EXHIBIT 10.2
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 "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE 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 COMMON STOCK
AGREEMENT made this 5th day of November, 2004, by and between Homeskills,
Inc., a Colorado corporation, (the "ISSUER") and the individuals listed in
Exhibit A attached hereto, (the "SHAREHOLDERS"), which SHAREHOLDERS own all of
the issued and outstanding shares of OTC Wireless, Inc. a California
corporation. ("OTC")
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 issue to SHAREHOLDERS, one (1) share of the
common stock of ISSUER, $0.0001 par value (the "Shares"), in exchange for each
issued and outstanding share of OTC owned by SHAREHOLDERS. This Agreement is
adopted by the parties as a plan of reorganization within the meaning of
Internal Revenue Code Section 368.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents, warrants and
covenants to and with SHAREHOLDERS and OTC as follows:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, 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 Colorado. All
actions taken by the Incorporators, directors and shareholders of ISSUER
have been valid and in accordance with the laws of the State of Colorado.
This Agreement has been approved by all necessary corporate action by
ISSUER.
ii. Capital.The authorized capital stock ISSUER consists of
100,000,000 shares of common stock, $0.0001 par value, of which 37,569,449
shares are issued and outstanding. After closing total issued and
outstanding will be 30,409,992, including employee stock option grants and
excluding 200,000 warrants. All outstanding shares are duly issued, fully
paid and non assessable, free of liens, encumbrances, options, restrictions
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and legal or equitable rights of others. Presently there are, and (except
as otherwise provided in 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 to 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 of ISSUER have valid title
to such shares and acquired their shares in a lawful transaction and in
accordance with the laws of Colorado. ISSUER is in the process of
conducting a private placement of up to 3,000,000 shares of ISSUER's common
stock at $0.65 per share.
iii. Financial Statements. Exhibit B to this Agreement includes the
income statement and balance sheet of ISSUER as and for the periods ending
June 30, 2004 and September 30, 2004. 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.
iv. Absence of Changes. Since the date of the most recent 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. There have
been no declarations or payments of dividends and no stock redemptions.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected on the
ISSUERS' financial statement. There are no pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock.
There is no dispute of any kind between the 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.
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viii. Contract and Leases. ISSUER is not currently carrying on any
business and is not a party to any benefit or retirement plan or contract,
agreement or lease. No person holds a power of attorney from ISSUER.
ix. Compliance with Laws. ISSUER has complied withall applicable laws
and is not in violation of any federal, state, or local statute, law,
and/or regulation pertaining to ISSUER. ISSUER and its underwriters, if
any, have 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
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 and affairs, if any, 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
other than the existing private placement of up to 3,000,000 shares
previously referenced, (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. ISSUER will not enter into
an agreement to take any of such prohibited actions.
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 (Exhibit D)
(2) Bylaws (Exhibit E)
(3) Minutes of Shareholders Meetings (Exhibit F)
(4) Minutes of Directors Meetings (Exhibit G)
(5) List of Officers and Directors (Exhibit H)
(6) Current Balance Sheet described in Section 2(iii) (Exhibit B)
(7) Stock register and stock records of ISSUER and a current, accurate
list of ISSUER's shareholders (Exhibit I)
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 Colorado. ISSUER will provide OTC with all information and
documents reasonably requested by OTC in connection with OTC's
investigation of ISSUER prior to closing. ISSUER will cooperate with OTC in
obtaining any necessary consents. ISSUER will maintain in confidence and
refrain from using, except for the purposes contemplated in the Agreement,
all confidential information provided to ISSUER by OTC.
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xiv. Title. The Shares to be issued to SHAREHOLDERS will be, at
closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions of any kind. Such shares will be
issued pursuant to applicable exemption(s) under federal and state
securities laws. 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, as a result of the
issuance of the Shares to SHAREHOLDERS, impair, restrict or delay
SHAREHOLDERS' voting rights with respect to the Shares.
xv. Fees. Neither ISSUER nor OTC are or ----- will be obligated to pay
brokers or finders fees as the result, in whole or part, of actions taken
or statements made by or on behalf of ISSUER.
xvi. Taxes. ISSUER has timely filed all ------ federal, state and
local tax returns, including, for example, income tax, corporate tax,
franchise tax, sales tax and property tax returns and reports, that it has
been required to file by law, regulation or rule and has paid all related
taxes. All such tax returns are complete and accurate in all material
respects.
3. OTC represents and warrants to ISSUER the following:
i. Organization OTC is a corporation duly organized, validly existing,
and in good standing under the laws of California, 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 California. All actions
taken by the Incorporators, directors and shareholders of OTC have been
valid and in accordance with the laws of California.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets forth
the names and share holdings of 100% of OTC shareholders.
4. INVESTMENT INTENT. SHAREHOLDERS agree 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 agree, 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
corporate headquarters of OTC.
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 22,409,992 Shares, registered in the
names of the SHAREHOLDERS based upon their holdings in OTC as agreed
to on Exhibit A.
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(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, on Exhibit "C".
(4) The resignation of all the directors of ISSUER, except that
of SHAREHOLDER'S designee, dated subsequent to the resolution
described in 3, above.
(5) Audited financial statements of the ISSUER filed with the
SEC, which shall include a current balance sheet and statements of
operations, stockholders equity and cash flows for the twelve month
period then 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
directors meetings, financial statements, shareholder listings, stock
transfer records, agreements and contracts.
(7) Such other minutes of ISSUER's shareholders or directors as
may reasonably be required by SHAREHOLDERS.
(8) An Opinion Letter from ISSUER's Attorney attesting to the
validity and condition of the ISSUER.
ii. BY SHAREHOLDERS AND OTC
(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding stock of
OTC.
(2) Consents signed by all the shareholders of OTC 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 then existing, and
judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter 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 no 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 hereof, 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.
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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.
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: Homeskills, Inc.
500 Australian Avenue South
Suite 619
West Palm Beach, FL 33401
SHAREHOLDERS: OTC Wireless, Inc.
48499 Milmont Drive
Fremont, CA 94538
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 5th
day of 5 November, 2004.
Homeskills, Inc. OTC Wireless, Inc.
By: /s/ Charles Adams By: /s/ Alex Tsao
- ------------------------- --------------------------
Charles Adams, President Alex Tsao, President
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EXHIBIT "A"
Name No. of Shares
C. H. Tsao 3,552,258.00
C. H. Tsao and Hsiao-Jen Tsao 200,000.00
Weiming Ou 500,000.00
Weiming Ou and Anchi Chang Ou 200,000.00
Ding Yuan Day and Shin-Mann Day 200,000.00
York Sung 26,250.00
Mao Sui Wang 400,000.00
Syed Hadi 9,874.00
Steve Viegas 30,000.00
Ray Negron 1,980.00
Eric Pearson 25,000.00
Yih Cheng Chen 31,680.00
Magic International 1,005,405.00
Don Rowland 12,811.00
Brian Lin 307,692.00
Jay Knabb 200,000.00
Leng C. Garcia 800,000.00
Perng-Fei Gou and Binnie C. Gou,
co-trustees of The Gou Living Trust u/t/a dtd. 12/9/88 800,000.00
George King and Lillian King 800,000.00
Chi-Lei Ni and Yuh Ni 200,000.00
Jei-Hsie Nie 1,622,528.00
Jerry Shih and Jean Shih 680,000.00
Judy Shih 216,000.00
Vision 2000 Venture Ltd. 4,536,458.00
Daitung Development & Investment Corp. 300,000.00
Futung Venture Capital Ltd. 300,000.00
Huitung Investments(BVI) Ltd. 1,100,000.00
Litung Venture Capital Ltd. 160,000.00
New Asian Venture Ltd. 930,232.00
Darsen Horng 80,000.00
Sun-Fong Tang 80,000.00
Trasia International Limited 80,000.00
Jene John Fu 80,000.00
Chou Mou, Lih-Er 80,000.00
Chao-Jung Chen 568,000.00
Channel Heart Limited 80,000.00
High Court Securities Limited 80,000.00
Ren-Chun Liao 80,000.00
Ting Herh 240,000.00
Julia Shih 80,000.00
Ming Chang Chiang 640,000.00
Yen-Ming Chen 20,000.00
Yi-Hsiang Chan 40,000.00
Paul Guilfoyle 270,270.00
R. Scott Rosenberg 54,054.00
21,700,492.00
Employee stock option granted 709,500
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