Exhibit 10.14
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, dated as of 25th May, 2004 (this
"Agreement"), is between Secured Digital Applications, Inc., a Delaware
corporation ("SDGL"), and Xxxxxxx Soon-Xxxx Xxx (the "Shareholder").
WITNESSETH:
WHEREAS, the Shareholder owns 8,000,000 shares of common stock, $0.00001
par value per share (the "Shares"), of SDGL;
WHEREAS, the Shareholder desires to exchange the Shares for shares of
Series A Convertible Preferred Stock, $.10 par value per share, of SDGL with the
rights and preferences memorialized in the attached Certificate of Designation
("SDGL Series A");
WHEREAS, the Boards of Directors of SDGL deem it advisable and in the best
interests of SDGL to consummate the transactions contemplated by this Agreement
in order to have use of the Shares, upon the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein and in reliance upon the undertakings,
representations, warranties and indemnities contained herein, SDGL, and the
Shareholder hereby agree as follows:
ARTICLE 1
EXCHANGE OF SHARES; CLOSING
Section 1.1 Sale of Shares. Subject to the terms and conditions herein
stated, the Shareholder agree at the Closing to exchange with full title
guarantee, transfer, assign and deliver to SDGL, and SDGL agrees to acquire from
the Shareholder, the Shares, free and clear of any and all liens.
Section 1.2 Consideration. In consideration for its acquisition of the
Shares, SDGL agrees at the Closing to issue and deliver an aggregate of 100,000
shares of SDGL Series A (the "New Shares") to the Shareholder.
Section 1.3 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place simultaneously with the execution and
delivery hereof at the offices of SDGL or such other place as the parties may
agree.
Section 1.4 Deliveries at Closing. At the Closing:
(a) SDGL shall deliver to the Shareholder:
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(i) certificate, registered in the name of the Shareholder, representing
the New Shares;
(ii) resolutions of SDGL's board of directors authorizing this Agreement
and the transactions contemplated hereby;
(iii) Certificate of Designation for the Series A Convertible Preferred
Stock
(b) the Shareholder shall deliver to SDGL:
(i) the Shares with stock power, signed by the individual Shareholder,
which shall transfer to SDGL good title to the Shares free and clear of all
Liens;
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
The Shareholder represent and warrant to SDGL as of the date hereof as
follows:
Section 2.1 Ownership.
(a) The Shareholder is the sole record and beneficial owner of the Shares.
The Shareholder has good and marketable title to the Shares and the absolute
right to deliver the Shares in accordance with the terms of this Agreement, free
and clear of all Liens. The transfer of the Shares to SDGL in accordance with
the terms of this Agreement transfers good and marketable title to the Shares to
SDGL free and clear of all liens, restrictions, rights, options and claims of
every kind.
Section 2.2. Investment Representation. The Shareholder acknowledges that
the New Shares are restricted securities, that such Shareholder is acquiring the
New Shares for his own account with the present intention of holding the New
Shares for purposes of investment and not with a view to distribution within the
meaning of the Securities Act of 1933, as amended and that the New Shares will
bear a legend to such effect. The Shareholder has relied solely on his
independent investigation in making the decision to purchase the New Shares.
Section 2.3 No Other Representations or Warranties. Except as set forth
above in this Section 2, no other representations or warranties of any kind,
express or implied, are made in this Agreement by the Shareholder to SDGL.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SDGL
SDGL represents and warrants to the Shareholder as of the date hereof as
follows:
Section 3.1 Organization. SDGL is a corporation duly organized, validly
existing and in good standing under the laws of Delaware and has all requisite
corporate power and authority to own its properties and carry on its business as
now being conducted.
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Section 3.2 Capitalization. As of the date of this Agreement, the
authorized capital stock of SDGL consists of 100,000,000 shares of common stock,
$.00001 par value per share, of which 98,983,899 are issued and outstanding, and
1,000,000 shares of preferred stock of who 0 shares are outstanding.
Section 3.3 Authority; Enforceability. SDGL has the requisite corporate
power and authority to execute and deliver this Agreement and to carry out its
obligations hereunder. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of SDGL and no other
corporate proceedings on the part of SDGL are necessary to authorize this
Agreement or to consummate the transactions so contemplated. This Agreement has
been duly executed and delivered by SDGL and constitutes a valid and binding
obligation of SDGL, enforceable against SDGL in accordance with its terms,
except as (a) enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, moratorium or similar laws from time to time in
effect affecting creditors' rights generally and (b) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
Section 3.4 Third Party Consents. No consent, authorization, order or
approval of, or filing or registration with, any governmental authority or other
person is required for the execution and delivery of this Agreement or the
consummation by SDGL of any of the transactions contemplated hereby.
Section 3.5 SDGL Series A. All shares of SDGL Series A to be issued
pursuant to this Agreement will be, when issued, duly authorized, validly
issued, fully paid and non-assessable.
Section 3.6 No Other Representations or Warranties. Except as set forth
above in this Section 3, no other representations or warranties, express or
implied, are made in this Agreement by SDGL to the Shareholder.
MISCELLANEOUS
Section 4.1 Survival of Representations, Warranties and Agreements. The
representations, warranties, covenants and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Closing
and shall not be limited or affected by any investigation by or on behalf of any
party hereto.
Section 4.2. Further Assurances. Each of SDGL, and the Shareholder will use
its, his or her, as the case may be, best efforts to take all action and to do
all things necessary, proper or advisable on order to consummate and make
effective the transactions contemplated by this Agreement.
Section 4.3 Entire Agreement; No Third Party Beneficiaries. This Agreement
(including the documents, exhibits and instruments referred to herein) (a)
constitutes the entire agreement and supersedes all prior agreements, and
understandings and communications, both written and oral, among the parties with
respect to the subject matter hereof, and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
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Section 4.4 Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York without regard to any
applicable principles of conflicts of law.
Section 4.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same document.
Section 4.6 Amendment and Modification. This Agreement may not be amended
or modified except by an instrument in writing signed by each of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed themselves or by their respective duly authorized officers as of the date
first written above.
SECURED DIGITAL APPLICATIONS, iNC.
By: /s/ Xxx XxXxxxxx
Name: Xxx X. XxXxxxxx
Title: Assistant Secretary
/s/ Xxxxxxx Soon-Xxxx Xxx
Xxxxxxx Soon-Xxxx Xxx, individually
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