Exhibit 10.2
AGREEMENT
Second
Stock Exchange Agreement (the “Agreement”) dated as of
January 18, 2004 by and among Wako Logistics Group Inc., a Delaware corporation with an
address at 000 Xxxx 00xx Xxxxxx (Xxxxx 0X), Xxx Xxxx, Xxx Xxxx 00000
(“Holdings”) and T&T (Nominees) Company Limited, with a
business address at Rooms 2408-10 Xxx Xxxx Tower, 173 Des Voeux Road C., Hong Kong
(the “Stockholder”).
WHEREAS,
Holdings is a Delaware corporation incorporated in December 2003;
WHEREAS, the
Stockholder owns 1 share (the “Express Share”) of common
stock of Wako Express (HK) Co. Ltd., a Hong Kong company in the business of international
Freight Forwarding and Logistics with an address at 3606, 36/F Citibank Tower, Xxxxxxxx
Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (“Express”), which
1 Express Share constitutes all of the issued and outstanding shares of common stock of
Express not owned by Holdings;
WHEREAS,
the Stockholder owns 1 share (the “Air Share”) of common
stock of Wako Air Express (HK) Co. Ltd., a Hong Kong company in the business of Freight
Forwarding and Logistics with an address at 3606, 36/F Citibank Tower, Xxxxxxxx Xxxxx, 0
Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (“Air”), which 1 Air Share
constitutes all of the issued and outstanding shares of common stock of Air not owned by
Holdings;
WHEREAS,
pursuant to a Stock Exchange Agreement (the “First
Agreement”), dated as of January 18, 2004, by and between Holdings and
Xxxxxxxxxxx Xxxx, Holdings acquired from Xx. Xxxx (i) 9,999 shares of common stock of
Express (HK), and (ii) 999,999 shares of common stock of Air in exchange for 19,999,900
shares of common stock, par value $.001 per share (the “Holdings Common
Stock”);
WHEREAS,
Holdings desires to acquire from the Stockholder the (i) 1 Express Share, and (ii) 1
Air Share owned by the Stockholder, resulting, after such acquisition, in each of Express
and Air becoming 100% owned subsidiaries of Holdings, in exchange (the
“Exchange”), solely for the issuance to the Stockholder of
1,000 shares of Holdings Common Stock (the “1,000 Holdings
Shares”), pursuant to and on the terms and conditions provided in this
Agreement.
NOW,
THEREFORE, for the mutual consideration set out herein, the parties agree as follows:
1.
The Exchange. At the closing of the Exchange (the
“Closing”), the Stockholder shall exchange its
(i) 1 Express Share, and (ii) 1 Air Share for the 1,000 Holdings Shares to
be issued simultaneously by Holdings to the Stockholder. The Stockholder
represents that it is acquiring such 1,000 Holdings Shares for investment
purposes only and agrees that the 1,000 Holdings Shares shall bear an
appropriate transfer restrictive legend as required pursuant to the Securities
Act of 1933, as amended (the “Securities Act”).
2.
Delivery of Securities. At Closing (i) the Stockholder will deliver
stock certificates representing the (a) 1 Express Share, and (b) 1 Air
Share duly endorsed for transfer (or with appropriate stock powers) so as to
make Holdings the sole owner of such 1 Express Share and 1 Air Share free and
clear of all claims and encumbrances, and (ii) Holdings will deliver to the
Stockholder a stock certificate for the 1,000 Holdings Shares, which shall bear
appropriate transfer restrictive legends under the Securities Act.
3.
Representations of the Stockholder. The Stockholder represents and
warrants to Holdings as follows:
| (a) |
The
Stockholder owns the (i) 1 Express Share, and (ii) 1 Air Share free
from any and all claims, liens, or other encumbrances and the Stockholder has
good title and the unqualified right to transfer and dispose of the (i) 1
Express Share, and (ii) 1 Air Share in accordance with the terms of this
Agreement, and such transfer will not violate any laws, rules and/or
regulations. |
| (b) |
The
Stockholder owns the (i) 1 Express Share, and (ii) 1 Air Share which
represents the sole remaining issued and outstanding shares of Express and Air,
respectively, and the (i) 1 Express Share, and (ii) 1 Air Share are
being delivered to Holdings pursuant to this Agreement. |
| (c) |
The
Stockholder is an “accredited” investor as such terms is defined in
the Securities Act and is acquiring the 1,000 Holdings Shares for investment
purposes only and not with a view for resale and/or distribution. |
| (d) |
The
Stockholder understands and agrees that 1,000 Holdings Shares have not been
registered under the Securities Act, were issued in reliance upon an exemption
from the registration requirements of the Securities Act and may not be
transferred, sold, offered for sale, pledged or hypothecated unless a
registration statement under the Securities Act is in effect with respect to
the 1,000 Holdings Shares or such 1,000 Holdings Shares are exempt from such
registration requirements. |
4.
Representations of Holdings. Holdings hereby represents and warrants to
the Stockholder, as follows:
| (a) |
The
1,000 Holdings Shares being issued to the Stockholder pursuant to this
Agreement are duly authorized and constitute valid and legally issued shares of
Holdings Common Stock fully paid and non-assessable and not subject to any
liens and/or other encumbrances on title. |
| (b) |
The
appropriate officers of Holdings are duly authorized to negotiate, execute,
deliver and enter into this Agreement and take all of the actions contemplated
hereby, and Holdings has taken all action required by law, applicable
agreements, and governing corporate instrument to properly and legally execute
this Agreement. |
5. Closing.
The closing of the Exchange will deem to have occurred immediately following
the occurrence of all of the actions set forth below occurring, all such
actions being deemed to occur simultaneously:
| (a) |
The
Stockholder delivers, or causes to be delivered to Holdings, the following: |
| (i) |
Stock
certificate(s) representing the 1 Express Share, duly endorsed in blank (or
with appropriate stock transfer powers). |
| (ii) |
Stock
certificate(s) representing the 1 Air Share |
| (iii) |
The
Articles of Incorporation, By-Laws, Board of Director and shareholder Minutes
and Resolutions and such other documents reasonably required by Holder. |
| (iv) |
Such
other instruments, documents, and certificates, if any, as are reasonably
required to be delivered to effectuate the provisions of this Agreement. |
| (b) |
Holdings
delivers, or cause to be delivered to the Stockholders the following: |
| (i) |
A
stock certificate to the Stockholder representing the 1,000 Holdings Shares
with appropriate restrictive legends. |
| (ii) |
Resolutions
by the Board of Directors of Holdings authorizing this Agreement and the
Exchange. |
| (iii) |
Such
other instruments and documents as are required to be delivered to effectuate
this Agreement. |
6.
Miscellaneous.
| (a) |
Waiver.
Any failure on the part of any party hereto to comply with any of its
obligations, agreements, or conditions hereunder may be waived in writing by
the party to whom such compliance is owed. |
| (b) |
Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been given if delivered in person or sent by prepaid first
class, registered, or certified mail, return receipt requested. |
| (c) |
Headings.
The section and subsection headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement. |
| (d) |
Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. |
| (e) |
Binding
Effect. This Agreement shall be binding upon the parties hereto and inure
to the benefit of the parties, their respective heirs, administrators,
executors, successors, and assigns. |
| (f) |
Entire
Agreement. This Agreement constitutes the entire agreement of the parties
covering everything agreed upon or understood in the transaction. There are no
oral promises, conditions, representations, understandings, interpretations or
terms of any kind as conditions or inducements to the execution hereof. |
| (g) |
Severability.
If any part of this Agreement is deemed to be unenforceable, the balance of
this Agreement shall remain in full force and effect. |
| (h) |
Governing
Law. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York without regard to the conflicts of
laws principles thereof. The parties hereto hereby irrevocably agree that any
suit or proceeding arising directly and/or indirectly pursuant to or under this
Agreement, shall be brought solely in a federal or state court located in the
City, County and State of New York. By its execution hereof, the parties hereby
covenant and irrevocably submit to the in personam jurisdiction of
the federal and state courts located in the City, County and State of New York
and agree that any process in any such action may be served upon any of them
personally, or by certified mail or registered mail upon them or their agent,
return receipt requested, with the same full force and effect as if personally
served upon them in New York City. The parties hereto waive any claim that any
such jurisdiction is not a convenient forum for any such suit or proceeding and
any defense or lack of in personam jurisdiction with respect thereto. |
[Remainder of page
intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Agreement the day and year first above
written.
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WAKO LOGISTICS GROUP INC.
By: /s/ Xxxxxxxxxx Xxxx
Name: Xxxxxxxxxxx Xxxx
Title: President
T&T (NOMINEES) COMPANY LIMITED
(as the owner and transferor of the 1 Express Share
and the 1 Air Share)
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