EXHIBIT 4.2.
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 8th day of January, 2001, by and between Focus
Financial Group, Inc., a Florida corporation, (the "ISSUER") and the individuals
listed in Exhibit A attached hereto, (the "SHAREHOLDERS"), which SHAREHOLDERS
own of all the issued and outstanding shares of The Nationwide Companies, Inc. a
Florida corporation. ("Nationwide")
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, the ISSUER agrees to issue to SHAREHOLDERS, 300,000 shares of the
common stock of ISSUER, $.001 par value (the "Shares"), in exchange for 100% of
the issued and outstanding shares of Nationwide, such that Nationwide shall
become a wholly owned subsidiary of the ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDERS and Nationwide the following:
i. Organization. ISSUER is a corporation duly organized,
validly existing, and in good standing under the laws of Florida, and has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Florida. All actions
taken by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of Florida.
ii. Capital. The authorized capital stock ISSUER consists
of 10,000,000 shares of common stock, $.001 par value, of which 800,000 are
issued and outstanding. All outstanding shares are fully paid and non
assessable, free of liens, encumbrances, options, restrictions and legal or
equitable rights of others not a party to this Agreement. At closing, there will
be no outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating ISSUER to issue or to
transfer from treasury any additional shares of its capital stock. None of the
outstanding shares of ISSUER are subject to any stock restriction agreements.
All of the shareholders of ISSUER have valid title to such shares and acquired
their shares in a lawful transaction and in accordance with the laws of Florida.
iii. Financial Statements. Exhibit B to this Agreement
includes the current balance sheet of ISSUER, and the related statements of
income and retained earnings for the period then ended. The financial statements
have been prepared in accordance with generally accepted
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accounting principles consistently followed by ISSUER throughout the periods
indicated, and fairly present the financial position of ISSUER as of the date of
the balance sheet and the financial statements, and the results of its
operations for the periods indicated.
iv. Absence of Changes. Since the date of the financial
statements, there has not been any change in the financial condition or
operations of ISSUER, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability,
or obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected on the
ISSUERS' financial statement. ISSUER is not aware of any pending, threatened or
asserted claims, lawsuits or contingencies involving ISSUER or its common stock.
There is no dispute of any kind between the ISSUER and any third party, and no
such dispute will exist at the closing of this Agreement. At closing, ISSUER
will be free from any and all liabilities, liens, claims and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by Issuer and the
performance by ISSUER of its obligations hereunder will not cause, constitute,
or conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or other agreement or
instrument to which ISSUER or its shareholders are a party, or by which they may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would cause ISSUER to be liable to any
party, or (c) an event that would result in the creation or imposition or any
lien, charge or encumbrance on any asset of ISSUER or upon the securities of
ISSUER to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and
warranties made by the ISSUER, or in any certificate or memorandum furnished or
to be furnished by the ISSUER, contains or will contain any untrue statement of
a material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not currently carrying
on any business and is not a party to any contract, agreement or lease. No
person holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is
not in violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
x. Litigation. ISSUER is not (and has not been) a party to
any suit, action, arbitration, or legal, administrative, or other proceeding, or
pending governmental investigation. To the best knowledge of the ISSUER, there
is no basis for any such action or proceeding and no such action or proceeding
is threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall
conduct its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any
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liabilities, (5) acquire or dispose of any assets, enter into any contract,
guarantee obligations of any third party, or (6) enter into any other
transaction.
xii. Corporate Documents. Copies of each of the following
documents, which are true complete and correct in all material respects, will be
attached to and made a part of this Agreement:
(1) Articles of Incorporation;
(2) Bylaws;
(3) Minutes of Shareholders Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Current Balance Sheet together with other financial statements
described in Section 2(iii);
(7) Stock register and stock records of ISSUER and a current,
accurate list of ISSUER's shareholders.
xiii. Documents. All minutes, consents or other documents
pertaining to ISSUER to be delivered at closing shall be valid and in accordance
with the laws of Florida.
xiv. Title. The Shares to be issued to SHAREHOLDERS will
be, at closing, free and clear of all liens, security interests, pledges,
charges, claims, encumbrances and restrictions of any kind. None of such Shares
are or will be subject to any voting trust or agreement. No person holds or has
the right to receive any proxy or similar instrument with respect to such
shares, except as provided in this Agreement, the ISSUER is not a party to any
agreement which offers or grants to any person the right to purchase or acquire
any of the securities to be issued to SHAREHOLDERS. There is no applicable
local, state or federal law, rule, regulation, or decree which would, as a
result of the issuance of the Shares to SHAREHOLDERS, impair, restrict or delay
SHAREHOLDERS' voting rights with respect to the Shares.
3. SHAREHOLDERS and Nationwide represent and warrant to ISSUER the
following:
i. Organization Nationwide is a corporation duly organized,
validly existing, and in good standing under the laws of Florida, has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Florida. All actions
taken by the Incorporators, directors and shareholders of Nationwide have been
valid and in accordance with the laws of Florida.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto
sets forth the names and share holdings of 100% of Nationwide shareholders.
4. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agree, prior to any
Transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place no later than
February 1st, 2001.
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6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the issuance
of a certificate or certificates for 500,000 Shares, registered in the names of
the SHAREHOLDERS based upon their holdings in Focus Financial Group, Inc. as
agreed to on Exhibit A.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such
person as SHAREHOLDERS designate as a director(s) of ISSUER.
(4) The resignation of all the directors of ISSUER,
except that of SHAREHOLDER'S designee, dated subsequent to the resolution
described in 3, above.
(5) Audited financial statements of the ISSUER filed
with the SEC, which shall include a current balance sheet and statements of
operations, stockholders equity and cash flows for the twelve-month period then
ended.
(6) All of the business and corporate records of
ISSUER, including but not limited to correspondence files, bank statements,
checkbooks, savings account books, minutes of shareholder and directors
meetings, financial statements, shareholder listings, stock transfer records,
agreements and contracts.
(7) Such other minutes of ISSUER's shareholders or
directors as may reasonably be required by SHAREHOLDERS.
(8) An Opinion Letter from ISSUER's Attorney attesting
to the validity and condition of the ISSUER.
ii. By SHAREHOLDERS AND Nationwide.
(1) Delivery to the ISSUER, or to its Transfer Agent,
the certificates representing 100% of the issued and outstanding stock of
Nationwide.
(2) Consents signed by all the shareholders of
Nationwide consenting to the terms of this Agreement.
7. REMEDIES.
i. The parties agree that should Nationwide fail to fulfill
its obligations in a timely fashion hereunder, Focus Financial Group will suffer
damages which the parties agree are unascertainable at this time and therefore
the parties agree to set said damages in the liquidated amount equal to $ 25,000
as a reasonable amount thereof. The Company agrees to pay all attorney fees,
court costs, interest, and other miscellaneous costs if necessary in a
collection effort
ii. Arbitration. Any controversy or claim arising out of,
or relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Palm Beach County, Florida in
accordance with the Rules of the American Arbitration Association
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then existing, and judgment on the arbitration award may be entered in any court
having jurisdiction over the subject matter of the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph
headings throughout this Agreement are for convenience and reference only, and
shall in no way be deemed to define, limit, or add to the meaning of any
provision of this Agreement.
ii. No oral change. This Agreement and any provision
hereof, may not be waived, changed, modified, or discharged orally, but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (I) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire
Agreement and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
vii. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party to
whom notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
9. PIGGYBACK PROVISIONS. Nationwide agrees to piggyback provisions which
provide that if The Nationwide Companies, Inc proposes to register any
securities under the Securities Act of 1933 for a public offering, it will give
20 days written notice to the filing of each such registration statement to the
Focus Financial Group, Inc. Shareholders and upon the request of any
Shareholder, Nationwide shall include the shares of the Current Shareholders in
such registration;
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ISSUER: Focus Financial Group, Inc.
22154 Martella Avenue,
Boca Raton, FL 33433
NATIONWIDE: The Nationwide Companies, Inc.
4350 Oakes Road, Suite 512
Davie, Florida 33314
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 8th day of
January 2001.
FOCUS FINANCIAL GROUP, INC.
By: /s/ Shelley S. Goldstein
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Shelley S. Goldstein, Sole Officer and Director
THE NATIONWIDE COMPANIES, INC.
By: /s/ Richard L. Loehr
-----------------------------------
Richard L. Loehr, President
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