Incoming, Inc. 8-K
Exhibit 10.1
EXCHANGE AGREEMENT
This EXCHANGE
AGREEMENT (the “Agreement”), dated September 30, 2009
(the “Agreement”) is entered into by and among National
Association of Professional Minorities, a limited liability company
organized and existing under the laws of New Jersey,
(“NAPM”), Incoming, Inc., a Nevada
corporation (“ICNN”), and the members of
NAPM as listed in Exhibit A to this Agreement (collectively the
“NAPM Members”) (ICNN, NAPM and each of the NAPM
Members each a “Party” and collectively the
“Parties”).
WHEREAS, the
NAPM Members collectively own a 100% interest in NAPM (the "NAPM
Units");
WHEREAS, the Parties consider it in
their best interests for the NAPM members to exchange the NAPM
Units for One Million (1,000,000) shares of common stock of ICNN,
par value $ 0.001 per share (the “ICNN Shares”);
and
WHEREAS, it is
the intention of the Parties that: (i) ICNN shall acquire 100% of
the NAPM Units in exchange for the ICNN Shares set forth
herein; (ii) In addition to the ICNN Shares, the NAPM Members shall
also receive as consideration options to purchase additional shares
of ICNN common stock as set forth herein (the “ICNN
Options”); and (iii) said exchange shall qualify as a
transaction in securities exempt from registration or qualification
under regulation D of the Securities Act of 1933, as
amended and in effect on the date of this Agreement (the
“Securities Act”).
NOW, THEREFORE,
in consideration of the mutual terms, conditions and other
agreements set forth herein, and for other good and valuable
consideration, the sum and sufficiency of which is hereby
acknowledged, the Parties hereto hereby agree as
follows:
ARTICLE I
EXCHANGE OF UNITS FOR COMMON
STOCK
Section
1.1 Exchange of NAPM
Units for ICNN Shares .
On the Closing
Date (as hereinafter defined) and subject to the terms and
conditions set forth in this Agreement, NAPM Members shall sell,
assign, transfer, convey and deliver the NAPM Units (representing
100% of the issued and outstanding NAPM Units), to ICNN, and ICNN
shall accept the NAPM Units from the NAPM Members in exchange
for:
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the issuance to
the NAPM Members of a total of One Million (1,000,000) newly issued
common shares of ICNN, as allocated and set forth opposite of the
names of each of the NAPM Members in Exhibit A hereto;
and
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the issuance to
the NAPM Members of options to purchase a total of Two Million
(2,000,000) common shares of ICNN at an exercise price
of Fifty Cents ($0.50) per share, pursuant to an option agreement
in the form set forth in Exhibit B hereto, the options
to be allocated as set forth opposite of the names
of each of the NAPM Members in Exhibit A
hereto.
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Section
1.2 Capitalization.
On the Closing
Date, immediately before the transactions to be consummated
pursuant to this Agreement, ICNN shall have authorized (a)
75,000,000 shares of Common Stock, par value $ 0.001 per
share, of which 9,570,000 shares shall be issued and
outstanding, all of which are duly authorized, validly issued and
fully paid.
Section
1.3 Closing
.
The closing of
the transactions contemplated by this Agreement (“
Closing ”) shall take place at 10:00 a.m. E.S.T. on or
before October 1, 2009 (“ Closing Date ”) at a
place mutually agreed upon by the Parties. At the Closing, NAPM
Members shall deliver to ICNN 100% of the NAPM
Units. In full consideration and exchange for the NAPM
Units, ICNN shall issue and exchange with NAPM Members the ICNN
Shares, and the ICNN Options.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
ICNN
ICNN hereby,
jointly and severally, represents, warrants and agrees as
follows:
Section
2.1 Corporate
Organization.
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ICNN is a
corporation duly organized, validly existing and in good standing
under the laws of Nevada, and has all requisite corporate power and
authority to own its properties and assets and to conduct its
business and is duly qualified to do business in good standing in
each jurisdiction in which the nature of the business conducted by
ICNN or the ownership or leasing of its properties makes such
qualification and being in good standing necessary, except where
the failure to be so qualified and in good standing will not have a
material adverse effect on the business, operations, properties,
assets, condition or results of operation of ICNN (a "ICNN Material
Adverse Effect").
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Copies of the
Articles of Incorporation and By-laws of ICNN, with all amendments
thereto as of the date hereof, have been furnished to NAPM and the
NAPM Members, and such copies are accurate and complete as of the
date hereof. The minute books of ICNN are current as required by
law, contain the minutes of all meetings of the Board of Directors
and shareholders of ICNN from its date of incorporation to the date
of this Agreement, and adequately reflect all material actions
taken by the Board of Directors and shareholders of
ICNN.
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Section
2.2 Capitalization of
ICNN .
Immediately
prior to the issuance of the ICNN Shares, the authorized
capital stock of ICNN consists of (a) 75,000,000 shares
of Common Stock, par value $0.001 per share, of which
9,570,000 shares are issued and outstanding, all of
which are duly authorized, validly issued and fully paid. The
Parties agree that they have been informed of the issuances of the
ICNN Shares, and that all such issuances of ICNN Shares pursuant to
this Agreement will be in accordance with the provisions of this
Agreement. All of the ICNN Shares to be issued pursuant to this
Agreement have been duly authorized and will be validly issued,
fully paid and non-assessable and no personal liability will attach
to the ownership thereof and in each instance, shall have been
issued in accordance with the registration requirements of
applicable securities laws or an exemption therefrom. As
of the date of this Agreement there are no outstanding options,
warrants, agreements, commitments, conversion rights, preemptive
rights or other rights to subscribe for, purchase or otherwise
acquire any shares of capital stock or any un-issued or treasury
shares of capital stock of ICNN.
Section
2.3 Subsidiaries and
Equity Investments .
ICNN has
no subsidiaries or equity interest in any corporation, partnership
or joint venture.
Section
2.4 Authorization and
Validity of Agreements .
ICNN has all
corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby and upon the execution and
delivery by NAPM and the NAPM Members and the performance of their
obligations herein, will constitute, a legal, valid and binding
obligation of ICNN. The execution and delivery of this Agreement by
ICNN and the consummation by ICNN of the transactions contemplated
hereby have been duly authorized by all necessary corporate action
of ICNN, and no other
corporate
proceedings on the part of ICNN are necessary to authorize this
Agreement or to consummate the transactions contemplated
hereby.
Section2.5 No Conflict or Violation .
The execution,
delivery and performance of this Agreement by ICNN do not and will
not (i) violate or conflict with any provision of its Articles of
Incorporation or By-laws, (ii) violate any provision of law, or any
order, judgment or decree of any court or other governmental or
regulatory authority, (iii) violate or result in a breach of or
constitute (with due notice or lapse of time or both) a default
under, or give to any other entity any right of termination,
amendment, acceleration or cancellation of, any contract, lease,
loan agreement, mortgage, security agreement, trust indenture or
other agreement or instrument to which ICNN is a Party or by which
it is bound or to which any of its respective properties or assets
is subject, (iv) result in the creation or imposition of any lien,
charge or encumbrance of any kind whatsoever upon any of the
properties or assets of ICNN, or (v) result in the cancellation,
modification, revocation or suspension of any of the licenses,
franchises or permits to which ICNN is bound.
Section
2.6 Consents and
Approvals .
No consent,
waiver, authorization or approval of any governmental or regulatory
authority, domestic or foreign, or of any other person, firm or
corporation, is required in connection with the execution and
delivery of this Agreement by ICNN or the performance by ICNN of
its obligations hereunder.
Section
2.7 Absence of Certain
Changes or Events .
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As of the date
of this Agreement, ICNN does not know or have reason to know of any
event, condition, circumstance or prospective development which
threatens or may threaten to have a material adverse effect on the
assets, properties, operations, prospects, net income or financial
condition of ICNN.
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There has not
been any declaration, setting aside or payment of dividends or
distributions with respect to shares of capital stock of ICNN;
and
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Section
2.8 Disclosure .
This Agreement
and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of ICNN in connection with the
transactions contemplated by this Agreement, when taken together,
do not contain any untrue statement of a material fact or omit any
material fact necessary in order to make the statements contained
herein and/or therein not misleading.
Section
2.9 Financial
Statements .
The audited
balance sheet of ICNN and related statements of operations, cash
flow and shareholders' equity (“ICNN Financial
Statements”) fairly present in all material respects the
financial position of ICNN as of the respective dates
thereof. All notes and statements contained within the
Financial Statements fairly present in all material
respects the results of operations, changes in shareholders' equity
and cash flows of ICNN for the respective periods or as of the
respective dates set forth therein, all in conformity with
generally accepted accounting principles consistently applied
during the periods involved, except as otherwise noted therein.
Section
2.10 Absence of
Changes; No Undisclosed Liabilities .
Except as
disclosed in any Form 10-K and Form 10-Q, ICNN has not incurred any
liability material to ICNN on a consolidated basis, except in the
ordinary course of its business, consistent with past practices;
suffered a change, or any event involving a prospective change, in
the business, assets, financial condition, or results of operations
of ICNN which has had, or is reasonably likely to have,
individually or in the aggregate, an ICNN Material Adverse Effect,
(other than as a result of changes or proposed changes in federal
or state regulations of general applicability or interpretations
thereof, changes in generally accepted accounting principles, and
changes that could, under the circumstances, reasonably have been
anticipated in light of disclosures made in
writing by ICNN
to NAPM pursuant hereto); or conducted its business and operations
other than in the ordinary course of business and consistent with
past practices. ICNN has no liability except for (a) liabilities
set forth on the face of the most recent balance sheet included in
the ICNN Financial Statements, and (b) liabilities which have
arisen after the date of such balance sheet in the ordinary course
of business (none of which results from, arises out of, relates to,
is in the nature of, or was caused by any breach of contract, tort,
infringement, or violation of law). ICNN is not aware of any basis
for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against it
giving rise to any liability which individually or in the aggregate
is reasonably likely to have a ICNN Material Adverse
Effect.
Section
2.11 Litigation .
There is no
action, suit, proceeding or investigation pending or threatened
against the Company or any subsidiary that may affect the validity
of this Agreement or the right of ICNN to enter into this Agreement
or to consummate the transactions contemplated hereby.
Section
2.12 Securities
Laws .
ICNN has
complied in all material respects with applicable federal and state
securities laws, rules and regulations, including the Sarbanes
Oxley Act of 2002, as such laws, rules and regulations apply to
ICNN and its securities; and all shares of capital stock of the
Company have been issued in accordance with applicable federal and
state securities laws, rules and regulations. There are no stop
orders in effect with respect to any of the Company’s
securities.
Section
2.13 Tax
.
ICNN has paid
all taxes due to date, if any.
Section
2.14 34 Act
Reports .
None of
ICNN’s filings with the SEC contains any untrue statement of
a material fact or omits to state a material fact necessary to make
the statements therein not misleading, in light of the
circumstances in which they were made.
Section
2.15 Survival .
Each of the
representations and warranties set forth in this Article II shall
be deemed represented and made by ICNN at the Closing as if made at
such time and shall survive the Closing for a period terminating on
the second anniversary of the date of this Agreement.
Section
2.16 Employees .
ICNN has no
employees, employee benefit plan, program or arrangement, or
employment, severance or consulting
agreements. ICNN’s current officers and directors
serve without compensation. ICNN has no bonus, pension,
profit-sharing or other plans or commitments with respect to any of
its officers, directors, agents, or any other individuals or
entities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
NAPM AND NAPM MEMBERS
Section
3.1 NAPM , represents,
warrants and agrees as follows :
Section
3.1.1 Organization .
NAPM is a
Limited Liability Company, duly organized, validly existing and in
good standing under the laws of the state of New Jersey,
USA, and has all requisite power and
authority to own its properties and assets and to conduct its
business as now conducted and is duly qualified to do business, is
in good standing in each jurisdiction wherein the nature of the
business conducted by NAPM or the ownership or leasing of its
properties makes such qualification and being in good standing
necessary, except where the failure to be so qualified and in good
standing will not have a material adverse effect on the business,
operations, properties, assets, condition or results of operation
of NAPM (a “NAPM Material Adverse
Effect”). Copies of the Operating Agreement of
NAPM with all amendments thereto to as of the date hereof, have
been furnished to ICNN, and such copies are accurate and complete
as of the date hereof. The books of NAPM are current and adequately
reflect all material actions taken by the NAPM Members.
Section
3.1.2 Authorization
and Validity of Agreements .
NAPM has
all power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The exe
