Exhibit 99.2
AGREEMENT AND PLAN OF SHARE EXCHANGE
by and among
Starwin Media Group Holding,
a California Corporation,
and
the Stockholders of Starwin Media Group Holding
on the one hand;
and
Intermost Corporation,
a Wyoming corporation
on the other hand
February 8, 2005
AGREEMENT AND PLAN OF SHARE EXCHANGE
This definitive Agreement and Plan of Share Exchange, dated as of February 8,
2005 (this "Agreement"), is made and entered into by and among Starwin Media
Group Holding, a California corporation ("Starwin"), and Xxxxxx Xxxxxx Xxxxxxxx,
Xxxxxx X.X. Xxxxx, and Xxx Xxxxx, individuals who are the stockholders of
Starwin (collectively the "Stockholders"), on the one hand, and Intermost
Corporation, a Wyoming corporation ("IMOT"), on the other hand.
WHEREAS, the respective Boards of Directors of Starwin and IMOT have
adopted resolutions approving and adopting the proposed share exchange (the
"Exchange") upon the terms and conditions hereinafter set forth in this
Agreement;
WHEREAS, prior to the Closing of this Exchange, IMOT shall effect a
seven-to-one reverse split ("Reverse Split") of its common stock, issued and to
be issued outstanding shares, as of January 25, 2005 of 86,687,761. IMOT shall
issue an aggregate of 150,000,000 shares of its common stock and 5,000,000
shares of its preferred stock ("Preferred Stock") (upon completion of the
reverse split as stipulated in Article 1.1 of this Agreement), to the
Stockholders in exchange for the Starwin Shares as defined hereinafter;
WHEREAS, each of the Stockholders holds the number of shares of Starwin's
common stock set forth opposite such Stockholder's name in Table I on Schedule I
attached hereto (collectively, the "Starwin Shares"), which represent all of the
issued and outstanding capital stock of Starwin, and the Stockholders desire to
participate in the Exchange;
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WHEREAS, Starwin will enter into this Agreement for the purpose of
evidencing its consent to the consummation of the Exchange and for the purpose
of making certain representations, warranties, covenants and agreements;
WHEREAS, it is intended that the terms and conditions of this Agreement
comply in all respects with Section 368(a)(1)(B) of the Code and the regulations
corresponding thereto, so that the Exchange shall qualify as a tax free
reorganization under the Code;
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree
as follows:
ARTICLE 1
THE EXCHANGE
1.1 The Exchange. Upon the terms and subject to the conditions hereof, at
the Closing (as hereinafter defined) the Stockholders will sell, convey, assign,
transfer and deliver to IMOT one or more stock certificates representing the
Starwin Shares, and IMOT will issue to each of the Stockholders, in exchange for
such Stockholder's portion of the Starwin Shares, one or more stock certificates
representing the number of shares of its par value $0.001 per share common stock
("Common Stock") set forth opposite such Stockholder's name in Table II on
Schedule I attached hereto, and the number of shares of Series A Preferred Stock
set forth opposite such Stockholder's name in Table III on Schedule I In
addition, prior to the Closing of this Exchange, IMOT shall effect a
seven-to-one reverse split ("Reverse Split") of its common stock, subject to
shareholder approval if required by applicable law. The number of shares of IMOT
Common Stock to be issued for the Exchange shall be adjusted to reflect the
effect of any other stock split, reverse stock split, stock dividend,
reorganization, recapitalization or other like change with respect to the common
stock of IMOT occurring or having a record date or an effective date on or after
the date of this Agreement.
1.2 Closing. The closing of the Exchange (the "Closing") shall, subject to
conditions stated herein, take place on or before April 3, 2005 or on such other
date as may be mutually agreed upon by the parties. Such date is referred to
herein as the "Closing Date." If the Exchange cannot be closed within 100 days
after the signing of this Agreement, IMOT shall have the right to cancel this
Agreement and discharge their respective obligations, if any, in connection with
this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STARWIN
Starwin hereby represents and warrants to IMOT as follows:
2.1 Organization. Starwin has been duly incorporated, is validly existing
as a corporation and is in good standing under the laws of its jurisdiction of
incorporation, and has the requisite power to carry on its business as now
conducted.
2.2 Capitalization. The authorized capital stock of Starwin consists of
150,000,000 shares of common stock, $.001 par value, of which 150,000,000 shares
are issued and outstanding. All of the issued and outstanding shares of capital
stock of Starwin are duly authorized, validly issued, fully paid, non-assessable
and free of preemptive rights. There are no outstanding or authorized options,
rights, warrants, calls, convertible securities, rights to subscribe, conversion
rights or other agreements or commitments to which Starwin is a party or which
are binding upon Starwin providing for the issuance or transfer by Starwin of
additional shares of its capital stock and Starwin has not reserved any shares
of its capital stock for issuance, nor are there any outstanding stock option
rights, phantom equity or similar rights, contracts, arrangements or commitments
which are binding upon Starwin. There are no voting trusts or any other
agreements or understandings with respect to the voting of Starwin's capital
stock.
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2.3 Certain Corporate Matters. Starwin is duly qualified to do business as
a corporation and is in good standing in each jurisdiction in which the
ownership of its properties, the employment of its personnel or the conduct of
its business requires it to be so qualified, except where the failure to be so
qualified would not have a material adverse effect on Starwin's financial
condition, results of operations or business. Starwin has full corporate power
and authority and all authorizations, licenses and permits necessary to carry on
the business in which it is engaged and to own and use the properties owned and
used by it.
2.4 Authority Relative to this Agreement. Starwin has the requisite power
and authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement by Starwin
and the consummation by Starwin of the transactions contemplated hereby have
been duly authorized by the Stockholders and the Board of Directors of Starwin
and no other actions on the part of Starwin are necessary to authorize this
Agreement or the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Starwin and constitutes a valid and
binding agreement of Starwin, enforceable against Starwin in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally or
by general principles of equity.
2.5 Consents and Approvals; No Violations. Except for requirements of
applicable law, no filing with, and no permit, authorization, consent or
approval of, any third party, public body or authority is necessary for the
consummation by Starwin of the transactions contemplated by this Agreement.
Neither the execution and delivery of this Agreement by Starwin nor the
consummation by Starwin of the transactions contemplated hereby, nor compliance
by Starwin with any of the provisions hereof, will (a) conflict with or result
in any breach of any provisions of the organizational documents of Starwin, (b)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which Starwin is a party or by which it or its
properties or assets may be bound or (c) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Starwin, or any of its
properties or assets, except in the case of clauses (b) and (c) for violations,
breaches or default which are not in aggregate material to Starwin taken as a
whole.
2.6 Financial Statements. The reviewed consolidated balance sheets of
Starwin as of December 31, 2004 and reviewed consolidated statements of
operations and cash flows of Starwin for the 6 months ended December 31, 2004,
as well as the audited consolidated balance sheets of Starwin as of June 30,
2004 and audited statements of operations and cash flows of Starwin for the 12
months ended June 30, 2004, and the audited consolidated balance sheets of
Starwin as of June 30, 2003 and audited consolidated statements of operations
and cash flows of Starwin for the 12 months ended June 30, 2003 (collectively,
the "Starwin Financial Statements") (a) were prepared in accordance with the
books and records of Starwin; (b) were prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved (except as may be indicated in the notes thereto) and
fairly present the financial position of Starwin as of the dates thereof and its
statements of operations, stockholders' equity and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal and
recurring year-end audit adjustments which were and are not expected to have a
material adverse effect on Starwin, its business, financial condition or results
of operations). Except as and to the extent set forth on the consolidated
balance sheet of Starwin as of December 31, 2004, including the notes thereto,
Starwin has no liability or obligation of any nature (whether accrued, absolute,
contingent or otherwise and whether required to be reflected on a balance sheet
or not), except for liabilities and obligations incurred in the ordinary course
of business consistent with past practices since December 31, 2004 which in the
aggregate could not reasonably be expected to have a material adverse effect on
Starwin, its business, financial condition or results of operations. The Starwin
Financial Statements have been audited and/or reviewed by Starwin's auditor.
2.7 Absence of Material Changes. The net assets of Starwin as stated in
the reviewed financial statements of March 31, 2005, shall not be less than
eight million (US$8,000,000). Furthermore,since March 31, 2005, there has not
been any material adverse change in the condition (financial or otherwise) of
the properties, assets, liabilities or business of Starwin, except changes in
the ordinary course of business which, individually and in the aggregate, have
not been materially adverse.
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2.8 Title to Assets. Starwin has good and marketable title to all of the
assets and properties now carried on its books including those reflected in the
most recent balance sheet contained in the Starwin Financial Statements, free
and clear of all liens, claims, charges, security interests or other
encumbrances, except as described in the Starwin Financial Statements or arising
thereafter in the ordinary course of business (none of which will be material).
2.9 Disclosure. The representations and warranties and statements of fact
made by Starwin in this Agreement are, as applicable, accurate, correct and
complete and do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained herein not false or misleading.
2.10 Litigation Matters. Starwin is not a party to any material litigation
or any governmental investigation or proceeding and, to the knowledge of
Starwin, no such litigation or investigation is threatened.
2.11 Tax Returns. Starwin has, or by the Closing Date will have, filed all
material tax, governmental and/or related forms and reports (or extensions
thereof) due or required to be filed and/or has (or will have) paid or made
adequate provisions for all taxes or assessments which have become due as of the
Closing Date.
2.12 No Breach of Agreements. Starwin has not breached, and there is no
pending or threatened claim that Starwin has breached, any of the terms or
conditions of any agreements, contracts or commitments to which it is a party or
its properties are bound. Starwin has previously given IMOT copies of or access
to all material contracts, commitments and/or agreements to which Starwin is a
party, including all relationships or dealings with related parties or
affiliates.
2.13 Due Diligence Investigation. Starwin has made its corporate financial
records, minute books and other corporate documents and records available for
review to the management of Intermost Corporation prior to the Closing Date,
during reasonable business hours and on reasonable notice.
2.14 Representations Relating to ERISA. Starwin does not now have, nor has
it ever had, any (a) non-qualified deferred or incentive compensation or
retirement plans or arrangements, (b) qualified retirement plans or
arrangements, (c) other employee compensation, severance or termination pay or
welfare benefit plans, programs or arrangements or (d) any related trusts,
insurance contracts or other funding arrangements maintained, established or
contributed to by Starwin that would have been subject to the Employee
Retirement Income Security Act, commonly known as "ERISA".
2.15 Disclosure of Material Events. Starwin has disclosed in writing all
events, conditions and facts materially affecting its business, financial
condition and results of operations.
2.16 Legal Compliance. To the best knowledge of Starwin, after due
investigation, no claim has been filed against Starwin alleging a violation of
any applicable laws and regulations of foreign, federal, state and local
governments and all agencies thereof. Starwin holds all of the material permits,
licenses, certificates or other authorizations of foreign, federal, state or
local governmental agencies required for the conduct of its business as
presently conducted.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
The Stockholders hereby represent and warrant to IMOT as follows:
3.1 Ownership of the Starwin Shares. The Stockholders own, beneficially
and of record, all of the Starwin Shares, which represent all of the issued and
outstanding capital stock of Starwin, and have good and marketable title to the
Starwin Shares, free and clear of all security interests, liens, adverse claims,
encumbrances, equities, proxies, options or stockholders' agreements. At the
Closing, the Stockholders will convey to IMOT good and marketable title to the
Starwin Shares, free and clear of any security interests, liens, adverse claims,
encumbrances, equities, proxies, options, stockholders' agreements or
restrictions.
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3.2 Authority Relative to this Agreement. The execution, delivery and
performance of this Agreement by the Stockholders and the consummation by the
Stockholders of the transactions contemplated hereby have been duly authorized
by the Stockholders, and no other actions on the part of the Stockholders are
necessary to authorize this Agreement or the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by the
Stockholders and constitutes a valid and binding agreement of the Stockholder,
enforceable against the Stockholders in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity.
3.3 Consents and Approvals; No Violations. Except for requirements of
applicable laws, no filing with, and no permit, authorization, consent or
approval of, any public body or authority is necessary for the consummation by
the Stockholders of the transactions contemplated by this Agreement. Neither the
execution and delivery of this Agreement by the Stockholders nor the
consummation by the Stockholders of the transactions contemplated hereby, nor
compliance by the Stockholders with any of the provisions hereof, will (a)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, agreement or other
instrument or obligation to which the Stockholders is a party or by which the
Stockholders or his property may be bound or (b) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Stockholder,
except in the case of clauses (a) and (b) for violations, breaches or default
which are not in aggregate material to the Stockholder.
3.6 Restricted Securities. The Stockholders acknowledges that the IMOT
Shares will not be registered pursuant to the Securities Act of 1933, as amended
(the "Securities Act") or any applicable state securities laws, that the IMOT
Shares will be characterized as "restricted securities" under federal securities
laws, and that under such laws and applicable regulations the IMOT Shares cannot
be sold or otherwise disposed of without registration under the Securities Act
or an exemption therefrom. In this regard, the Stockholders are familiar with
Rule 144 promulgated under the Securities Act, as currently in effect, and
understands the resale limitations imposed thereby and by the Securities Act.
3.7 Accredited Investor. The Stockholders are "Accredited Investors" as
that term is defined in rule 501 of Regulation D promulgated under the
Securities Act. The Stockholders are able to bear the economic risk of acquiring
the IMOT Shares pursuant to the terms of this Agreement, including a complete
loss of the Stockholder's investment in the IMOT Shares.
3.8 Legend. The Stockholders acknowledge that the certificate(s)
representing the IMOT Shares shall each conspicuously set forth on the face or
back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO
THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED.
3.9 No Misrepresentation. No representation or warranty of the
Shareholders contained in this Agreement or in any schedule hereto nor in any
document furnished to IMOT contains or will contain any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading. No representation or warranty of
Starwin contained in this Agreement or in any schedule hereto furnished by
Starwin to IMOT pursuant to the terms hereof contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
IMOT
IMOT hereby represents and warrants to Starwin and the Stockholders as
follows:
4.1 Organization. IMOT is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation, and has
the requisite corporate power to carry on its business as now conducted.
4.2 Capitalization. IMOT's authorized capital stock consists of
500,000,000 shares of common stock and 5,000,000 shares of preferred stock.
Prior to the closing of the Exchange, IMOT shall effect a seven-to-one reverse
split of its common stock. Prior to the closing of the Exchange, IMOT shall
designate 5,000,000 shares of Series A Preferred Stock pursuant to a Certificate
of Designations, Rights, Privileges and Preferences of Series A Preferred Stock,
which shall be filed with the Wyoming Secretary of State at or prior to the
Closing. [(1) upon three years after its issuance, each share of Preferred Stock
shall, at the discretion of its holder, be converted into 10 shares of IMOT
common stock (post-reverse split); and (2) prior to conversion into IMOT common
stock, the Preferred Stock shall have no voting rights and no right to receive
dividends.] THESE TERMS NEED TO BE SPECIFIED IN THE CERTIFICATE OF DESIGNATIONS
All issued and outstanding shares of IMOT common stock are duly authorized,
validly issued, fully paid, non-assessable and free of preemptive rights. When
issued, the IMOT Common Stock will be duly authorized, validly issued, fully
paid, non-assessable and free of preemptive rights.
4.3 Certain Corporate Matters. IMOT is duly licensed or qualified to do
business and is in good standing as a foreign corporation in every jurisdiction
in which the character of IMOT's properties or nature of IMOT's business
requires it to be so licensed or qualified other than such jurisdictions in
which the failure to be so licensed or qualified does not, or insofar as can
reasonably be foreseen, have a material adverse effect on its financial
condition, results of operations or business. IMOT has full corporate power and
authority and all authorizations, licenses and permits necessary to carry on the
business in which it is engaged or in which it proposes presently to engage and
to own and use the properties owned and used by it. IMOT has delivered to
Starwin true, accurate and complete copies of its Certificate of Incorporation
and Bylaws, which reflect all restatements of and amendments made thereto at any
time prior to the date of this Agreement. The records of meetings of the
stockholders and Board of Directors of IMOT are complete and correct in all
material respects. The stock records of IMOT and the stockholder lists of IMOT
that IMOT has previously furnished to Starwin are complete and correct in all
material respects and accurately reflect the record ownership and the beneficial
ownership of all the outstanding shares of IMOT's capital stock and any other
outstanding securities issued by IMOT. IMOT is not in default under or in
violation of any provision of its Certificate of Incorporation or Bylaws in any
material respect. IMOT is not in any material default or in violation of any
restriction, lien, encumbrance, indenture, contract, lease, sublease, loan
agreement, note or other obligation or liability by which it is bound or to
which any of its assets is subject. Except, IMOT is undergoing an exercise of a
private placement and securing of general banking facilities.
4.4 Authority Relative to this Agreement. IMOT has the requisite corporate
power and authority to enter into this Agreement and carry out its obligations
hereunder. The execution, delivery and performance of this Agreement by IMOT and
the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of IMOT and no other actions on the part of
IMOT are necessary to authorize this Agreement or the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by IMOT
and constitutes a valid and binding obligation of IMOT, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity.
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4.5 Consents and Approvals; No Violations. Except for applicable
requirements of federal securities laws and state securities or blue-sky laws,
no filing with, and no permit, authorization, consent or approval of, any third
party, public body or authority is necessary for the consummation by IMOT of the
transactions contemplated by this Agreement. Neither the execution and delivery
of this Agreement by IMOT nor the consummation by IMOT of the transactions
contemplated hereby, nor compliance by IMOT with any of the provisions hereof,
will (a) conflict with or result in any breach of any provisions of the charter
or Bylaws of IMOT, (b) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation to which IMOT is a party
or by which it or any of its properties or assets may be bound or (c) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
IMOT, or any of its properties or assets, except in the case of clauses (b) and
(c) for violations, breaches or defaults which are not in the aggregate material
to IMOT taken as a whole.
4.6 SEC Documents. IMOT hereby makes reference to the following documents
filed with the United States Securities and Exchange Commission (the "SEC"), as
posted on the SEC's website, xxx.xxx.xxx: (collectively, the "SEC Documents"):
(a) Annual Report on Form 10-KSB for the fiscal year ended June 30, 2004; and
(b) Quarterly Reports on Form 10-QSB for the periods ended March 31, 2003,
September 30, 2003, December 31, 2003, March 31, 2004 and September 30, 2004,
and all amendments thereto and (c) all other forms filed with the SEC by IMOT.
The SEC Documents constitute all of the documents and reports that IMOT was
required to file with the SEC pursuant to the Securities Exchange Act of 1934
("Exchange Act") and the rules and regulations promulgated thereunder by the SEC
since June 1999. To IMOT's knowledge, as of their respective dates, the SEC
Documents complied in all material respects with the requirements of the
Exchange Act and the rules and regulations promulgated thereunder and, to IMOT's
knowledge, none of the SEC Documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. To IMOT's knowledge, the financial
statements of IMOT included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles in the United States
(except, in the case of unaudited statements, as permitted by the applicable
form under the Exchange Act) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly present
the financial position of IMOT as of the dates thereof and its statements of
operations, stockholders' equity and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal and recurring year-end
audit adjustments which were and are not expected to have a material adverse
effect on IMOT, its business, financial condition or results of operations).
Except as and to the extent set forth on the consolidated balance sheet of IMOT
as of September 30, 2004, including the notes thereto, IMOT has no liability or
obligation of any nature (whether accrued, absolute, contingent or otherwise and
whether required to be reflected on a balance sheet or not), except for
liabilities and obligations incurred in the ordinary course of business
consistent with past practices since September 30, 2004 which in the aggregate
could not reasonably be expected to have a material adverse effect on IMOT, its
business, financial condition or results of operations.
4.7 Financial Statements.
(a) Included in the SEC Documents are the audited balance sheet of
IMOT as at June 30, 2003 and 2004, and the related statements of income,
stockholders' equity and cash flows for the two years then ended, together with
the unqualified report thereon (except with respect to continuation as a going
concern) of Grobstein, Xxxxxxx & Company LLP ("Horwath"), independent auditor
(collectively, "IMOT's Audited Financials").
(b) Included in the SEC Documents are the unaudited balance sheets
of IMOT as at September 30, 2004, and the related statements of operations and
cash flows for the three months ended September 30, 2004, as reviewed by Horwath
("IMOT's Interim Financials"). The unaudited balance sheet at September 30, 2004
included in IMOT's Interim Financials is hereinafter referred to as the
"Unaudited Balance Sheet" and September 30, 2004 is hereinafter referred to as
the "IMOT Balance Sheet Date".
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(c) IMOT's Audited Financials and IMOT's Interim Financials
(collectively "IMOT's Financial Statements") are (i) in accordance with the
books and records of IMOT, (ii) materially correct and complete, (iii) fairly
present the financial position and results of operations of IMOT as of the dates
indicated, and (iv) prepared in accordance with U.S. GAAP (except that (x)
unaudited financial statements may not be in accordance with GAAP because of the
absence of footnotes normally contained therein, and (y) interim (unaudited)
financials are subject to normal year-end audit adjustments that in the
aggregate will not have a material adverse effect on IMOT, its business,
financial condition or results of operations.
4.8 Events Subsequent to Financial Statements. Since June 30, 2004, there
has not been:
(a) Any sale, lease, transfer, license or assignment of any assets,
tangible or intangible, of IMOT;
(b) Any damage, destruction or property loss, whether or not covered by
insurance, affecting adversely the properties or business of IMOT;
(c) Any subjection to any lien on any of the assets, tangible or
intangible, of IMOT;
(d) Any waiver or release by IMOT of any right of any material value;
(e) Any change made or authorized in the Certificate of Incorporation or
Bylaws of IMOT;
4.9 Undisclosed Liabilities. Except as otherwise disclosed in IMOT's
Financial Statements, IMOT has no material liability or obligation whatsoever,
either direct or indirect, matured or unmatured, accrued, absolute, contingent
or otherwise.
4.10 Tax Matters.
(a) IMOT has duly filed all material federal, state, local and foreign tax
returns required to be filed by or with respect to it with the Internal
Revenue Service or other applicable taxing authority, and no extensions
with respect to such tax returns have been requested or granted;
(b) IMOT has paid, or, to its knowledge, adequately reserved against in
IMOT's Financial Statements, all material taxes due, or claimed by any
taxing authority to be due, from or with respect to it;
(c) To the best knowledge of IMOT, there has been no material issue raised
or material adjustment proposed (and none is pending) by the Internal
Revenue Service or any other taxing authority in connection with any of
IMOT's tax returns;
(d) No waiver or extension of any statute of limitations as to any
material federal, state, local or foreign tax matter has been given by or
requested from IMOT; and
(e) IMOT has not filed a consent under Section 341(f) of the Internal
Revenue Code of 1986, as amended.
For the purposes of this Section 4.10, a tax is due (and must therefore
either be paid or adequately reserved against in IMOT's Financial Statements)
only on the last date payment of such tax can be made without interest or
penalties, whether such payment is due in respect of estimated taxes,
withholding taxes, required tax credits or any other tax.
4.11 Real Property. IMOT does not own or lease any real property.
4.12 Books and Records. The books and records of IMOT delivered to the
Stockholders prior to the Closing fully and fairly reflect the transactions to
which IMOT is a party or by which it or its properties are bound.
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4.13 Questionable Payments. Neither IMOT nor any employee, agent or
representative of it has, directly or indirectly, made any bribes, kickbacks,
illegal payments or illegal political contributions using Company funds or made
any payments from IMOT's funds to governmental officials for improper purposes
or made any illegal payments from IMOT's funds to obtain or retain business.
4.14 Environmental Matters. IMOT has no operations in the United States
and its Chinese operations are not subject to US environmental laws.
4.15 Litigation. Except as disclosed in the SEC Documents, IMOT is not
subject to any judgment or order of any court or quasijudicial or administrative
agency of any jurisdiction, domestic or foreign, nor is there any charge,
complaint, lawsuit or governmental investigation pending against IMOT. IMOT is
not a plaintiff in any action, domestic or foreign, judicial or administrative.
There are no existing actions, suits, proceedings against or investigations of
IMOT, and IMOT knows of no basis for such actions, suits, proceedings or
investigations. There are no unsatisfied judgments, orders, decrees or
stipulations affecting IMOT or to which IMOT is a party.
4.16 Legal Compliance. To the best knowledge of IMOT, after due
investigation, no claim has been filed against IMOT alleging a violation of any
applicable laws and regulations of foreign, federal, state and local governments
and all agencies thereof. IMOT holds all of the material permits, licenses,
certificates or other authorizations of foreign, federal, state or local
governmental agencies required for the conduct of its business as presently
conducted.
4.17 Disclosure. The representations and warranties and statements of fact
made by IMOT in this Agreement are, as applicable, accurate, correct and
complete and do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained herein not false or misleading.
ARTICLE 5
INDEMNIFICATION
5.1 IMOT hereby agrees to indemnify Starwin, the Stockholders and each of
the officers, agents and directors of Starwin against any loss, liability,
claim, damage or expense (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever) to which it or
they may become subject arising out of or based on any breach of or inaccuracy
in any of the representations and warranties made by IMOT herein or any
misrepresentation made by IMOT in this Agreement. The indemnification provided
for in this paragraph shall survive the Closing until the expiration of the
applicable statute of limitations.
5.2 The Stockholders hereby agree to indemnify IMOT and each of the
officers, agents and directors of IMOT against any loss, liability, claim,
damage or expense (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever) to which it or
they may become subject arising out of or based on any breach of or inaccuracy
in any of the representations and warranties made by Starwin and/or the
Stockholders herein or any misrepresentation made by Starwin and/or the
Stockholders in this Agreement. The indemnification provided for in this
paragraph shall survive the Closing until the expiration of the applicable
statute of limitations.
ARTICLE 6
COVENANTS AND AGREEMENTS OF THE PARTIES
EFFECTIVE PRIOR TO CLOSING
6.1 Corporate Examinations and Investigations. Prior to the Closing, each
party shall be entitled, through its employees and representatives, to make such
investigations and examinations of the books, records and financial condition of
Starwin (and its consolidated subsidiaries) and IMOT as each party may request.
In order that each party may have the full opportunity to do so, Starwin and
IMOT, and the Stockholders shall furnish each party and its representatives
during such period with all such information concerning the affairs of Starwin
or IMOT as each party or its representatives may reasonably request and cause
Starwin or IMOT and their respective officers, employees, consultants, agents,
accountants and attorneys to cooperate fully with each party's representatives
in connection with such review and examination and to make full disclosure of
all information and documents requested by each party and/or its
representatives. Any such investigations and examinations shall be conducted at
reasonable times and under reasonable circumstances, it being agreed that any
examination of original documents will be at each party's premises, with copies
thereof to be provided to each party and/or its representatives upon request.
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6.2 Cooperation; Consents. Prior to the Closing, each party shall
cooperate with the other parties to the end that the parties shall (i) in a
timely manner make all necessary filings with, and conduct negotiations with,
all authorities and other persons the consent or approval of which, or the
license or permit from which is required for the consummation of the Exchange
and (ii) provide to each other party such information as the other party may
reasonably request in order to enable it to prepare such filings and to conduct
such negotiations.
6.3 Conduct of Business. Subject to the provisions hereof, from the date
hereof through the Closing, each party hereto shall (i) conduct its business in
the ordinary course and in such a manner so that the representations and
warranties contained herein shall continue to be true and correct in all
material respects as of the Closing as if made at and as of the Closing and (ii)
not enter into any material transactions or incur any material liability not
required or specifically contemplated hereby, without first obtaining the
written consent of Starwin and the Stockholders on the one hand and IMOT on the
other hand. Without the prior written consent of Starwin, the Stockholders, or
IMOT, except as required or specifically contemplated hereby, each party shall
not undertake or fail to undertake any action if such action or failure would
render any of said warranties and representations untrue in any material respect
as of the Closing.
6.4 Litigation. From the date hereof through the Closing, each party
hereto shall promptly notify the representative of the other parties of any
lawsuits, claims, proceedings or investigations which after the date hereof are
threatened or commenced against such party or any of its affiliates or any
officer, director, employee, consultant, agent or shareholder thereof, in their
capacities as such, which, if decided adversely, could reasonably be expected to
have a material adverse effect upon the condition (financial or otherwise),
assets, liabilities, business, operations or prospects of such party or any of
its subsidiaries.
6.5 Notice of Default. From the date hereof through the Closing, each
party hereto shall give to the representative of the other parties prompt
written notice of the occurrence or existence of any event, condition or
circumstance occurring which would constitute a violation or breach of this
Agreement by such party or which would render inaccurate in any material respect
any of such party's representations or warranties herein.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 Conditions to Obligations of Starwin and the Stockholder. The
obligations of Starwin and the Stockholders under this Agreement shall be
subject to each of the following conditions:
(a) Closing Deliveries. At the Closing, IMOT shall have delivered or
caused to be delivered to Starwin and the Stockholders the following:
(i) certified resolutions duly adopted by the Board of
Directors of IMOT authorizing and approving the Exchange and the
execution, delivery and performance of this Agreement;
(ii) a certificate of good standing for IMOT from the
Secretary of State of the State of Wyoming, dated not earlier than
five days prior to the Closing Date;
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(iii) written resignations of all directors except Xx. Xxxx
Xxx and all officers of IMOT in office immediately prior to the
Closing, and a board certified resolutions electing the Stockholders
appointed individuals as directors of IMOT;
(iv) certificates representing the IMOT Shares bearing the
name of the Stockholders and/or their designates;
(v) such other documents as Starwin may reasonably request in
connection with the transactions contemplated hereby.
(b) Representations and Warranties to be True. The representations
and warranties of IMOT herein contained shall be true in all material respects
at the Closing with the same effect as though made at such time. IMOT shall have
performed in all material respects all obligations and complied in all material
respects with all covenants and conditions required by this Agreement to be
performed or complied with by it at or prior to the Closing.
7.2 Conditions to Obligations of IMOT. The obligations of IMOT under this
Agreement shall be subject to each of the following conditions:
(a) Closing Deliveries. On the Closing Date, Starwin and/or the
Stockholders shall have delivered to IMOT the following:
(i) one or more certificates representing the Starwin Shares
to be delivered pursuant to this Agreement duly endorsed or
accompanied by duly executed stock power; and
(ii) certified resolutions adopted during Starwin
shareholders' meeting authorizing and approving the Exchange and the
execution of this transaction;
(iii) certified resolutions duly adopted by the Board of
Directors of Starwin authorizing and approving the Exchange and the
execution, delivery and performance of this Agreement;
(iv) certified resolutions duly adopted by the Stockholders
authorizing and approving the Exchange and the execution, delivery
and performance of this Agreement;
(v) such other documents as IMOT may reasonably request in
connection with the transactions contemplated hereby.
(vi) Documents evidencing the commitment of investment banks
to underwrite the public offering, private placement or convertible
debentures to raise US$200 million for Starwin upon Closing at not
less than US$10 per share, subject to provisions of materials,
disclosures, and certain related transactions information.
(b) Representations and Warranties to be True. The representations
and warranties of Starwin and the Stockholders herein contained shall be true in
all material respects at the Closing with the same effect as though made at such
time. Starwin and the Starwin Stockholders shall have performed in all material
respects all obligations and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or complied
with by them at or prior to the Closing.
(c) No Material Adverse Change. There shall not have occurred any
material adverse change with respect to Starwin.
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ARTICLE 8
POST-CLOSING COVENANTS
8.1 Anti-Dilution Clause. Within 180 days after Closing, in no event
except for private placements, public offerings or acquisitions , in each case
at the current market price of IMOT's Common Stock on arm's length basis, shall
IMOT issue or enter into any agreement to issue IMOT common stock or other
securities convertible into IMOT common stock which may result in material
dilution of those shareholders of IMOT who were shareholders immediately prior
the Closing.
8.2 Management. After Closing of the Exchange, IMOT shall retain the key
management of IMOT and maintain their employment terms for minimum 3 years with
the remuneration not less than their remuneration before Closing.
8.3 Registration Statement. Within 60 days following the Closing, IMOT
shall file a registration statement with the SEC on Form S-1 registration
statement or any form(s) it is entitled to use to register a certain number of
shares of IMOT common stock in connection with a public offering or shall
undertake a private placement as stipulated in Clause 7.2(a) (vi) of this
Agreement, to raise gross proceeds of at least US$200 million, a written
commitment of which is provided at or prior to Closing. Any public offering
shall be a firm commitment offering through an underwriter satisfactory to IMOT.
ARTICLE 9
TERMINATION
9.1 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing Date:
(a) by mutual consent of the parties; or
(b) by IMOT, if Starwin Shareholders are unable to secure a firm
commitment of placement for a sum of no less than $200 million
in a public offering or private placement at not less than $10
per share for a certain number of shares to be registered
under S-1 or any other form(s) of registration statements. The
commitment for placement of funds maybe affected due to IMOT
non-compliance, IMOT shall not have the right to call for a
termination.
(c) If termination to be called upon by IMOT, all banking
facilities, funds raised by Starwin and its associates and
used by IMOT and its subsidiaries shall be refunded with
interests and bank charges to Starwin, upon termination.
ARTICLE 10
GENERAL PROVISIONS
10.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally,
sent by overnight courier or mailed by registered or certified mail (postage
prepaid and return receipt requested) to the party to whom the same is so
delivered, sent or mailed at addresses set forth on the signature page hereof
(or at such other address for a party as shall be specified by like notice).
10.2 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
sections and articles of this Agreement unless otherwise stated.
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10.3 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated and the parties shall negotiate
in good faith to modify this Agreement to preserve each party's anticipated
benefits under this Agreement.
10.4 Miscellaneous. This Agreement (together with all other documents and
instruments referred to herein): (a) constitutes the entire agreement and
supersedes all other prior agreements and undertakings, both written and oral,
among the parties with respect to the subject matter hereof; (b) except as
expressly set forth herein, is not intended to confer upon any other person any
rights or remedies hereunder and (c) shall not be assigned by operation of law
or otherwise, except as may be mutually agreed upon by the parties hereto.
10.5 Separate Counsel. Each party hereby expressly acknowledges that it
has been advised to seek its own separate legal counsel for advice with respect
to this Agreement, and that no counsel to any party hereto has acted or is
acting as counsel to any other party hereto in connection with this Agreement.
10.6 Governing Law; Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Wyoming,
U.S.A. Any and all actions brought under this Agreement shall be brought in the
state and/or federal courts of the United States and each party hereby waives
any right to object to the convenience of such venue.
10.7 Counterparts and Facsimile Signatures. This Agreement may be executed
in two or more counterparts, which together shall constitute a single agreement.
This Agreement and any documents relating to it may be executed and transmitted
to any other party by facsimile, which facsimile shall be deemed to be, and
utilized in all respects as, an original, wet-inked document.
10.8 Amendment. This Agreement may be amended, modified or supplemented
only by an instrument in writing executed by all parties hereto.
10.9 Parties In Interest: No Third Party Beneficiaries. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. This Agreement
shall not be deemed to confer upon any person not a party hereto any rights or
remedies hereunder.
10.10 Waiver. No waiver by any party of any default or breach by another
party of any representation, warranty, covenant or condition contained in this
Agreement shall be deemed to be a waiver of any subsequent default or breach by
such party of the same or any other representation, warranty, covenant or
condition. No act, delay, omission or course of dealing on the part of any party
in exercising any right, power or remedy under this Agreement or at law or in
equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies. All remedies, whether at law or in equity,
shall be cumulative and the election of any one or more shall not constitute a
waiver of the right to pursue other available remedies.
10.11 Expenses. At or prior to the Closing, the parties hereto shall pay
all of their own expenses relating to the transactions contemplated by this
Agreement, including, without limitation, the fees and expenses of their
respective counsel and financial advisers.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INTERMOST CORPORATION
By: /s/ Xxxx Xxx
------------------------------------------
Name: Xxxx Xxx
----------------------------------------
Title: President
---------------------------------------
Address: 00/X Xxxxxx Xxxxxxxx
Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XXXXX
STARWIN MEDIA GROUP HOLDING
By: /s/ Xxx Xxxxx
------------------------------------------
Name: Xxx Xxxxx
----------------------------------------
Title: CEO
---------------------------------------
Address: 00000 Xxxxxxxxx Xx, Xxxxx 000
Xxxx xx Xxxxxxxx, XX 00000
U.S.A
[SIGNATURES CONTINUE ON NEXT PAGE]
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STOCKHOLDERS
By: /s/ Xxxxxx Hiraru Yamamoto
------------------------------------------
Name: Xxxxxx Hiraru Yamamoto
----------------------------------------
Title:
---------------------------------------
Address: c/o 00000 Xxxxxxxxx Xx, Xxxxx 000
Xxxx xx Xxxxxxxx, XX 00000
U.S.A
By: /s/ Xxxxxx X.X. Xxxxx
------------------------------------------
Name: Xxxxxx X.X. Xxxxx
----------------------------------------
Title:
---------------------------------------
Address: c/o 00000 Xxxxxxxxx Xx, Xxxxx 000
Xxxx xx Xxxxxxxx, XX 00000
U.S.A
By: /s/ Xxx Xxxxx
------------------------------------------
Name: Xxx Xxxxx
----------------------------------------
Title:
---------------------------------------
Address: c/o 00000 Xxxxxxxxx Xx, Xxxxx 000
Xxxx xx Xxxxxxxx, XX 00000
U.S.A
15
SCHEDULE I
The following table provides the amount and class of IMOT Shares of Common
Stock and Series A Preferred Stock that each Starwin Shareholders' shall receive
as consideration in exchange for his or her Shares of Common Stock in Starwin.
Table I
The following describes the number of Shares of Starwin Common Stock holds
by Starwin Stockholders, as set forth opposite to such Stockholder's name.
--------------------------------------------------------------------------
NAME SHARES OF COMMON STOCK
--------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 76,500,000
--------------------------------------------------------------------------
Xxxxxx X.X. Xxxxx 3,500,000
--------------------------------------------------------------------------
Xxx Xxxxx 70,000,000
--------------------------------------------------------------------------
Table II
The following table describes the number of Shares of IMOT Common Stock
that Starwin Stockholders shall receive as consideration to this Plan of Share
Exchange, as set forth opposite to such Stockholder's name.
--------------------------------------------------------------------------
NAME NUMBER OF SHARES OF NUMBER OF SHARES OF
STARWIN COMMON STOCK IMOT COMMON STOCK AS
CONSIDERATION TO THIS
PLAN OF SHARE EXCHANGE
--------------------------------------------------------------------------
Xxxxxx X.Xxxxxxxx 76,500,000 76,500,000
--------------------------------------------------------------------------
Xxxxxx X.X. Xxxxx 3,500,000 3,500,000
--------------------------------------------------------------------------
Xxx Xxxxx 70,000,000 70,000,000
--------------------------------------------------------------------------
Table III
The following describes the number of Shares of IMOT Series A Preferred
Stock that Starwin Stockholders shall receive as consideration to this Plan of
Share Exchange, as set forth opposite to such Stockholders' name.
--------------------------------------------------------------------------
NAME NUMBER OF SHARES OF IMOT SERIES
A PREFERRED STOCK
--------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 0
--------------------------------------------------------------------------
Xxxxxx X.X. Xxxxx 0
--------------------------------------------------------------------------
Xxx Xxxxx 5,000,000
--------------------------------------------------------------------------
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