EXHIBIT 10.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT (this "Agreement") is entered into
effective as of September 10, 2003, by and between Xxxxxx Technologies Corp.
(hereinafter "Xxxxxx"), a corporation registered in the State of Delaware,
United States of America, and Shareholders of Starlight E-Commerce Ltd.
(hereinafter "Starlight Shareholders"), a corporation registered in Hong Kong.
Each of Xxxxxx and Starlight Shareholders is also referred to as a "Party",
collectively the "Parties".
RECITALS
WHEREAS, Starlight Shareholders, as a group, are the beneficial owners
and hold of record one hundred percent (100%) of the shares of capital stock
of Starlight E-Commerce Ltd. (hereinafter "Starlight" and "Starlight Shares");
WHEREAS, Starlight Shareholders desire to transfer the Starlight Shares
to Xxxxxx, and Xxxxxx desires to issue one million one hundred thousand
(1,100,000) shares of capital stock of Xxxxxx to Starlight Shareholders in
exchange therefor (hereinafter the "Exchange Shares");
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1) TERMS
a) Capitalization of Xxxxxx. Immediately prior to the closing of the
exchange transaction contemplated hereby, Xxxxxx has fifteen million
(15,000,000) shares of capital stock issued and outstanding,
constituting one hundred percent (100%), of the capital stock of
Xxxxxx.
b) Consideration.
i) In exchange for the Starlight Shares, Xxxxxx agrees to issue one
million one hundred thousand (1,100,000) shares of capital stock of
Xxxxxx to Starlight Shareholders as consideration therefor.
ii) Upon consummation of the transactions contemplated hereby, Starlight
shall be a wholly-owned subsidiary of Xxxxxx.
iii) Upon consummation of the transactions contemplated hereby, Xxxxxx
shall have sixteen million one hundred thousand (16,100,000) shares
of capital stock issued and outstanding.
c) Legend. Upon issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities
Act of 1933, as amended, the Exchange Shares (and all securities
issued in exchange or substitution therefor) shall bear the following
legend or such other legend as may be appropriate with respect to the
Exchange Shares to be resold:
"THE SECURITIES EVIDENCED HEREBY WERE ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM."
d) The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall occur upon execution and delivery of
this Agreement by the Parties, together with all documents,
instruments, and agreements referred to herein by the respective
parties referred to in such documents, instruments, and agreements.
The date on which the Closing occurs shall be referred to as the
"Closing Date".
2) Deliveries at the Closing.
a) Starlight Shareholders' Obligations at Closing. At the Closing,
Starlight Shareholders will:
i) Deliver or cause to be delivered to Xxxxxx a stock certificate or
stock certificates representing and evidencing the Starlight
Shares, endorsed in blank or accompanied by duly executed
assignment documents or stock powers sufficient to transfer good
and marketable title to the Starlight Shares to Xxxxxx; and
ii) Execute and deliver this Agreement and all other documents,
instruments, and agreements referred to herein or contemplated
hereby.
b) Xxxxxx'x Obligations at Closing. At the Closing, Xxxxxx will:
i) Deliver or cause to be issued and delivered to Starlight
Shareholders stock certificates representing and evidencing
the Exchange Shares; and
ii) Execute and deliver this Agreement and all other documents,
instruments, and agreements referred to herein or contemplated
hereby.
3) REPRESENTATIONS AND WARRANTIES
a) Representations, Warranties and Covenants of Starlight Shareholders.
Starlight Shareholders hereby represent and warrant to Xxxxxx that the
statements contained in this Section 3.a are correct and complete as
of the Closing Date. Notwithstanding Xxxxxx'x due diligence
investigation of Starlight or Starlight Shareholders, Xxxxxx may rely
on the representations and warranties contained in this Section 3.a.
i) Organization of Starlight. Starlight is duly organized, validly
existing, and in good standing under the laws of the jurisdiction
of its incorporation.
ii) Authorization of Transaction. Starlight Shareholders have full
power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
iii) Validity of the Starlight Shares. Starlight Shareholders are the
beneficial owners and hold of record all of the capital stock of
Starlight free and clear of any liens, claims and other
encumbrances. Starlight Shareholders are not parties to any voting
trust, proxy, or other agreement or understanding with respect to
the voting of any capital stock of Starlight. All of the issued
and outstanding equity interests of Starlight have been duly
authorized and are validly issued, fully paid and non-assessable.
iv) Restriction on Resale. Starlight Shareholders understand that the
Exchange Shares have not been registered for sale under the
Securities Act of 1933, as amended, are being exchanged to them
pursuant to an exemption from registration under Section 4(2) of
the Securities Act.
v) Litigation, etc. There are no actions, suits, proceedings or
investigations pending or threatened against Starlight
Shareholders and Starlight, or their properties before any court
or governmental agency, which, either in any case or in the
aggregate, might result in any material adverse change in the
business, prospects, financial condition, affairs, operations or
equity ownership of Starlight or any of their properties or assets,
or in any material impairment of the right or ability of Starlight
Shareholders or Starlight to carry on their business as now
conducted or as proposed to be conducted, or in any material
liability on the part of Starlight Shareholders or Starlight, and
none which questions the validity of this Agreement, or any action
taken or to be taken in connection herewith or therewith. Neither
Starlight Shareholders nor Starlight is a party or subject to the
provisions of any court or governmental agency or instrumentality.
vi) Taxes. Starlight Shareholders and Starlight (i) have filed and
will file, in a timely and proper manner, consistent with all
applicable laws, all tax returns and tax reports required to be
filed by them through the Closing Date (the "Tax Returns") with
the appropriate governmental agencies in all jurisdictions in
which Tax Returns are required to be filed and have timely paid
or will timely pay all amounts shown thereon to be due; (ii)
have paid and shall timely pay all taxes of Starlight required to
have been paid on or before the Closing Date (iii) currently are
not the beneficiary of an extension of time within which to file
any Tax Return. All such Tax Returns were and will be correct and
complete at the time of filing. All taxes of Starlight attributable
to all taxable periods ending on or before the Closing Date, to
the extent not required to have been previously paid, have been
adequately provided for, and Starlight will not accrue a tax
liability up to and including the Closing Date.
vii) Noncontravention. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (a) violate any governing law or other restrictions
of any governmental authority to which Starlight Shareholders are
subject, or (b) conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any
person the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license,
permit, governmental approval, certificate, instrument, or other
arrangement to which Starlight Shareholders are parties or by
which they are bound or to which any of their assets or properties
is subject.
viii) Broker's Fees. Starlight Shareholders have no liability or
obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the transactions contemplated by this
Agreement for which Starlight Shareholders could become liable
or obligated.
ix) Disclosure. The representations and warranties contained in this
Section 3.a do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements and information contained in this Section
3.a not misleading.
b) Representations and Warranties of Xxxxxx. Xxxxxx hereby represents
and warrants to Starlight Shareholders that the statements contained
in this Section 3.b are correct and complete as of the Closing Date.
Moreover, notwithstanding Starlight Shareholders' due diligence
investigation of Xxxxxx, Starlight Shareholders may rely on the
representations and warranties contained in this Section 3.b.
i) Organization of Xxxxxx. Xxxxxx is duly organized, validly
existing, and in good standing under the laws of the
jurisdiction of its incorporation.
ii) Authorization of Transaction. Xxxxxx has full power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder.
iii) Capitalization of Xxxxxx. Immediately prior to the Closing Date,
Xxxxxx has fifteen million (15,000,000) shares of common stock
issued and outstanding. Xxxxxx is authorized to issue eighty
million (80,000,000) shares of common stock and twenty million
(20,000,000) shares of preferred stock. No preferred stock has
been issued and outstanding.
iv) Validity of Xxxxxx Shares. All Exchange Shares, when issued and
delivered will be duly and validly issued and will be fully paid
and nonassessable, free and clear of any liens, claims and other
encumbrances. Xxxxxx is not a party to any voting trust, proxy,
or other agreement or understanding with respect to the voting of
any capital stock of Xxxxxx. All of the issued and outstanding
equity interests of Xxxxxx have been duly authorized and are duly
and validly issued, fully paid and non-assessable.
v) Litigation, etc. There are no actions, suits, proceedings or
investigations pending or threatened against Xxxxxx or its
properties before any court or governmental agency, which, either
in any case or in the aggregate, might result in any material
adverse change in the business, prospects, financial condition,
affairs, operations or equity ownership of Xxxxxx or any of its
properties or assets, or in any material impairment of the right
or ability of Xxxxxx to carry on its business as now conducted or
as proposed to be conducted, or in any material liability on the
part of Xxxxxx, and none which questions the validity of this
Agreement, or any action taken or to be taken in connection
herewith or therewith. Xxxxxx is not a party or subject to the
provisions of any court or governmental agency or instrumentality.
vi) Taxes. Xxxxxx (i) has filed and will file, in a timely and proper
manner, consistent with all applicable laws, all tax returns and
tax reports required to be filed by them through the Closing Date
(the "Tax Returns") with the appropriate governmental agencies in
all jurisdictions in which Tax Returns are required to be filed and
has timely paid or will timely pay all amounts shown thereon to be
due; (ii) has paid and shall timely pay all taxes of Xxxxxx required
to have been paid on or before the Closing Date (iii) currently is
not the beneficiary of an extension of time within which to file any
Tax Return. All such Tax Returns were and will be correct and
complete at the time of filing. All taxes of Xxxxxx attributable
to all taxable periods ending on or before the Closing Date, to the
extent not required to have been previously paid, have been
adequately provided for, and Xxxxxx will not accrue a tax liability
up to and including the Closing Date.
vii) Noncontravention. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (a) violate any governing law or other restrictions
of any governmental authority to which Xxxxxx is subject, or any
provision of its charter or bylaws, or (b) conflict with, result
in a breach of, constitute a default under, result in the
acceleration of, create in any person the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, permit, governmental approval,
certificate, instrument, or other arrangement to which Xxxxxx is a
party or by which it is bound or to which any of its assets or
properties is subject.
viii) Broker's Fees. Xxxxxx has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect
to the transactions contemplated by this Agreement for which
Xxxxxx could become liable or obligated.
ix) Disclosure. The representations and warranties contained in this
Section 3.b do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements and information contained in this Section 3.b not
misleading.
4) MISCELLANEOUS
a) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement between the Parties and
supersedes any prior understandings, agreements, or representations
by or between the Parties, written or oral, to the extent they
related in any way to the subject matter hereof.
b) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective
successors and assigns. No Party may assign this Agreement or any of
its rights, interests, or obligations hereunder without the prior
written consent of the other; provided, however, that such consent
shall not be unreasonably withheld.
c) Counterparts. This Agreement may be executed by facsimile signature
and in one or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same
instrument.
d) Headings. The section headings contained herein are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
e) Applicable Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Delaware, the
United States of America, without giving effect to any choice or
conflict of law provision or rule (whether of the Sate of Delaware
or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
f) Amendments and Waivers. No amendments of any provision of this
Agreement shall be valid unless the same shall be in writing and
signed by the Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenants hereunder,
whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder to affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
g) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any state or
jurisdiction shall not affect the validity or enforceability of the
remaining terms and provision hereof or the validity or enforceability
of the offending term or provision in any other situation or in any
other state or jurisdiction.
h) Expenses. Each of the Parties will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
i) Construction: Official Version. The Parties have participated
jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises,
this Agreement shall be construed as if drafted jointly by the
Parties and no presumption or burden of proof shall arise favoring
or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.
j) Specific Performance. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event any
of the provisions of this Agreement are not performed in accordance
with their specific terms or otherwise are breached. Accordingly,
each of the Parties agrees that the other Party shall be entitled to
an injunction or injunctions to prevent breach of the provisions of
this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court
of the State of Delaware, in addition to any other remedy to which
they may be entitled, at law or equity.
IN WITNESS WHEREOF, the Parties have executed and delivered this
Agreement on the date first above written.
Representative of Xxxxxx Technologies Corp.
Starlight Shareholders
By: Xxxxxxx Limited (seal) By: /s/ Xxxxxx Xxx Xx Xxx
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Xxxxxxx Limited Xxxxxx Xxx Xx Xxx, Vice President
