EXHIBIT 10.2
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 5th day of November, 2004, by and between Homeskills,
Inc., a Colorado corporation, (the "ISSUER") and the individuals listed in
Exhibit A attached hereto, (the "SHAREHOLDERS"), which SHAREHOLDERS own all of
the issued and outstanding shares of OTC Wireless, Inc. a California
corporation. ("OTC")
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, one (1) share of the
common stock of ISSUER, $0.0001 par value (the "Shares"), in exchange for
each issued and outstanding share of OTC owned by SHAREHOLDERS. This
Agreement is adopted by the parties as a plan of reorganization within the
meaning of Internal Revenue Code Section 368.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents, warrants and
covenants to and with SHAREHOLDERS and OTC as follows:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, 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
Colorado. All actions taken by the Incorporators, directors and
shareholders of ISSUER have been valid and in accordance with the laws
of the State of Colorado. This Agreement has been approved by all
necessary corporate action by ISSUER.
ii. Capital.The authorized capital stock ISSUER consists of
100,000,000 shares of common stock, $0.0001 par value, of which
37,569,449 shares are issued and outstanding. After closing total
issued and outstanding will be 30,409,992, including employee stock
option grants and excluding 200,000 warrants. All outstanding shares
are duly issued, fully paid and non assessable, free of liens,
encumbrances, options, restrictions and legal or equitable rights of
others. Presently there are, and (except as otherwise provided in this
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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 Colorado. ISSUER is in the process of conducting a private
placement of up to 3,000,000 shares of ISSUER's common stock at $0.65
per share.
iii. Financial Statements. Exhibit B to this Agreement includes
the income statement and balance sheet of ISSUER as and for the
periods ending June 30, 2004 and September 30, 2004. The financial
statements have been prepared in accordance with generally accepted
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.
iv. Absence of Changes. Since the date of the most recent
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. There have been no declarations or payments of
dividends and no stock redemptions.
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. There are no 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.
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viii. Contract and Leases. ISSUER is not currently carrying on
any business and is not a party to any benefit or retirement plan or
contract, agreement or lease. No person holds a power of attorney from
ISSUER.
ix. Compliance with Laws. ISSUER has complied withall applicable
laws and is not in violation of any federal, state, or local statute,
law, and/or regulation pertaining to ISSUER. ISSUER and its
underwriters, if any, have 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 and affairs, if any, 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 other than the existing private
placement of up to 3,000,000 shares previously referenced, (4) incur
any 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. ISSUER will not enter into an agreement to take
any of such prohibited actions.
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 (Exhibit D)
(2) Bylaws (Exhibit E)
(3) Minutes of Shareholders Meetings (Exhibit F)
(4) Minutes of Directors Meetings (Exhibit G)
(5) List of Officers and Directors (Exhibit H)
(6) Current Balance Sheet described in Section 2(iii)
(Exhibit B)
(7) Stock register and stock records of ISSUER and a
current, accurate list of ISSUER's shareholders
(Exhibit I)
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 Colorado. ISSUER will provide OTC with all
information and documents reasonably requested by OTC in connection
with OTC's investigation of ISSUER prior to closing. ISSUER will
cooperate with OTC in obtaining any necessary consents. ISSUER will
maintain in confidence and refrain from using, except for the purposes
contemplated in the Agreement, all confidential information provided
to ISSUER by OTC.
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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. Such
shares will be issued pursuant to applicable exemption(s) under
federal and state securities laws. 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.
xv. Fees. Neither ISSUER nor OTC are or will be obligated to pay
brokers or finders fees as the result, in whole or part, of actions
taken or statements made by or on behalf of ISSUER.
xvi. Taxes. ISSUER has timely filed all federal, state and local
tax returns, including, for example, income tax, corporate tax,
franchise tax, sales tax and property tax returns and reports, that it
has been required to file by law, regulation or rule and has paid all
related taxes. All such tax returns are complete and accurate in all
material respects.
3. OTC represents and warrants to ISSUER the following:
i. Organization OTC is a corporation duly organized, validly
existing, and in good standing under the laws of California, 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
California. All actions taken by the Incorporators, directors and
shareholders of OTC have been valid and in accordance with the laws of
California.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets
forth the names and share holdings of 100% of OTC 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 at the
corporate headquarters of OTC.
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 22,409,992 Shares,
registered in the names of the SHAREHOLDERS based upon their
holdings in OTC as agreed to on Exhibit A.
(2) The resignation of all officers of ISSUER.
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(3) A Board of Directors resolution appointing such person as
SHAREHOLDERS designate as a director(s) of ISSUER, on
Exhibit "C".
(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 OTC
(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding
stock of OTC.
(2) Consents signed by all the shareholders of OTC consenting to
the terms of this Agreement.
7. REMEDIES.
i. 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 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.
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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:
ISSUER: Homeskills, Inc.
000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
SHAREHOLDERS: OTC Wireless, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 5th
day of November, 2004.
Homeskills, Inc. OTC Wireless, Inc.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxx
---------------------------------- ----------------------------
Xxxxxxx Xxxxx, President Xxxx Xxxx, President
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EXHIBIT "A"
Name No. of Shares
---- -------------
X. X. Xxxx 3,552,258.00
---------- ------------
X. X. Xxxx and Hsiao-Xxx Xxxx 200,000.00
----------------------------- ----------
Weiming Ou 500,000.00
---------- ----------
Weiming Ou and Xxxxx Xxxxx Ou 200,000.00
----------------------------- ----------
Xxxx Xxxx Day and Xxxx-Xxxx Day 200,000.00
------------------------------- ----------
York Sung 26,250.00
--------- ---------
Mao Xxx Xxxx 400,000.00
------------ ----------
Xxxx Xxxx 9,874.00
--------- --------
Xxxxx Xxxxxx 30,000.00
------------ ---------
Xxx Xxxxxx 1,980.00
---------- --------
Xxxx Xxxxxxx 25,000.00
------------ ---------
Xxx Xxxxx Xxxx 31,680.00
-------------- ---------
Magic International 1,005,405.00
-------------------- ------------
Xxx Xxxxxxx 12,811.00
----------- ---------
Xxxxx Xxx 307,692.00
--------- ----------
Xxx Xxxxx 200,000.00
--------- ----------
Xxxx X. Xxxxxx 800,000.00
-------------- ----------
Perng-Fei Gou and Xxxxxx X. Xxx, co-trustees
of The Gou Living Trust u/t/a dtd. 12/9/88 800,000.00
------------------------------------------ ----------
Xxxxxx Xxxx and Xxxxxxx Xxxx 800,000.00
---------------------------- ----------
Chi-Lei Ni and Yuh Ni 200,000.00
--------------------- ----------
Jei-Hsie Nie 1,622,528.00
------------ ------------
Xxxxx Xxxx and Xxxx Xxxx 680,000.00
------------------------ ----------
Xxxx Xxxx 216,000.00
--------- ----------
Vision 2000 Venture Ltd. 4,536,458.00
------------------------ ------------
Daitung Development & Investment Corp. 300,000.00
-------------------------------------- ----------
Futung Venture Capital Ltd. 300,000.00
--------------------------- ----------
Huitung Investments(BVI) Ltd. 1,100,000.00
----------------------------- ------------
Litung Venture Capital Ltd. 160,000.00
--------------------------- ----------
New Asian Venture Ltd. 930,232.00
---------------------- ----------
Xxxxxx Xxxxx 80,000.00
------------ ---------
Sun-Xxxx Xxxx 80,000.00
------------- ---------
Trasia International Limited 80,000.00
---------------------------- ---------
Xxxx Xxxx Xx 80,000.00
------------ ---------
Chou Mou, Lih-Er 80,000.00
---------------- ---------
Chao-Xxxx Xxxx 568,000.00
-------------- ----------
Channel Heart Limited 80,000.00
--------------------- ---------
High Court Securities Limited 80,000.00
----------------------------- ---------
Ren-Xxxx Xxxx 80,000.00
------------- ---------
Xxxx Xxxx 240,000.00
--------- ----------
Xxxxx Xxxx 80,000.00
---------- ---------
Xxxx Xxxxx Chiang 640,000.00
----------------- ----------
Yen-Xxxx Xxxx 20,000.00
------------- ---------
Yi-Xxxxxx Xxxx 40,000.00
-------------- ---------
Xxxx Xxxxxxxxx 270,270.00
-------------- ----------
R. Xxxxx Xxxxxxxxx 54,054.00
------------------ ---------
21,700,492.00
Employee stock option granted 709,500
------------------------------ -------
