SHARE EXCHANGE AGREEMENT
EXHIBIT
10.1
This
Share Exchange Agreement (the “Agreement”) dated as of the 20th day of October
2008, by and among Euro Trend Inc., a Nevada corporation (the “Company”), Data
Storage Corporation, a Delaware corporation (“Data Storage”), and the
shareholders of Data Storage named on the signature page of this Agreement
(collectively, the “Shareholders” and each, individually, a
“Shareholder”).
WITNESSETH:
WHEREAS,
the Shareholders are the holders of all of the issued and outstanding capital
stock of Data Storage (the “Data Storage Shares”);
WHEREAS,
the Shareholders are acquiring a controlling interest in the
Company;
WHEREAS,
the Company is willing to issue shares of its common stock, par value $0.001 per
share (the “Common Stock”) and
preferred shares, to the Shareholders in consideration for all of the
Data Storage Shares and a payment of $635,073;
and
WHEREAS,
the Company anticipates it will effectuate a 7 for 1 reverse stock split of its
issued and outstanding Common Stock (the “Reverse Split”) post closing of the
Agreement;
NOW,
THEREFORE, for the mutual consideration set out herein, the parties agree as
follows:
1.
Exchange of Shares and
Issuance to the Shareholders.
(a) Issuance of Shares by the
Company. On and subject to the conditions set forth in this Agreement,
the Company will issue to the Shareholders, in exchange for 3,432,749 Data
Storage Shares, which represents all of the issued and outstanding capital stock
of Data Storage, an aggregate of 83,687,500 shares of Common Stock and 1,401,786
shares of Series A Preferred Stock (the “Preferred Shares”). The
Common Stock and Preferred Shares will be issued to the Shareholders in the
amounts set forth after their respective names in Schedule I to this
Agreement.
(b) Transfer of Data Storage Shares by the
Shareholders. Subject to the conditions set forth in this Agreement, the
Shareholders will transfer to the Company all of the Data Storage Shares in
exchange for shares of Common Stock and Preferred Shares. Each
Shareholder holds the number of Data Storage Shares set forth after his or her
name in Schedule
I to this Agreement.
(c) Additional
Consideration. On the Closing Date (as defined below), in
addition to the share exchange as contemplated by Sections 1(a) and (b) above,
Data Storage or its Shareholders shall pay $635,073 (the “Additional
Consideration”) to the Company. Of such amount, $50,000 has
previously been forwarded to the Law Offices of Xxxxxxx Xxxxxxx, PLLC as an
escrow deposit which is non-refundable after September 5, 2008 (the “Initial
Good Faith Deposit”). Upon execution of this Agreement, Data Storage
or the Shareholders shall pay the remainder of the Additional Consideration or
$585,073
to the Company.
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(d) Cancellation of Certain
Shares of the Company’s Common Stock. On the
Closing Date, Xxxxx X’Xxxxx, the principal shareholder and current officer and
director will cancel a total number of 3,000,000 shares of the Company’s Common
Stock.
(e)
Closing.
The issuance of the Common Stock and
Preferred Shyares to the Shareholders and the transfer of the Data
Storage Shares to the Company will take place at a closing (the “Closing”) to be
held at the office of Xxxxxx & Xxxxxx, LLP, 000 Xxxxx 0 Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxxxx 00000 as soon as possible after or contemporaneously with
the satisfaction or waiver of all of the conditions to closing set forth in
Section 6 of this Agreement (the “Closing Date”).
2.
Representations and
Warranties of the Company. The Company hereby represents, warrants,
covenants and agrees as follows:
(a)
Organization and
Authority.
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(ii)
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Complete
and correct copies of the Company’s certificate of incorporation and
by-laws are available for review on the XXXXX system maintained by the
U.S. Securities and Exchange Commission (the
“Commission”).
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(iii)
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The
Company has full power and authority to carry out the transactions
provided for in this Agreement, and this Agreement constitutes the legal,
valid and binding obligations of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency and other laws of general application affecting the enforcement
of creditor’s rights and except that any remedies in the nature of
equitable relief are in the discretion of the court. All
necessary action required to be taken by the Company for the consummation
of the transactions contemplated by this Agreement has been
taken.
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(iv)
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The
execution and performance of this Agreement will not constitute a breach
of any agreement, indenture, mortgage, license or other instrument or
document to which the Company is a party or by which its assets and
properties are bound, and will not violate any judgment, decree, order,
writ, rule, statute, or regulation applicable to the Company or its
properties. The execution and performance of this Agreement
will not violate or conflict with any provision of the certificate of
incorporation or by-laws of the
Company.
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(v)
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The
Securities, when issued pursuant to this Agreement, will be duly and
validly authorized and issued, fully paid and non-assessable. The issuance
of the Securities to Shareholders is exempt from the registration
requirements of the Securities Act of 1933, as amended (the “Securities
Act”), pursuant to an exemption provided by Section 4(2) and Rule 506
promulgated thereunder.
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(vi)
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The
authorized capital stock of the Company consists of 250,000,000 shares of
Common Stock, $0.001 par value of which 6,625,000 shares are currently
issued and outstanding and 10,000,000 shares of preferred stock, $0.001 of
which no shares are issued. Except as provided in, contemplated
by, or set forth in this Agreement or the Company SEC Documents (as
defined below), the Company has no outstanding or authorized warrants,
options, other rights to purchase or otherwise acquire capital stock or
any other securities of the Company, preemptive rights, rights of first
refusal, registration rights or related commitments of any
nature. All issued and outstanding shares were either (i)
registered under the Securities Act, or (ii) issued pursuant to valid
exemptions from registration
thereunder.
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(vii)
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No
consent, approval or agreement of any person, party, court, governmental
authority, or entity is required to be obtained by the Company in
connection with the execution and performance by the Company of this
Agreement or the execution and performance by the Company of any
agreements, instruments or other obligations entered into in connection
with this Agreement.
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(b)
SEC
Documents.
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(i)
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The
Company is registered pursuant to Section 12 of the Exchange Act and it is
current with its reporting obligations under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”). None of the Company’s
filings made pursuant to the Exchange Act (collectively, the “Company SEC
Documents”) contains any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading. The Company SEC Documents, as of
their respective dates, complied in all material respects with the
requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder, and are available on the Commission’s XXXXX
system.
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(ii)
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The
Company SEC Documents include the Company’s audited consolidated financial
statements for the fiscal years ended October 31, 2007 (the “Financial
Statements”), including, in each case, a balance sheet and the related
statements of income, stockholders’ equity and cash flows for the period
then ended, together with the related notes. The Audited
Financial Statements have been certified by Xxxxxx Xxxxxxx, CPA
(“Xxxxxxx”). The Financial Statements are in accordance with
all books, records and accounts of the Company, are true, correct and
complete and have been prepared in accordance with GAAP, consistently
applied. Xxxxxxx is independent as to the Company under the
rules of the Commission pursuant to the Securities Act and is registered
with the PCAOB. The Financial Statements present fairly the
financial position of the Company at the respective balance sheet dates,
and fairly present the results of the Company’s operations, changes in
stockholders’ equity and cash flows for the periods
covered.
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(iii)
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At
the close of business on July 31, 2008 the date of Company’s most recent
Form 10-Q filing, the Company did not have any material liabilities,
absolute or contingent, of the type required to be reflected on balance
sheets prepared in accordance with GAAP which are not fully reflected,
reserved against or disclosed on the July 31, 2008 balance
sheet. The Company has not guaranteed or assumed or incurred
any obligation with respect to any debt or obligations of any Person,
except endorsements made in the ordinary course of business in connection
with the deposit of items for collection. The Company does not
have any debts, contracts, guaranty, standby, indemnity or hold harmless
commitments, liabilities or obligations of any kind, character or
description, whether accrued, absolute, contingent or otherwise, or due or
to become due except to the extent set forth or noted in the Financial
Statements, and not heretofore paid or
discharged.
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(c)
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Absence of
Changes. Since July 31, 2008, except as set forth in the
Company SEC Documents and to the best of Company’s knowledge, there have
not been:
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(i)
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any
change in the consolidated assets, liabilities, or financial condition of
the Company, except changes in the ordinary course of business which do
not and will not have a material adverse effect on the
Company;
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(ii)
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any
damage, destruction, or loss, whether or not covered by insurance,
materially and adversely affecting the assets or financial condition of
the Company (as conducted and as proposed to be
conducted);
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(iii)
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any
change or amendment to a material contract, charter document or
arrangement not in the ordinary course of business to which the Company is
a party other than contracts which are to be terminated at or prior to the
Closing;
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(iv)
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any
loans made by the Company to any of affiliate of the Company or any of the
Company’s employees, officers, directors, shareholders or any of its
affiliates;
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(v)
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any
declaration or payment of any dividend or other distribution or any
redemption of any capital stock of the
Company;
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(vi)
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any
sale, transfer, or lease of any of the Company’s assets other than in the
ordinary course of business;
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(vii)
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any
other event or condition of any character which might have a material
adverse effect on the Company;
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(viii)
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any
satisfaction or discharge of any lien, claim or encumbrance or payment of
any obligation by Company except in the ordinary course of business and
that is not material to the assets or financial condition of the Company;
or
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(ix)
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any
agreement or commitment by the Company to do any of the things described
in this Section 2(c).
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(d) Property. Except
as set forth in the Company SEC Documents, the Company does not own any real
estate and is not a party to any lease agreement.
(e) Taxes. The
Company has filed all federal, state, county and local income, excise,
franchise, property and other tax, governmental and/or related returns, forms,
or reports, which are due or required to be filed by it prior to the date
hereof, except where the failure to do so would have no material adverse impact
on the Company, and has paid or made adequate provision in the financial
statement included in the Company SEC Documents for the payment of all taxes,
fees, or assessments which have or may become due pursuant to such returns or
pursuant to any assessments received. The Company is not delinquent
or obligated for any tax, penalty, interest, delinquency or charge.
(f) Contracts and
Commitments. Except as contemplated under this Agreement or
set forth in the Company SEC Documents, the Company is not a party to any
contract or agreement.
(g) No Adverse
Change. Since July 31, 2008, there has not been any Material
Adverse Change in the financial condition of the Company, although Shareholders
recognize that the Company has continued not to generate any revenue and has
continued to operate at a loss as a result of ongoing expenses, including
expenses relating to this Agreement and the consummation of the transactions
contemplated hereby. A Material Adverse Change shall mean a material
adverse change in the business, financial condition, operations or prospects of
a person.
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(h) No
Defaults. The Company is not in violation of its certificate
of incorporation or by-laws or any judgment, decree or order, applicable to
it.
(i) Litigation. There
are no material (i.e., claims which, if adversely determined based on the
amounts claimed, would exceed five thousand dollars ($5,000) in the aggregate)
claims, actions, suits, proceedings, inquiries, labor disputes or investigations
(whether or not purportedly on behalf of the Company) pending or, to Company’s
knowledge, threatened against the Company or any of its assets, at law or in
equity or by or before any governmental entity or in arbitration or
mediation.
(j) Compliance with
Laws. The Company, to its knowledge, is in full compliance
with all laws applicable to it (including, without limitation, with respect to
zoning, building, wages, hours, hiring, firing, promotion, equal opportunity,
pension and other benefit, immigration, nondiscrimination, warranties,
advertising or sale of products, trade regulations, anti-trust or control and
foreign exchange or, to the Company’s knowledge, environmental, health and
safety requirements).
(k) Contracts and
Commitments. The Company is not a party to any contract of
agreement other than agreements that will be terminated at or prior to the
Closing.
(l) Intellectual
Property. The Company has no intellectual property
rights.
(m) No
Broker. Except for Xxxxx Xxxxxxxx, neither the Company nor any
of its agents or employees has employed or engaged any broker or finder or
incurred any liability for any brokerage fees, commissions or finders’ fees in
connection with the transactions contemplated by this Agreement. The
Company shall indemnify and hold the Shareholders harmless against any loss,
damage, liability or expense, including reasonable fees and expenses of counsel,
as a result of any brokerage fees, commissions or finders’ fees which are due as
a result of the consummation of the transaction contemplated by this
Agreement.
(n) Reliance by
Shareholders. The representations and warranties set forth in
this Section 2 taken together, do not contain any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained herein and therein, when taken together, not misleading, and there is
no fact which materially and adversely affects the business, operations or
financial condition of the Company. Shareholders may rely on the
representations set forth in this Section 2 notwithstanding any investigation it
may have made.
3. Closing
Deliveries.
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(a) On
the Closing Date, the Company shall deliver or cause to be delivered toeach
Shareholder:
(i) a
certificate registered in the name of each Shareholder representing the number
of shares of Common Stock and
Preferred Shares set forth on Schedule I;
(ii) a
legal opinion of counsel to the Company acceptable to the Shareholders;
and
(iii)
letters of resignation from each of the directors and officers of the
Company.
(b) On
the Closing Date, each Shareholder shall deliver or cause to be deliveredto the
Company:
(i) the
certificate representing such Shareholder’s shares of Data Storage Shares, or if
the shares were issued in uncertificated form, a written representation executed
by an officer of Data Storage that such Shareholder was issued the number of
shares set forth next to its name on Schedule I.
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Conditions to the Obligation of the
Shareholders to Close. The obligations ofShareholders
under this Agreement are subject to the satisfaction of the
followingconditions unless waived by
Shareholders:
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Representations and
Warranties. On the Closing Date, the representations and
warranties of the Company shall be true and correct in all material respects on
and as of the Closing Date with the same force and effect as if made on such
date, and the Company shall have performed all of their respective obligations
required to be performed by them pursuant to this Agreement at or prior to the
Closing Date, and Shareholders shall have received a certificate of the Company
to such effect and as to any other matters set forth in this
Agreement.
No Material Adverse
Change. No Material Adverse Change in the business or
financial condition of the Company shall have occurred or be threatened since
the date of this Agreement, and no action, suit or proceedings shall be
threatened or pending before any court of governmental agency or authority or
regulatory body seeking to restraint, prohibition or the obtain damages or other
relief in connection with this Agreement or the consummation of the transactions
contemplated by this Agreement or that, if adversely decided, has or may have a
Material Adverse Effect.
Liabilities. On the
Closing Date, the Company’s total liabilities shall not exceed
$2,000.
Legal
Opinion. The Shareholders shall have received a legal opinion
from the Company’s legal counsel, acceptable to the Shareholders
Resignations. All
officers and directors of the Company shall have tendered a letter of
resignation.
Elections
and Appointments. The following individuals shall have been elected
as directors of the Company effective as of the Closing Date:
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XXXXXXX
X. XXXXXX
XXXXXXXX
X. XXXXXXXX
XXXXXXX
X. XXXXXXX, XX.
XXXX
XXXXX
XXXXXX X.
XXXXXXX
XXX
XXXXXX
XXXXXX
XXXXXX
The
following individuals shall have been appointed to the following
offices:
XXXXXXX X. XXXXXX, President,
Chief Executive Officer, Chief Financial Officer, Principal Accounting Officer
and Treasurer
XXXXX XXXXX, Secretary
(g) Shares
Outstanding. The Company shall have 6,625,000 shares of
Common
Stock outstanding without giving effect to the issuances contemplated under this
Agreement.
5. Indemnification
Xxxxx X’Xxxxx, the principal
stockholder of the Company (the “Indemnitor”), hereby acknowledges that he will
gain significant benefits from the transactions contemplated
hereunder. In consideration for the consummation of the transactions
contemplated by this Agreement, the Indemnitor hereby agrees to
indemnify and hold harmless the Company and the Shareholders, from and against
any and all liabilities, losses, damages, judgments, costs and charges,
including reasonable attorney fees and expenses, as a result of (i) any
liabilities of the Company that were incurred by the Company or arose from its
actions or omissions prior to the Closing Date and (ii) the Company’s breach of
any representations and warranties contained herein. The provisions
of this Section 5 shall survive the consummation of the transactions
contemplated hereunder, and is intended to benefit the Company and the
Shareholders and their respective heirs, personal representatives, successors
and assigns.
6. Accredited Investor
Status.
By countersigning this Agreement, each
of the Shareholders, severally and not jointly, represents that such Shareholder
is an accredited investor as such is defined in Regulation D promulgated under
the Securities Act of 1933 as amended, because such Shareholder fits one of the
definitions set forth in Exhibit A attached
hereto.
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7. Notices.
Any
notice, demand, request, waiver or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery by telecopy, e-mail or facsimile at the address or number designated
below (if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours where such
notice is to be received) or (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first
occur. The addresses for such communications shall be:
if to Data
Storage:
Data
Storage Corporation
000
Xxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
with a copy
to:
Xxxxxx
& Jaclin, LLP
Attn:
Xxxxxxx X Xxxxxx, Esq.
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
if to the
Company:
Euro
Trend Inc.
Attn:
Xxxxx Xxxxxxxx
00 Xxxxxx
Xxxxxx
Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Tel:
(000) 000-0000
Fax:
-9-
with a copy
to:
Law
Offices of Xxxxxxx Xxxxxxx, PLLC
Attn:
Xxxxxxx Xxxxxxx
000
Xxxxxxx Xxx, 0xx Xx
Xxxx
Xxxxxx, XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
8.
Miscellaneous.
(a)
This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof, superseding any and all prior or
contemporaneous oral and prior written agreements, understandings and letters of
intent. This Agreement may not be modified or amended nor may any right be
waived except by a writing which expressly refers to this Agreement, states that
it is a modification, amendment or waiver and is signed by all parties with
respect to a modification or amendment or the party granting the waiver with
respect to a waiver. No course of conduct or dealing and no trade custom or
usage shall modify any provisions of this Agreement.
(b)
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to any principles of
conflicts of law applicable to contracts made and to be performed entirely
within such State. Each of the parties hereby irrevocably
consents and agrees that any legal or equitable action or proceeding arising
under or in connection with this Agreement shall be brought in the federal or
state courts located in the County of New York in the State of New York, by
execution and delivery of this Agreement, irrevocably submits to and accepts the
jurisdiction of said courts, (iii) waives any defense that such court is not a
convenient forum, and (iv) consent to any service of process method permitted by
law.
(c)
This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and permitted
assigns.
(d)
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same document. Fax or PDF copies of signatures shall be
treated as originals for all purposes.
(e) The
various representations, warranties, and covenants set forth in this Agreement
or in any other writing delivered in connection therewith shall survive the
issuance of the Shares.
(f) This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Fax or PDF copies of signatures shall be treated as
originals for all purposes.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties have executed this Securities Exchange Agreement
the day and year first above written.
EURO TREND
INC.
By: /s/
Xxxxx X'Xxxxx
Xxxxx
X'Xxxxx
DATA
STORAGE CORPORATION
By: /s/
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
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SHAREHOLDER
SIGNATURE PAGE TO
DATA
STORAGE CORPORATION/EURO TREND INC SHARE EXCHANGE AGREEMENT
By: /S/
XXXXXXX X.
XXXXXX
XXXXXXX
X. XXXXXX
By: /S/
XXXXXXXX X. XXXXXXXX,
XX.
XXXXXXXX
X. XXXXXXXX, XX.
By: /S/
XXXXXXX X. XXXXXXX,
XX.
XXXXXXX
X. XXXXXXX, XX.
By: /S/
XXX
XXXXXX
XXX
XXXXXX
By: /S/
XXXXX
XXXXXX
XXXXX
XXXXXX
By: /S/
XXXXX
XXXXXX
XXXXX
XXXXXX
By: /S/
XXXXX
XXXXXXX
XXXXX
XXXXXXX
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NAME
OF HOLDER
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DATA
STORAGE
SHARES
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EURO
TREND INC SHARES
ISSUED
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Xxxxxxx
X. Xxxxxx
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2,418,146
(1)
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65,864,600
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Xxxxxxxx
X. Xxxxxxxx, Xx.
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2.100
(1)
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57,199
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Xxxxxxx
X. Xxxxxxx, Xx.
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2,100
(1)
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57,199
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Xxx
Xxxxxx
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406,245
(1)
360,255
(2)
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11,065,159
1,401,786
Series A Preferred Shares
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Xxxxx
Xxxxxx
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81,301
(1)
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2,214,448
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Xxxxx
Xxxxxx
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81,301
(1)
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2,214,448
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Xxxxx
Xxxxxxx
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81,301
(1)
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2,214,448
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TOTAL
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3,432,749
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83,687,500
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(1)
Shares of Data Storage Corporation Class B common stock
(2)
Share of Data Storage Corporation Series A preferred stock
Exhibit
A
Accredited
investors
A Person
who meets any one of the following tests is an accredited investor:
(a)
The Person is an individual who has a net worth, or joint net worth with
the Person’s spouse, of at least $1,000,000.
(b)
The Person is an individual who had individual income of more than
$200,000 (or $300,000 jointly with the Person’s spouse) for the past two years,
and the Person has a reasonable expectation of having income of at least
$200,000 (or $300,000 jointly with the Person’s spouse) for the current
year.
(c)
The Person is an officer or director of the Company.
(d)
The Person is a bank as defined in section 3(a)(2) of the Securities Act
or any savings and loan association or other institution as defined in section
3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity.
(e)
The Person is a broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934.
(f)
The Person is an insurance company as defined in section 2(13) of the
Securities
Act.
(g)
The Person is an investment company registered under the Investment
Company Act of 1940 or a business development company as defined in section
2(a)(48) of that Act.
(h)
The Person is a small Business Investment Company licensed by the U.S.
Small Business Administration under section 301(c) or (d) of the Small Business
Investment Act of 1958.
(i)
The Person is an employee benefit plan within the meaning of Title I of
the Employee Retirement Income Security Act of 1974, if the investment decision
is made by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors.
(j)
The Person is a private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940.
(k)
The Person is an organization described in Section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000.
(l)
The Person is a trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Rule
506(b)(2)(ii) of the Commission under the Securities Act.
(m)
The Person is an entity in which all of the equity owners are accredited
investors (i.e., all of the equity owners meet one of the tests for an
accredited investor).
If
an individual Person qualifies as an accredited investor, such individual may
purchase the Shares in the name of his or her individual retirement account
(“XXX”).
