate financial resources for an investment of this
character, and at this time can bear a complete loss of this investment. The HSI
Stockholder understands that any forward looking statements in the Public
Reports or otherwise made by the Company are mere estimates and may not reflect
the actual results of the Company's operations.
4.5 NO FEDERAL REGISTRATION. The HSI Stockholder understands that the
Exchange Shares are not being registered under the Securities Act on the ground
that the issuance thereof is exempt under Section 4(2) of the Securities Act and
Regulation D promulgated thereunder as a transaction by an issuer not involving
any public offering, and that reliance on such exemption is predicated in part
on the truth and accuracy of the undersigned's representations and warranties,
and those of the other purchasers of Exchange Shares.
4.6 NO STATE REGISTRATION. The HSI Stockholder understands that the
Exchange Shares are not being registered under state securities laws on the
basis that the issuance thereof is exempt as an offer and sale not involving a
public offering in such state. The HSI Stockholder understands that reliance on
such exemptions is predicated in part on the truth and accuracy of the HSI
Stockholder's representations and warranties and those of other purchasers of
Exchange Shares. The undersigned covenants not to sell, transfer or otherwise
dispose of an Exchange Share unless such Exchange Share has been registered
under the applicable state securities laws, or an exemption from registration is
available.
4.7 ACKNOWLEDGMENT OF NO LIQUIDITY. The HSI Stockholder has no need for
any liquidity in this investment and is able to bear the economic risk of this
investment for an indefinite period of time. The HSI Stockholder has been
advised and is aware that (i) it may not be possible to liquidate the investment
readily; (ii) the HSI Stockholder must bear the economic risk of its investment
in the Exchange Shares for an indefinite period of time because the Exchange
Shares have not been registered under the Securities Act or state law and,
therefore, cannot be sold unless they are subsequently registered under the
Securities Act and applicable state law or an exemption from such registration
is available; (iii) a legend as to the restrictions on transferability of the
Exchange Shares referred to herein will be made on the document evidencing the
Exchange Shares, and (iv) a notation in the appropriate records of the Company
will be made with respect to any restrictions on transfer of Exchange Shares.
The restrictive legend on the certificate will essentially state as follows:
THE SECURITIES REPRESENTED BY THSI CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF Securities, AS AMENDED (THE "ACT"), NOR
UNDER ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE SOLD,
TRANSFERRED, CONVEYED, HYPOTHECATED OR OTHERWISE ASSIGNED UNLESS THEY
ARE REGISTERED UNDER THE ACT OR UNLESS AN OPINION OF COUNSEL OR OTHER
EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY IS PRESENTED INDICATING
THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
4.8 RELIANCE - NO ORAL REPRESENTATIONS. The HSI Stockholder has relied
solely upon the Public Reports and independent investigations made by the HSI
Stockholder or its purchaser representative with respect to the Exchange Shares
acquired herein, and no oral or written representations beyond the Public
Reports and this Agreement have been made to the HSI Stockholder.
4.9 AUTHORITY. If the HSI Stockholder is a partnership, corporation or
trust, it has been duly formed, is validly existing, has full power and
authority to make this investment, and has not been formed for the specific
purpose of investing in the Exchange Shares. This Agreement and all other
documents executed in connection with this acquisition of Exchange Shares are
valid, binding and enforceable agreements of the HSI Stockholder.
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4.10 ACKNOWLEDGMENT OF INVESTMENT RISKS. The HSI Stockholder hereby
understands and acknowledges the risk factors relating to this investment,
including but not limited to those described in the Public Reports and in this
Agreement, and that the purchase of the Exchange Shares is highly speculative
and subject to a high degree of risk.
4.11 INFORMATION REGARDING HSI. The business, financial, legal and
other information furnished by HSI and the HSI Stockholders to the Company
regarding HSI is and will be accurate, complete and truthful in all material
respects, and will not contain a material misrepresentation or omit a material
fact concerning HSI that, if disclosed in light of the circumstances, would have
had a material affect on the Company's decision to acquire the HSI Stock from
all HSI Stockholders.
4.12 ELECTION NOT TO EXERCISE DISSENTER'S RIGHTS. The HSI Stockholder
hereby represents and warrants that the HSI Stockholder has reviewed the laws
providing for dissenters' rights under the corporation laws of the States of
Nevada and California and expressly elects not to exercise dissenters' rights
and instead to participate in this Exchange pursuant to this Agreement.
5. COVENANTS.
5.1 ACCESS TO INFORMATION. The Company and HSI covenant to each other
that their authorized representatives will provide complete reasonable access to
the authorized representatives of the other party of the corporate books,
records, financial statements, legal documents and relevant business information
relating to itself to enable each party to complete their due diligence of the
other party prior to the Closing of the Collective Exchange.
5.2 SPECIAL COVENANTS. The Company covenants to use its best efforts to
accomplish the actions described in Sections 2(C), 2(D), 2(E) and 2(G) of this
Agreement prior to or at the Closing, if the conditions described in Sections
2(A) and 2(F) are satisfied. The HSI Stockholder and HSI covenant to use their
best efforts to accomplish the actions described in Sections 2(F) and 2(G) of
this Agreement prior to or at the Closing, if the condition described in Section
2(B) is satisfied.
5.3 FURTHER ASSURANCES. Each of the parties to this Agreement will use
its reasonable commercial efforts to proceed promptly with the transactions
contemplated herein, to fulfill the conditions precedent for such party's
benefit or to cause the same to be fulfilled, and to execute such further
documents and other papers and perform such further acts as may be reasonably
required or desirable to carry out the provisions of this Agreement and to
consummate the transactions contemplated herein.
5.4 OPERATION OF BUSINESS. From the date hereof through the date of the
Closing, except as expressly provided herein, each of the Company and HSI agrees
that it will report to the other party any indication of potential material
adverse factors in its business or any litigation that may be threatened whereby
one of the parties would be a defendant.
6. DELIVERIES.
6.1 ITEMS TO BE DELIVERED BY THE COMPANY TO HSI PRIOR TO OR AT CLOSING.
(a) Certificate of good standing of the Company in the
Company's state of incorporation.
(b) Resolutions from the Company's Board of Directors
approving the Closing of the Collective Exchange, the making and performing of
the Exchange Agreements, the Reverse Split, the Name Change, and any other
resolutions reasonably necessary to accomplish the transactions contemplated by
this Agreement, including but not limited to those enabling compliance with
applicable federal and state securities laws and the rules and regulations of
the Securities and Exchange Commission and the OTC Bulletin Board.
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(c) Resolutions from the Company's shareholders approving the
Exchange, the Collective Exchange, the Reverse Split and the Name Change,
thereby authorizing the issuance of the Exchange Shares.
(d) An Exchange Agreement duly executed by an authorized
representative of the Company.
(e) Any other document reasonably requested by HSI that it
deems necessary for the consummation of the transactions contemplated by this
Agreement.
6.2 ITEMS TO BE DELIVERED BY THE COMPANY TO THE HSI STOCKHOLDER AT THE
CLOSING.
(a) An Exchange Agreement duly executed by an authorized
representative of the Company.
(b) A certificate representing the Exchange Shares will be
delivered to the HSI Stockholder within three business days after the Closing.
6.3 ITEMS TO BE DELIVERED TO THE COMPANY BY HSI AND THE HSI STOCKHOLDER
PRIOR TO OR AT THE CLOSING.
(a) Certificate of good standing of HSI in HSI's state of
incorporation.
(b) Exchange Agreements duly executed by HSI and each HSI
Stockholder, and stock certificates evidencing the HSI Stock with duly executed
stock powers endorsed for transfer of the HSI Stock to the Company.
(c) Any other document reasonably requested by the Company
that it deems necessary for the consummation of the transactions contemplated by
this Agreement and the Exchange Agreements.
7. INDEMNIFICATION.
7.1 INDEMNITY BY THE COMPANY. The Company agrees to defend, indemnify
and hold harmless the HSI Stockholder from and against, and to reimburse the HSI
Stockholder with respect to, all liabilities, losses, costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements
(collectively the "Losses") asserted against or incurred by the HSI Stockholder
by reason of, arising out of, or in connection with any material breach of any
representation, warranty or covenant contained in this Agreement made by the
Company or in any document or certificate delivered by the Company pursuant to
this Agreement or in connection with the transactions contemplated by this
Agreement.
7.2 INDEMNITY BY HSI STOCKHOLDER. Each HSI Stockholder severally to the
extent of such HSI Stockholder's pro rata share of all outstanding HSI Stock,
agrees to defend, indemnify and hold harmless the Company from and against, and
to reimburse the Company with respect to, all losses, including, without
limitation, reasonable attorneys' fees and disbursements, asserted against or
incurred by the Company by reason of, arising out of, or in connection with any
material breach of any representation, warranty or covenant contained in this
Agreement and made by such HSI Stockholder or in any document or certificate
delivered by such HSI Stockholder pursuant to this Agreement or in connection
with the transactions contemplated by this Agreement.
7.3 INDEMNIFICATION PROCEDURE. A party (an "Indemnified Party") seeking
indemnification shall give prompt notice to the other party (the "Indemnifying
Party") of any claim for indemnification arising under this Section 7. The
Indemnifying Party shall have the right to assume and to control the defense of
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any such claim with counsel reasonably acceptable to such Indemnified Party, at
the Indemnifying Party's own cost and expense, including the cost and expense of
reasonable attorneys' fees and disbursements in connection with such defense, in
which event the Indemnifying Party shall not be obligated to pay the fees and
disbursements of separate counsel for such Indemnified Party in such action. In
the event, however, that such Indemnified Party's legal counsel shall determine
that defenses may be available to such Indemnified Party that are different from
or in addition to those available to the Indemnifying Party, or that there could
reasonably be expected to be a conflict of interest if such Indemnifying Party
and the Indemnified Party have common counsel in any such proceeding, or if the
Indemnifying Party has not assumed the defense of the action or proceedings,
then such Indemnified Party may employ separate counsel to represent or defend
such Indemnified Party, and the Indemnifying Party shall pay the reasonable fees
and disbursements of counsel for such Indemnified Party. No settlement of any
such claim or payment in connection with any such settlement shall be made
without the prior consent of the Indemnifying Party which consent shall not be
unreasonably withheld.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties and statements made by a party in
this Agreement or in any document or certificate delivered pursuant hereto shall
survive the date of the Closing for the period of the applicable statute of
limitations. Each of the parties hereto is executing and performing the
provisions of this Agreement in reliance upon the representations, warranties,
covenants and agreements contained in this Agreement, and not upon any
investigation which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth in this Agreement.
9. TERMINATION OF THIS AGREEMENT.
This Agreement may be terminated by the mutual written consent of all
parties to it, or by any party to it for any reason or no reason if the Closing
does not occur by September 30, 2009 through no fault or breach of this
Agreement by the party seeking to terminate the Agreement.
10. INJUNCTIVE RELIEF.
10.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other parties if there is a failure to comply with any
covenants or provisions of this Agreement, and agrees that in the event of any
breach of any covenant or provision, the other parties to this Agreement will
not have an adequate remedy at law.
10.2 INJUNCTIVE RELIEF
It is therefore agreed that any party to this Agreement who is entitled
to the benefit of the covenants or provisions of this Agreement which have been
breached, in addition to any other rights or remedies which they may have, shall
be entitled to immediate injunctive relief to enforce such covenants and
provisions, and that in the event that any such action or proceeding is brought
in equity to enforce them, the defaulting or breaching party will not urge a
defense that there is an adequate remedy at law. Furthermore, no party shall be
obligated to obtain or post any surety or other bond in order to seek equitable
remedies under this Agreement.
11. WAIVERS.
If any party shall at any time waive any rights hereunder resulting
from any breach by the other party of any of the provisions of this Agreement,
such waiver is not to be construed as a continuing waiver of other breaches of
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the same or other provisions of this Agreement. Resort to any remedies referred
to herein shall not be construed as a waiver of any other rights and remedies to
which such party is entitled under this Agreement or otherwise.
12. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon, enforceable against and inure to
the benefit of, the parties hereto and their respective heirs, administrators,
executors, personal representatives, successors and assigns, and nothing herein
is intended to confer any right, remedy or benefit upon any other person. This
Agreement may not be assigned by any party hereto except with the prior written
consent of the other parties, which consent shall not be unreasonably withheld.
13. ENTIRE AND SOLE AGREEMENT.
This Agreement and any instruments and agreements to be executed
pursuant to this Agreement, set forth the entire understanding of the parties
hereto with respect to its subject matter, merge and supersede all prior and
contemporaneous understandings with respect to its subject matter, and may not
be waived or modified, in whole or in part, except by a writing signed by each
of the parties hereto. Failure of any party to enforce any provision of this
Agreement shall not be construed as a waiver of its rights under such provision.
14. EXPENSES.
Each party shall separately pay for their respective costs of legal
services, accounting, auditing, communications and due diligence in connection
with the transactions contemplated hereby.
15. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada, and the venue for any action hereunder shall be
in the appropriate forum in the County of Xxxxx, State of Nevada.
16. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
17. ATTORNEYS' FEES AND COSTS.
In the event that either party must resort to legal action in order to
enforce the provisions of this Agreement or to defend such action, the
prevailing party shall be entitled to receive reimbursement from the
nonprevailing party for all reasonable attorneys' fees and all other costs
incurred in commencing or defending such action, or in enforcing this Agreement,
including but not limited to post judgment costs.
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18. FURTHER ACTS.
The parties to this Agreement hereby agree to execute any other
documents and take any further actions which are reasonably necessary or
appropriate in order to implement the transactions contemplated by this
Agreement.
19. AUTHORIZED SIGNATURES.
Each party to this Agreement hereby represents that the persons signing
below are duly authorized to execute this Agreement on behalf of their
respective party.
20. SEVERABILITY.
The provisions of this Agreement are severable and in the event that
one or more of its provisions are deemed to be unenforceable or invalid for any
reason, such finding will not affect the enforceability or validity of any other
provision of this Agreement, which shall remain in full force and effect.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
COMPANY: WARP 9, INC.
By: /s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx, President
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Chairman
HSI: HYPERSOLAR, INC.
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Xxxxxxxxxxx Xxxxxxx, Chief Executive Officer
HSI STOCKHOLDER: WINGS FUND, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
0000 XxXxxx Xxxxx
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Xxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000
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City, State and Zip Code
900,000
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Number of Shares of HSI Stock
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