Exhibit 10.1
Stock
Exchange Agreement (the “Agreement”) dated as of January
18th , 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 Xxxxxxxxxxx Xxxx, with a business address
at 3606, 00/X Xxxxxxxx Xxxxx, Xxxxxxxx Plaza, 3 Garden Road, Central, Hong Kong
(the “Stockholder”).
WHEREAS,
Holdings is a Delaware corporation incorporated in December 2003;
WHEREAS, the
sole shareholder of Holdings is the Stockholder, who owns one hundred (100) shares (the
“100 Holdings Shares”), of common stock, par value $.001
per share, of Holdings (the “Holdings Common Stock”);
WHEREAS,
the Stockholder owns 9,999 shares (the “Express Shares”) of
common stock of Wako Express (HK) Co. Ltd., a Hong Kong company in the business of
_International Sea Freight Forwarding_& Logistics, with an address at 3606, 36/F
Citibank Tower, Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
(“Express”), which 9,999 Express Shares constitute all of
the issued and outstanding shares of capital stock of Express, except for one (1) share of
Express common stock which is owned by T&T Nominees (the “1 Remaining
Express”);
WHEREAS,
the Stockholder owns 999,999 shares (the “Air Shares”) of
common stock of Wako Air Express (HK) Co. Ltd., a Hong Kong company in the business of
International Air Freight Forwarding and Logistics, with an address at 3606, 36/F Citibank
Tower, Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx Xxxx Xxxx
(“Air”), which 999,999 Air Shares constitute all of the
issued and outstanding shares of capital stock of Air , except for one (1) share of Air
common stock which is owned by T&T Nominees (the “1 Remaining Air
Share”);
WHEREAS,
Holdings desires to acquire from the Stockholder all of the (i) 9,999 Express Shares,
and (ii) 999,999 Air Shares owned by the Stockholder resulting in each of Express and Air
becoming an approximately 99.99% owned subsidiary of Holdings in exchange (the
“Exchange”), solely for the issuance to the Stockholder of
[19,999,900] shares of Holdings Common Stock (the “19,999,900 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 Stockholders shall exchange all
of his (i) 9,999 Express Shares, and (ii) 999,999 Air Shares for the
19,999,900 Holdings Shares to be issued simultaneously by Holdings to the
Stockholder. The Stockholder represents that it is acquiring all such 19,999,900
Holdings Shares for investment purposes only and agrees that the 19,999,900
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 all of the (a) 9,999 Express Shares, and
(b) 999,999 Air Shares which, other than the 1 Remaining Air Share and the
1 Remaining Express Share (collectively, the “Remaining
Shares”), shall constitute all of the issued and outstanding
capital of Express and Air, respectively, duly endorsed for transfer (or with
appropriate stock powers) so as to make Holdings the sole owner of all such
9,999 Express Shares, and 999,999 Air Shares free and clear of all claims and
encumbrances, and (ii) Holdings will deliver to the Stockholder a stock
certificate for 19,999,900 restricted Holdings Shares, which shall bear
appropriate transfer restrictive legends.
3.
Representations of the Stockholder. The Stockholder represents and
warrants to Holdings as follows:
| (a) |
The
Stockholder owns the (i) 9,999 Express Shares, and (ii) 999,999 Air
Shares 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) 9,999 Express Shares, and (ii) 999,999 Air Shares 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) 9,999 Express Shares, and (ii) 999,999 Air
Shares which, other than the Remaining Shares, constitutes all of the issued
and outstanding capital stock of Express and Air, respectively, and the
(i) 9,999 Express Shares, and (ii) 999,999 Air Shares 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 19,999,900 Holdings Shares for
investment purposes only and not with a view for resale and/or distribution. |
| (d) |
The
Stockholder understands and agrees that 19,999,900 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 19,999,900 Holdings Shares or such 19,999,900 Holdings Shares are exempt
from such registration requirements. |
| (e) |
The
1 Remaining Air Share and the 1 Remaining Express Share are beneficially owned
by the Stockholder as a result of T&T Nominees holding such Remaining
Shares in trust for the Stockholder. |
4.
Representations of Holdings. Holdings hereby represents and warrants to
the Stockholder, as follows:
| (a) |
The
19,999,900 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. |
| (c) |
Other
than the 100 Holdings Shares owned by the Stockholder, when issued in
accordance with the terms of this Agreement, such 19,999,900 Holdings Shares
shall constitute all of the issued and outstanding common stock of Holdings. |
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 9,999 Express Shares, duly endorsed in blank
(or with appropriate stock transfer powers). |
| (ii) |
Stock
certificate(s) representing the 999,999 Air Shares |
| (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 19,999,900 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/ Xxxxxxxxxxx Xxxx
Name: Xxxxxxxxxxx Xxxx
Title: President
Xxxxxxxxxxx Xxxx
(personally as the owner and transferor of the
9,999 Express Shares and the 999,999 Air Shares)
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