EXHIBIT 10.1
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "REGISTERED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED
TO THE SATISFACTION OF THE COMPANY.
AGREEMENT FOR THE EXCHANGE OF STOCK
AGREEMENT made this 15th day of July, 1997, by and between X X GLOBAL
(U.S.A.), INC., a Delaware corporation, (hereinafter referred to as the
"ISSUER") and Flex Marketing, Inc., an Ohio corporation ("FLEX"), and the
individuals listed in Exhibit A attached hereto, (the "SHAREHOLDERS"), which
SHAREHOLDERS own all of the issued and outstanding shares of Micor Technologies,
Inc., an Arizona corporation. ("MTI")
In consideration of the mutual promises, covenants, and
representations contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of
this Agreement, the ISSUER agrees to issued to SHAREHOLDERS, 8,500,000 shares of
the common stock of ISSUER, $0.001 par value (the "Shares"), in exchange for
100% of the issued and outstanding shares of MTI, such that MTI shall become a
wholly owned subsidiary of the ISSUER. The shares to be issued to FLEX will not
be Registered, but will be issued pursuant to an exemption from Registration.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDERS and MTI the following:
i. Organization. ISSUER is a corporation duly organized,
validly existing, and in good standing under the laws of Dealware, and has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Nevada. All actions
taken by the ISSUER have been valid and in accordance with the laws of the State
of Delaware.
ii. Capital The authorized capital stock of ISSUER consists
of 20,000,000 shares of common stock, $0.001 par value, of which 10,000,000 are
issued and outstanding, and shares are fully paid and non assessable, free of
liens, encumbrances, options, restrictions and legal or equitable rights of
others not a party to this Agreement. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating ISSUER to issue or transfer from treasury
any additional shares of its capital stock. None of the outstanding shares of
ISSUER are subject to any stock restriction agreements. All of the shareholders
1
of ISSUER have valid title to such shares and acquired their shares in a lawful
transaction and in accordance with the laws of Delaware.
iii. Financial Statements. Exhibit B to this Agreement
includes the balance sheet of ISSUER as of June 30, 1997, and the related
statements of income and retained earnings for the period then ended. The
financial statements have been prepared in accordance with generally accepted
accounting principles consistently followed by ISSUER throughout the periods
indicated, and fairly present the financial position of ISSUER as of the date of
the balance sheet in the financial statements, and the results of its operations
for the periods indicated.
iv. Absence of Changes. Since the date of the financial
statements, there has not been any change in the financial condition or
operations of ISSUER, except changes in the ordinary course of business, which
changes have not in the aggregate been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability,
or obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or become due, that is not reflected on the ISSUER'S
financial statement. ISSUER is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock. There is
no dispute of any kind between ISSUER and any third party, and no such dispute
will exist at the closing of this Agreement. At closing, ISSUER will be free
from any and all liabilities, liens, claims, and/or commitments.
vi. Ability to Carry Out Obligations. ISSUER has the right,
power, and authority to enter into and perform its obligations under this
Agreement. The execution and delivery of this Agreement by ISSUER and the
performance by ISSUER of its obligations hereunder will not cause, constitute,
or conflict with or result in (a) any breach or violation or any of the
provisions of or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or other agreement or
instrument to which ISSUER or its shareholders are a party, or by which they may
be bound, nor will any consents or authorizations of any party other than those
hereto be required, (b) an event that would cause ISSUER to be liable to any
party, or (c) an event that would result in the creation or imposition or any
lien, charge or encumbrance on any asset of ISSUER or upon the securities of
ISSUER to be acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and
warranties made by the ISSUER, or in any certificate or memorandum furnished or
to be furnished by the ISSUER, contains or will contain any untrue statement of
a material fact, or omit any material fact the omission of which would be
misleading.
viii. Contract and Leases. ISSUER is not currently carrying
on any business and is not a party to any contract, agreement or lease. No
person holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is
not in violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its securities.
x. Litigation. ISSUER is not (and has not been) a party
to any suit, action, arbitration, or legal, administrative, or other proceeding,
or pending governmental investigation. To the best knowledge of the ISSUER,
there is no basis for any such action or proceeding and no such action or
2
proceeding is threatened against ISSUER and ISSUER is not subject to or in
default with respect to any order, writ, injunction, or decree of any federal,
state, local, or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall
conduct its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3) declare
dividends, redeem or sell stock or other securities, (4) incur any liabilities,
(5) acquire or dispose of any assets, enter into any contract, guarantee
obligations of any third party, or (6) enter into any other transaction.
xii. Corporate Documents. Copies of each of the following
documents, which are true, complete and correct in all material respects, will
be attached to and made a part of this Agreement:
1. Articles of Incorporation;
2. Bylaws;
3. Minutes of Shareholders Meetings;
4. Minutes of Directors Meetings;
5. List of Officers and Directors;
6. Balance Sheet as of June 30, 1997 together with other
financial statements described in Section 2 (iii);
7. Stock register and stock records of ISSUER and a
current, accurate list of ISSUER's shareholders.
xiii. Documents. All minutes, consents or other documents
pertaining to ISSUER to be delivered at closing shall be valid and in accordance
with the laws of Delaware.
xiv. Title. The Shares to be issued to SHAREHOLDERS will
be, at closing, free and clear of all liens, security interests, pledges,
charges, claims and encumbrances of any kind. None of such Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such shares, except as
provided in this Agreement, the ISSUER is not a party to any agreement which
offers or grants to any person the right to purchase or acquire any of the
securities to be issued to SHAREHOLDERS. There is no applicable local, state or
federal law, rule, regulation, or decree which would result of the issuance of
the Shares to SHAREHOLDERS, impair, restrict, or delay SHAREHOLDERS' voting
rights with respect to the Shares.
3. SHAREHOLDERS and MTI represent and warrant to ISSUER the
following:
i. Organization. MTI is a corporation duly organized,
validly existing, and in good standing under the laws of Arizona, and has all
necessary corporate powers to own properties and carry on a business, and is
duly qualified to do business and is in good standing in Arizona. All actions
taken by the Incorporators, directors and shareholders of MTI have been valid
and in accordance with the laws of the State of Arizona.
ii. Shareholder and Issued Stock. Exhibit A annexed hereto
sets forth the names and share holdings of 100% of MTI's shareholders.
3
iii. Listing Stock for Trading Upon closing, SHAREHOLDERS
and MTI shall take all steps reasonably necessary to get the ISSUER's common
stock listed for trading in NASD Automated Bulletin Board and to, as soon as
practicably possible, have the company listed with Standard and Poors or Moodys
in their Accelerated Corporate Report.
iv. Counsel. SHAREHOLDERS and MTI represent and warrant
that prior to Closing, that they are represented by independent counsel or have
had the opportunity to retain independent counsel to represent them in this
transaction and that prior to Closing, the law offices of Xxxxxx X. Xxxxxxxx &
Associates has acted as exclusive counsel to the ISSUER and has not represented
either the SHAREHOLDERS or MTI in any manner whatsoever.
4. INVESTMENT INTENT. SHAREHOLDERS agrees that the Shares being
issued pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agrees, prior to any
Transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction shall take place at the
law offices of Xxxxxx X. Xxxxxxxx,265 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx. Unless the closing of this transaction takes place on or before July
31, 1997, then either party may terminate this Agreement.
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Minutes authorizing the
issuance of a certificate or certificates for 8,500,000 Shares, registered in
the names of the SHAREHOLDERS equal to their pro-rata holdings in MTI.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing
such person as SHAREHOLDERS designate as a director(s) of ISSUER.
(4) The resignation of all of the directors of
ISSUER, except that of SHAREHOLDER'S designee, sated subsequent to the
resolution described in 3, above.
(5) Unaudited financial statements of ISSUER,
which shall include a balance sheet dated as of June 30, 1997 and statements of
operations, stockholders equity and cash flows for the twelve month period
ended.
(6) All of the business and corporate records
of ISSUER, including but not limited to correspondence files, bank statements,
checkbooks, savings account books, minutes of shareholder and director meetings,
financial statements, shareholder listings, stock transfer records, agreements
and contracts.
4
(7) Such other minutes of ISSUER's shareholders
or directors as may reasonably be required by SHAREHOLDERS.
(8) Within 14 days of closing, a private
placement memorandum pursuant to Rule 504 of Regulation D as promulgated under
the Securities Act of 1933 for up to 985,000 shares of ISSUER's stock, on a post
closing basis, at a price of $_____ per share.
(9) An Opinion Letter from ISSUER'S Attorney
attesting to the validity and condition of the ISSUER.
ii. By SHAREHOLDER ANS MTI:
(1) Delivery to the Issuer, to its Transfer
Agent, the certificates representing 100% of the issued and outstanding stock of
MTI.
(2) Consents signed by all of the shareholders
of MTI consenting to the terms of this Agreement.
7. REMEDIES.
i. Arbitration. Any controversy or claim arising out of,
or relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Palm Beach County, Florida in
accordance with the Rules of the American Arbitration Association under its
Commercial Arbitration Rules then existing, and judgment on the arbitration
award may be entered in any court having jurisdiction over the subject mater of
the controversy.
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph
headings throughout this Agreement are for convenience and reference only, and
shall in now way be deemed to define, limit, or add to the meaning of any
provision of this Agreement.
ii. No Oral change. This Agreement and any provision
herein, may not be waived, changed, modified, or discharged orally, but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (I) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
5
iv. Time of Essence. Time is of the essence of this
Agreement and of each and every provision hereof.
v. Entire Agreement. This Agreement contains the entire
Agreement and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
vii. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party to
whom notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: Xxxx X. Xxxxxxxx
X.X. Xxx 000
Xxxx Xxxxx, XX 00000
With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
MTI: Xxxxx X. Xxxxxxxx
0000 X. 00xx Xxx.
Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the undersigned has executed this Agreement this
15 day of July, 1997.
X X GLOBAL (U.S.A.), INC. MICOR TECHNOLOGIES, INC.
By: Xxxx X. Xxxxxxxx By: Xxxxx X. Xxxxxxxx
----------------------------------- --------------------------------
Xxxx X. Xxxxxxxx, President Xxxxx X. Xxxxxxxx, President
6
EXHIBIT A
SHAREHOLDERS OF MICOR TECHNOLOGIES, INC.
NAME SHARES
Xxxxx X. Xxxxxx 2,586
Xxxxxxx X. Xxxxxx 690
Xxxxxx Del Xxxxxx 690
Xxxxxxx X. Xxxxxx 5,747
Xxxxx X. Xxxxxxx 2,586
Xxxxxx X. Xxxxxx 345
Xxxxxx X. Xxxx 2,069
Xxxxx X. Xxxxxxxx 3,300,000
Xxxxxxx X. Xxxxx 3,285,287
Xxxx X. Day 750,000
Xxxxxx Xxxxxxxx 650,000
Xxxxx X. Xxxxxx 500,000
7
