AGREEMENT TO EXCHANGE STOCK
THIS AGREEMENT is made and entered into this 28th day of June, 2000, by
and between XML - GLOBAL TECHNOLOGIES, INC., a Colorado corporation ("XML" or
the "Company"), and XXXXX XXXXXX, an individual, ("Stockholder").
WITNESSETH
WHEREAS, XML is the record and beneficial owner of 40% and Stockholder is
the record and beneficial owner of 60% of the issued and outstanding shares of
common stock of DataXchg, Inc., a Delaware corporation, ("DataXchg"); and
WHEREAS, XML and Stockholder desire to effect a transaction whereby
Stockholder exchanges all of his shares of common stock of DataXchg for shares
of XML, thus resulting in DataXchg becoming a wholly owned subsidiary of XML;
and
WHEREAS, XML and Stockholder desire to effect the foregoing transaction
in a manner to qualify as a tax free reorganization pursuant to Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinbelow set forth, and for such good and other valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, the parties agree as
follows:
SECTION 1: EXCHANGE OF SHARES
1.1 In consideration of the issuance by the Company to Stockholder of
the shares of common stock set forth below, Stockholder herewith conveys,
transfers and assigns to XML 60 shares of the $.001 par value common stock of
DataXchg (the "DataXchg Common Stock") duly endorsed in favor of the Company
or accompanied by a duly-executed Irrevocable Stock Power in such form
sufficient to transfer such shares to the Company, free and clear of any
further claim, right or entitlement to Stockholder.
1.2 Stockholder transfers the foregoing shares of DataXchg Common Stock
to the Company for himself, his successors in interest and assigns, and
herewith waives and relinquishes any further right, claim or title therein.
1.3 In consideration of the foregoing transfer, the Company herewith
delivers to Stockholder a certificate representing 1,000,000 shares of common
stock, $.0001 par value, of XML (the "XML Common Stock"), said shares being
validly issued, fully paid and nonassessable. Stockholder, for himself, his
successors in interest and assigns, herewith accepts said shares of XML Common
Stock in full consideration of the shares of DataXchg Common Stock herewith
surrendered.
1.4 With respect to accepting the XML Common Shares in exchange for the
DataXchg Common Stock, Stockholder represents and warrants as follows:
a. Stockholder fully understands and agrees that the XML Common
Stock is offered by XML at a price which was arbitrarily determined without
regard to any recognized criteria of value of the XML Common Stock.
b. Stockholder fully understands that XML has a limited net worth,
limited operating history and no history of profitability.
c. Stockholder acknowledges receipt of such information as he
deems necessary or appropriate as a prudent and knowledgeable investor in
evaluating the exchange of the shares. The Stockholder acknowledges that XML
has made available to him the opportunity to obtain additional information to
evaluate his status as a common stockholder, and the alternatives available to
him. The Stockholder acknowledges that he had an opportunity to ask questions
of XML and to the extent he availed himself of such opportunity, he received
satisfactory answers from XML, or its affiliates.
d. Stockholder understands that there exist inherent risks in
accepting the XML Common Stock in lieu of the DataXchg Common Stock, which
risks include, but are not limited to, the lack of liquidity of the XML Common
Stock, the lack of any readily ascertainable fair market value and the lack of
any public or private trading market for said XML Common Stock.
SECTION 2: REPRESENTATIONS AND WARRANTIES BY STOCKHOLDER
Stockholder represents and warrants to XML that, as of the date of this
Agreement, and as of the date of closing, the following are true and accurate
to his knowledge and belief:
2.1 Share Ownership.
---------------
Stockholder represents and warrants that he is the sole beneficial
owner of the shares of DataXchg Common Stock being exchanged for the shares of
XML Common Stock herein, and that said shares of DataXchg Common Stock have
been and are validly issued, fully paid and nonassessable shares of common
stock of DataXchg and will be transferred to the Company free of any claim,
lien, encumbrance or other claim of any other third party.
2.2 No Other Information Relied Upon.
--------------------------------
Stockholder represents, warrants and agrees that he has been
afforded the opportunity to make, and has made, all such investigation of XML
and its financial condition, business, affairs and prospects as he deems
appropriate. Stockholder acknowledges receipt of such information as he deems
necessary or appropriate as a prudent and knowledgeable investor in evaluating
the exchange of the shares. Stockholder acknowledges that XML has made
available to him the opportunity to obtain additional information to evaluate
the merits and risks of this exchange. Stockholder acknowledges that he has
had the opportunity to ask questions of XML and, to the extent he availed
himself such opportunity, he received satisfactory answers from XML, its
affiliates, associates, officers and directors.
2.3 Nature of the Risk.
------------------
Stockholder represents, warrants and agrees that he understands that
XML's business is, by its nature, speculative; that Stockholder is aware that
the financial resources of XML are extremely limited and that it is very
likely that the Company will require additional capital, and there is no
assurance that such capital will be available if necessary; that Stockholder
is familiar with the high degree of risk that is involved in the Company and
that Stockholder is financially able and willing to accept the substantial
risk involved in such investment, including the risk of loss of the entire
amount invested.
2.4 Unregistered Stock.
------------------
Stockholder represents that he understands that the XML Common Stock
has not been registered for sale under federal or state securities laws and
that said securities are being issued to Stockholder pursuant to a claimed
exemption from the registration requirements of such laws which is based upon
the fact that said securities are not being offered to the public.
Stockholder understands that in order to satisfy such requirement he must be
acquiring the stock with no view to making a public distribution of said
securities and the representations and warranties contained in this Section 2
are given with the intention that XML may rely thereon for purposes of
claiming such exemption; and that he understands that he must bear the
economic risk of his investment in the stock for a substantial period of
time, because the stock has not been registered under the federal or state
securities laws, and, subject to Section 2 hereof cannot be sold unless
subsequently registered under such laws or unless an exemption from such
registration is available.
2.5 Stock Acquired for Investment; Limitations on Dispositions.
----------------------------------------------------------
Stockholder represents that he is acquiring the XML Common Stock for
his own account and for investment and not with a view to, or for sale in
connection with, any distribution thereof in violation of the Securities Act
of 1933, as amended. Stockholder agrees that the stock will not be offered for
sale, sold or otherwise transferred for value and that no transfer thereof
will be made by the Stockholder unless (a) a registration statement with
respect thereto has become effective under the Securities Act of 1933, as
amended, or (b) there is presented to the Company an opinion of counsel for
Stockholder reasonably satisfactory to the Company that such registration is
not required, or (c) there is presented to the Company a letter from the
Securities and Exchange Commission (said Commission having been informed of
all relevant circumstances) to the effect that in the event the stock is
transferred by Stockholder without such registration the Commission or the
staff will not recommend any action. Stockholder further agrees that the
stock will not be offered for sale, sold or otherwise transferred unless, in
the opinion of legal counsel for XML, such sale or disposition does not and
will not violate any provisions of any federal or state securities law or
regulation. Stockholder consents that any transfer agent of the Company may
be instructed not to transfer any of the stock unless it receives satisfactory
evidence of compliance with the foregoing provisions and that there may be
endorsed upon any certificates (or instruments issued in substitution
therefor), the Company's regular legend regarding the sale of restricted
securities.
IN WITNESS WHEREOF, the parties have signed the Agreement the date and
year first above written.
XML - GLOBAL TECHNOLOGIES, INC.,
a Colorado corporation
Attest:
---------------------------- By:_______________________________________
Secretary Xxxxx Xxxxxxx, Chief Executive Officer
------------------------------------------
XXXXX XXXXXX
