EXCHANGE AGREEMENT
Exhibit 10.1
THIS EXCHANGE AGREEMENT (the “Agreement”) is made and entered into as of February 19, 2010 (the “Effective Date”) by and between Xxxxxx Mining Inc., a Nevada corporation (the “Company”), Hair Tech International, Inc., a Georgia corporation (“Hairtech”), and Dreamcatchers International, Inc., a Georgia corporation (“Dreamcatchers”). Hairtech and Dreamcatchers are referred to as “Seller”.
SECTION 1.
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(g) Assets. Seller has good and marketable title to the Assets, free and clear of any lien, which Assets are reflected on Schedule 1.2.
(h) Employees. Seller has __________ employees with a gross monthly payroll of $________________.
(i) Intellectual Property and Tangible and Intangible Assets. Seller owns or possesses all right, title and interest (or holds valid licenses) to use, whether or not registered, all Intellectual Property and Tangible and Intangible Assets. Schedule 1.2 sets forth a complete and accurate list of all such Intellectual Property and Tangible and Intangible Assets (identifying those owned and those licensed), including all United States, state and foreign registrations or applications for registration thereof and all agreements (including, without limitation, agreements pursuant to which Seller has granted licenses to third parties to use any Intellectual Property or Intangible Asset) relating thereto. All actions reasonably necessary to maintain the registered Intellectual Property and Tangible and Intangible Assets have been taken by Seller. Seller is not required to pay any royalty, license fee or similar compensation with respect to the Assets in connection with the current or prior conduct of its business. The use by Seller of any of the Intellectual Property or Tangible and Intangible Assets does not violate the proprietary rights of any other person and no claims have been asserted by any person with respect to the use of the Assets by Seller. No person is infringing upon the Assets. Seller has taken reasonable security measures to protect the secrecy, confidentiality, and value of the Intellectual Property. Except as set forth in Schedule 3.1(i), no person, other than Seller, owns or has any proprietary, financial, or other interest, direct or indirect, in whole or in part, in the Assets. Seller is not a party to any confidentiality, secrecy, or similar agreements with third parties.
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The Seller covenants that, except as otherwise consented to in writing by the Company, from and after the date hereof until the Closing or the earlier termination of this Agreement, Seller (i) will use reasonable efforts consistent with past practice to preserve the Assets, (ii) shall not shall not enter into any contract, lease, license, obligation, indebtedness, commitment, purchase or sale relating to the Assets; and (iii) shall not enter into or assume any mortgage, pledge, conditional sale or other title retention agreement, or permit any Lien to be placed upon the Assets.
The Company covenants that it shall use its best efforts to complete a 10:1 forward split of its common stock and change its name to “Dreamcatchers International, Inc.” prior to the Closing. Upon completion of the forward split, the Common Stock to be delivered at Closing shall be adjusted proportionately.
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5.1 Conditions to the Company's Obligations. The obligations of the Company under this Agreement, (including, without limitation, the obligation to consummate and effect the exchange of shares), shall be subject to satisfaction of the following conditions, unless waived by the Company:
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(a) Seller shall have performed in all material respects all agreements, and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(b) All representations and warranties of Seller herein shall have been true and correct in all material respects when made (or will have been made true and correct by the Closing Date), shall have continued to have been true and correct in all material respects at all times subsequent thereto, and shall be true and correct in all material respects on and as of the Closing Date as though made on, as of and with reference to such Closing Date.
(c) There shall not have occurred any material adverse change with respect to the Assets or Seller.
(d) Seller shall have executed and delivered to the Company all documents necessary to transfer all Assets to the Company, as contemplated by this Agreement.
(e) Seller shall have delivered to Company an opinion, dated the Closing Date, substantially in a form reasonably satisfactory to the Company which shall include the subject matter contained in Section 3.1 (a) (b), (c) and (g).
5.2 Conditions to the Seller's Obligations. The obligations of Seller under this Agreement, (including, without limitation, the obligation to consummate and effect the exchange) shall be subject to satisfaction of the following conditions, unless waived by the Seller:
(a) The Company shall have performed in all material respects all agreements, and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder, at or prior to the Closing Date.
(b) All of the representations and warranties of the Company herein shall have been true and correct in all material respects when made, shall have continued to have been true and correct in all material respects at all times subsequent thereto, and shall be true and correct in all material respects on and as of the Closing Date as though made on, as of, and with reference to such Closing Date.
(a) A xxxx of sale transferring all Assets of Seller to the Company
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6.1 Survival of Representations and Warranties and Covenants. The representations, warranties, covenants, and obligations of the Company and Seller set forth in this Agreement and in any certificate, agreement, or instrument delivered in connection with the transactions contemplated hereby, shall survive the Closing for a period of three years.
(a) any inaccuracy or misrepresentation in or breach of any of the representations, warranties, covenants or agreements made by Seller in this Agreement or in any document, certificate or affidavit delivered by Seller pursuant to the provisions of this Agreement;
(b) any obligation, liability, debt or commitment of Seller which is not disclosed herein, whether or not paid by the Company; and
(c) any other matter related to the use or ownership of the Assets prior to the Closing (including, but not limited to, all acts, omissions and conditions existing or occurring prior to the Closing for which any of the Company Indemnitees is alleged to be liable pursuant to any successor or similar theory of liability).
(a) Notice to the indemnifying party shall be given promptly after receipt by Seller or the Company Indemnitee of actual knowledge of the commencement of any action or the assertion of any claim that will likely result in a claim by it for indemnity pursuant to this Agreement. Such notice shall set forth in reasonable detail the nature of such action or claim to the extent known, and include copies of any written correspondence or pleadings from the party asserting such claim or initiating such action. The indemnified party shall be entitled, at its own expense, to assume or participate in the defense of such action or claim. If the indemnifying party assumes the defense of such action or claim, it shall be conducted by counsel chosen by such party and approved by the party seeking indemnification, which approval shall not be unreasonably withheld.
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(b) For actions where the indemnifying party does not exercise its right to assume the defense, the party seeking indemnification shall assume and control the defense of and contest such action with counsel chosen by it and approved by the indemnifying party, which approval shall not be unreasonably withheld. The indemnifying party shall be entitled to participate in the defense of such action, the cost of such participation to be at its own expense. The indemnifying party shall pay the reasonable attorneys' fees and expenses of the party seeking indemnification to the extent that such fees and expenses relate to claims as to which indemnification is payable under Sections 6.2 or 6.3, as such expenses are incurred.
(c) Both the indemnifying party and the indemnified party shall cooperate fully with one another in connection with the defense, compromise, or settlement of any such claim or action, including, without limitation, by making available to the other all pertinent information and witnesses within its control.
(d) No indemnified party shall have the right to settle any action brought against it without the consent of the indemnifying party. The indemnifying party shall have the right to settle any action brought against an indemnified party as long as the indemnified party has been delivered a complete release as a condition of the settlement.
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7.3 Specific Performance. Each of the parties acknowledges and agrees that the other parties would be damaged irreparably if any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each party agrees that the other party shall be entitled, without the necessity of pleading or proving irreparable harm or lack of an adequate remedy at law or posting any bond or other security, to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof. Any such claim for specific performance shall be brought and determined in the appropriate federal or state court, in the State of California and in no other forum. The parties hereby irrevocably submit to the jurisdiction of any such California state court or federal court in California, in connection with such claim for a specific performance.
7.9 Governing Law. This Agreement and any dispute, disagreement, or issue of construction or interpretation arising hereunder whether relating to its execution, its validity, the obligations provided herein or performance shall be governed or interpreted according to the internal laws of the State of California without regard to choice of law considerations.
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7.10 Arbitration. Any controversy, dispute or claim arising out of or relating to this Agreement, or its interpretation, application, implementation, breach or enforcement which the parties are unable to resolve by mutual agreement, shall be settled by submission by either party of the controversy, claim or dispute to binding arbitration in Orange County, California (unless the parties agree in writing to a different location), before a single arbitrator in accordance with the rules of the American Arbitration Association then in effect. In any such arbitration proceeding the parties agree to provide all discovery deemed necessary by the arbitrator. The decision and award made by the arbitrator shall be final, binding and conclusive on all parties hereto for all purposes, and judgment may be entered thereon in any court having jurisdiction thereof.
THE COMPANY
XXXXXX MINING, INC.
By: ___________________
Name: _________________
Title: __________________
SELLER
Hair Tech International, Inc., a Georgia corporation
By: ___________________
Name: Xxxxx Xxxxx
Title: President
Dreamcatchers International, Inc., a Georgia corporation
By: ___________________
Name: Xxxxx Xxxxx
Title: President
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