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 "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 25th day of May, 2005, by and between Blue Industries,
Inc., a Nevada corporation, (the "ISSUER") and Homeskills, Inc., (f/ka/ Pegasus
Wireless Corp.), ("PGWR").
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 of PGWR, 33,409,992 shares
of the common stock of ISSUER, $0.0001 par value (the "Shares"), in exchange for
100% of the outstanding 100% of the issued and outstanding shares of PGWR, such
that PGWR shall become a wholly owned subsidiary of the ISSUER.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to
SHAREHOLDERS the following:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Nevada, 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 Incorporators, directors and shareholders of ISSUER
have been valid and in accordance with the laws of the State of Nevada.
ii. Capital. The authorized capital stock ISSUER consists of
50,000,000 shares of common stock, $.0001 par value, of which no more than
41,143,078 are issued and outstanding stock. All outstanding 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 to transfer from treasury any
additional shares of its capital stock. Immediately following the closing
there will be no more than 33,628,090 shares of common stock issued and
outstanding. 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 Nevada.
3. PGWR represents and warrants to ISSUER the following:
i. Organization PGWR is a corporation duly organized, validly
existing, and in good standing under the laws of Colorado, has all
necessary corporate powers to own properties and carry on a business, and
is
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duly qualified to do business and is in good standing in Colorado. All
actions taken by the Incorporators, directors and shareholders of PGWR have
been valid and in accordance with the laws of Colorado.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets forth
the names and share holdings of PGWR shareholders.
iii. Absence of Changes. Since the date of the financial statements
(March 31, 2005, attached hereto), there has not been any change in the
financial condition or operations of PGWR, except changes in the ordinary
course of business, which changes have not in the aggregate been materially
adverse.
iv. Liabilities. PGWR 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 PGWR financial
statements. PGWR is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving PGWR or its common stock. There
is no dispute of any kind between the PGWR and any third party, and no such
dispute will exist at the closing of this Agreement. At closing, PGWR will
be free from any and all liabilities, liens, claims and/or commitments,
other than as disclosed in the financial statements.
v. Ability to Carry Out Obligations. PGWR 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 PGWR 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 PGWR 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
PGWR 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
PGWR or upon the securities of ISSUER to be acquired by PGWR shareholders.
vi. Full Disclosure. None of the representations and warranties made
by the PGWR, or in any certificate or memorandum furnished or to be
furnished by the PGWR, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
vii. Compliance with Laws. PGWR has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to PGWR. PGWR has complied with all federal and state securities
laws in connection with the issuance, sale and distribution of its
securities.
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viii. Litigation. PGWR 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 PGWR,
there is no basis for any such action or proceeding and no such action or
proceeding is threatened against PGWR and PGWR 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.
x. Conduct of Business. Prior to the closing, PGWR 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.
xi. 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) Current Balance Sheet together with other financial statements
described in Section 2(iii);
(7) Stock register and stock records of PGWR and a current, accurate
list of PGWR's shareholders.
xii. Documents. All minutes, consents or other documents pertaining to
PGWR to be delivered at closing shall be valid and in accordance with the
laws of Colorado.
xiii. Title. The Shares to be issued to PGWR shareholders will be, at
closing, free and clear of all liens, security interests, pledges, charges,
claims, encumbrances and restrictions 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 PGWR 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 PGWR
shareholders, impair, restrict or delay PGWR shareholders voting rights
with respect to the Shares.
4. INVESTMENT INTENT. PGWR 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.
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5. CLOSING. The closing of this transaction shall take place at the
Freemont, California office of PGWR.
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 33,409,992 Shares, registered in the
names of the PGWR shareholders based upon their holdings in PGWR as
agreed to on Exhibit A.
ii. By PGWR
(1) Delivery to the ISSUER, or to its Transfer Agent, the
certificates representing 100% of the issued and outstanding stock of
PGWR officers of ISSUER.
(2) The resignation of all
(3) A Board of Directors resolution appointing such person as
PGWR designate as a director(s) of ISSUER.
(5) The resignation of all the directors of ISSUER, except that
of PGWR'S designee/s, dated subsequent to the resolution described in
3, above.
(6) 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.
(7) 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 shareholders or directors as may
reasonably be required by PGWR.
(8) An Opinion Letter from ISSUERS Attorney attesting to the
validity and condition of the ISSUER.
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 Freemont, California 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.
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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.
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: c/o Xxxx Xxxxxx, Esq.
Xxxxxx Xxxx & Assoc.
0000 Xxxxxxxxxx Xx.
Xxxxxxxx, XX 00000
PGWR: Pegasus Wireless Corp.
00000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the undersigned has executed this Agreement this 25th
day of May 2005.
By: /s/Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx, President and sole Director
Blue Industries, Inc.
(ISSUER)
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, CFO and Director
Pegasus Wireless Corp.,
(PGWR)
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