Exhibit 10.20 Agreement with XxXxxx.xxx
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement") is made this 23rd day of
December, 1999 by and between The Hartcourt Companies Inc., a Utah corporation
(`Hartcourt") and GoCall Inc., a Delaware corporation ("GoCall")
WHEREAS, GoCall and Hartcourt wish to form a strategic alliance for the
development of certain common interests of the two corporations, including but
not limited to the development of GoCall's internet related development-stage
businesses and software; and
WHEREAS, Hartcourt and GoCall wish to effect the proposed strategic
alliance by exchanging shares of the two respective corporations' common stock.
IN CONSIDERATION of the mutual promises contained herein, the benefits
to be derived by each party hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby expressly acknowledged,
Hartcourt and GoCall agree as follows:
1. Exchange
On the basis of the representations and warranties herein contained,
subject to the terms and conditions set forth herein, GoCall agrees to
exchange One Million(1,000,000 ) shares of its Convertible Preferred
Stock (par value @ $5.00) stock (the GoCall Shares") exercisable to 10
shares of GoCall Common Stock (Restricted under Rule 144 for 12
months)for each share of Convertible Preferred Shares so exchanged for
all of the shares as set forth in Schedule "A" attached hereto and made
a part hereof.("Hartcourt Shares").
2. Closing
A. Closing Date. The closing of the exchange contemplated by this
Agreement (the "Closing") shall occur upon the transfer of the
GoCall Shares to Hartcourt (the Transfer Date"), on December
29, 1999 at 4:00 PM of that day at the offices of Hartcourt. .
At the Closing, Hartcourt shall deliver its consideration to
GoCall and GoCall shall deliver its consideration to Hartcourt
in a simultaneous transaction. Notwithstanding the date of
Closing, the Effective Date shall be December 29, 1999.
3. Representations and Warranties of GoCall GoCall hereby represents and
warrants to Hartcourt that:
A. Organization. GoCall is a corporation validly existing and in
good standing under the laws of Delaware. with the power and
authority to carry on its business as now being conducted. The
execution and delivery of this Agreement and the consummation
of the transaction contemplated in this Agreement have been,
or will be prior to Closing, duly authorized by all requisite
corporate action on the part of GoCall, including but not
limited to Board of Director Resolutions ratifying this
transaction and that this Agreement has been duly executed and
delivered by GoCall and constitutes a binding and enforceable
obligation of GoCall. On Closing, a single five (5) member
Board of Directors shall be formed having three(3)members
appointed by Hartcourt and two(2)members appointed by GoCall.
B. Third Party Consent No authorization, consent, or approval of,
or registration or filing with, any governmental authority or
any other person is required to be obtained or made by GoCall
in connection with the execution, delivery or performance of
this Agreement, or if required, GoCall has or will obtain same
prior to Closing;
C. Litigation. GoCall is not a defendant or a plaintiff against
whom a claim has been made or reduced to judgement in any
litigation or proceedings before any local, state or U.S.
foreign government, or any department, board, body or agency
thereof, which could result in a claim against the GoCall
Shares or any of GoCall's assets;
D. Status of GoCall Shares. The GoCall Shares will be validly
issued by GoCall and it shall deliver same to Hartcourt at
Closing, as well as resolutions of GoCall's Board of Directors
wherein GoCall agrees not to issue or demand a "stop transfer"
be put into effect or against any of the GoCall Shares, or
otherwise attempt to restrict the transfer or exchange of the
GoCall Shares issued to Hartcourt hereunder. Further. GoCall
represents that it has not created any option, security
interest or encumbrance upon the GoCall Shares that would give
rise to any claims by third parties or otherwise conflict with
or preclude the exchange as contemplated herein; and
E. Authority. This Agreement has been duly executed by GoCall,
and the execution and performance of this Agreement will not
violate, or result in a breach of, or constitute a default in
any agreement, instrument, judgement, order or decree to which
GoCall is a party or to which the GoCall Shares may be
subject.
4. Representations and Warranties of Hartcourt
Hartcourt hereby represents and warrants to GoCall that:
A. Organization. Hartcourt is a corporation validly existing and
in good standing under the laws of Utah with the power and
authority to carry on its business now being conducted. The
execution and delivery of this Agreement and the consummation
of the transaction contemplated in this Agreement have been,
or will be prior to Closing, duly authorized by all requisite
corporate action on the part of Hartcourt. This Agreement has
been duly executed and delivered by Hartcourt and constitutes
a binding, and enforceable obligation of Hartcourt;
B. Third Party Consent. No authorization, consent, or approval
of, or registration or filing with, any governmental authority
or any other person is required to be obtained or made by
Hartcourt in connection with the execution, delivery or
performance of this Agreement, or if required, GoCall has or
will obtain same prior to Closing;
C. Litigation. Hartcourt is not a defendant or a plaintiff
against whom a counterclaim has been made or reduced to
judgement in any litigation or proceedings before any local,
state U.S. or foreign government, or any department, board,
body or agency thereof, which could result in a claim against
Hartcourt enacting this transaction.
D. Status of Hartcourt Owned Shares. The Shares constituting
Hartcourt's consideration Schedule "A" annexed hereto and
incorporated herein by reference will be validly endorsed by
Hartcourt or released to GoCall by written authorization duly
executed by Hartcourt which it shall deliver to GoCall at
Closing. Further, Hartcourt represents that it has not created
any option, security interest or encumbrance upon the Shares
that would give rise to any claims by third parties or
otherwise conflict with or preclude the exchange as
contemplated herein; and Hartcourt has never been an affiliate
of any of the companies in Schedule "A."
E. Authority. This Agreement has been duly executed by Hartcourt,
and the execution and performance of this Agreement will not
violate, or result in a breach of, or constitute a default in
any agreement, instrument, judgement, order or decree to which
Hartcourt is a party or to which the Hartcourt Shares may be
subject.
5. Conditions Precedent to Obligations of Hartcourt and GoCall
All obligations of Hartcourt and GoCall under this Agreement are
subject to the fulfillment, prior to or as of the Closing Date, of each
of the following conditions:
A. Transfer and Delivery of the Securities. Hartcourt shall have
endorsed or assigned or delivered the Shares to GoCall and
GoCall shall have issued and delivered the GoCall Shares to
Hartcourt pursuant to this Agreement.
B Acceptance of Documents. All instruments and documents
delivered to the parties hereto, pursuant to the provisions of
this Agreement, and the terms and conditions of the
agreement(s) shall be satisfactory to Hartcourt and GoCall.
6. Availability of Information
Hartcourt and GoCall each represent that, by virtue of their respective
business activities and economic bargaining power or otherwise, they
have been able to conduct their own due diligence and have had access
to or have been furnished with, prior to or concurrently with the
execution hereof, the information which they consider to be adequate to
make a decision to exchange the GoCall Shares for the Hartcourt owned
Shares.
7. Private Transaction
A. Private Offering. GoCall and Hartcourt each understand that
the exchange contemplated herein constitutes a private,
arms-length transaction between the parties without the use or
reliance upon a distribution or securities underwriter.
B. Purchase for Own Account. Neither GoCall nor Hartcourt are
underwriters of, or dealers in, the respective securities to
be exchanged hereunder, and neither party is acting as such or
participating pursuant to a contractual agreement, in the
distribution of such securities.
C. Investment Risk. Hartcourt and GoCall acknowledge the exchange
contemplated by this Agreement may involve a high degree of
financial risk, including the risk that one or both parties
may lose its entire investment.
D. Access to Information. GoCall and Hartcourt and their advisors
each have been afforded the opportunity to discuss the
transaction contemplated herein with legal and accounting
professionals, and to examine and evaluate the financial
impact of such exchange.
E. This Agreement has been duly executed by Hartcourt, and the
execution and performance of this Agreement will not violate,
or result in a breach of, or constitute a default in any
agreement, instrument, judgement, order or decree to which
Hartcourt is a party or to which the Hartcourt Shares may be
subject.
8. Termination
This Agreement may be terminated at anytime prior to the date of
Closing by either party if (a) there shall be any actual or threatened
action or proceeding by or before any court or any other governmental
body which shall seek to restrain, prohibit, or invalidate the
transaction contemplated by this Agreement, and which, in the judgment
of such party giving notice to terminate and based upon the advice of
legal counsel, makes it inadvisable to proceed with the transaction
contemplated by this Agreement.
9. Miscellaneous
A. Authority. The officers of Hartcourt and GoCall executing this
Agreement are duly authorized to do so and each party has
taken all action required by law or otherwise to properly and
legally execute this Agreement.
B. Notices. Any notice under this Agreement shall be deemed to
have been sufficiently given if sent by registered or
certified mail, postage prepaid, addressed as follows:
To GoCall Inc. GoCall Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Telephone: (000)000-0000
Facsimile: (000) 000-0000
To Hartcourt: The Hartcourt Companies Inc.
0000 X. Xxxxxx Xx.
Xxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to any other address which may hereafter be designated by
either party by notice given in such manner. All notices shall
be deemed to have been given as of the date of receipt.
C. Entire Agreement. This Agreement sets forth the entire
understanding between the parties hereto and no other prior
written or oral statement or agreement shall be recognized or
enforced.
D. Severability. If a court of competent jurisdiction determines
that any clause or provision of this Agreement is invalid,
illegal or unenforceable, the other clauses and provisions of
the Agreement shall remain in full force and effect and the
clauses and provisions which are determined to be void,
illegal or unenforceable shall be limited so that they shall
remain in effect to the extent permissible by law.
E. None of the parties hereto may assign this Agreement without
tbe express written consent of the other parties and any
approved assignment shall be binding on and inure to the
benefit of such successor or, in the event of death or
incapacity on assignor's heirs, executors, administrators and
successors.
F. Applicable Law. This Agreement bas been negotiated and is
being contracted for in the State of California, and it shall
be governed by the laws of California, County of Los Angeles,
notwithstanding any conflict-of-law provision to the contrary.
G Litigation. If any legal action or other preceding
(non-exclusively including arbitration) is brought for the
enforcement of or to declare any right or obligation under
this Agreement or as a result of a breach, default or
misrepresentation in connection with any of the provisions of
this Agreement, or otherwise because of a dispute among the
parties hereto, the prevailing party will be entitled to
recover actual attorney's fees (including for appeals and
collection) and other expenses incurred in such action or
proceeding, in addition to any other relief to which such
party may be entitled.
H. No Third Party Beneficiary. Nothing in this Agreement,
expressed or implied., is intended to confer upon any person,
other than the parties hereto and their successors, any rights
or remedies under or by reason of this Agreement, unless this
Agreement specifically states such intent.
I. It is understood and agreed that this Agreement may be
executed in any number of identical counterparts, each of
which may be deemed an original for all purposes.
J. Further Assurances. At any time, and from time to time after
the Closing, each party hereto will execute such additional
instruments and take such action as may be reasonably
requested by the other party to confirm or perfect title to
the securities being exchanged pursuant to this Agreement, or
otherwise to carry out the intent and purposes of this
Agreement.
K. Broker's or Finder' s Fee: Expenses. GoCall and Hartcourt each
warrant that they have not incurred any liability, contingent
or otherwise, for brokers' or finders fees or commissions
relating to this Agreement for which the other party shall
have responsibility. Except as otherwise provided herein, all
fees, costs and expenses incurred by either party relating to
this Agreement shall be paid by the party incurring same.
L. Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether
conferred herein, at law, or in equity, and may be enforced
concurrently herewith, and no waiver by any party of the
performance of any obligation by the other shall be construed
as a waiver of the same or any other default then,
theretofore, or thereafter occurring or existing. At any time
prior to Closing, this Agreement may be amended by a writing
signed by all parties hereto.
M. 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.
N. Facsimile. A facsimile, telecopy or other reproduction of
this instrument may be executed by one or more parties hereto
and such executed copy may be delivered by facsimile or
similar instantaneous electronic transmission device pursuant
to which the signature of or on behalf of such party can be
seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes. At the request
of any party hereto, all parties agree to execute an original
of this instrument as well as any facsimile, telecopy or
other reproduction hereof.
O. Announcements Except as required by law, no announcements
shall be made by either party with respect to the receipt or
acceptance of this agreement, or the transaction proposed
herein without the prior written permission of the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
"GoCall" "Hartcourt"
GoCall, Inc. The Hartcourt Companies, Inc.
By: By:
-------------------------- ------------------------------
Xxxxxxx Xxxx, CEO Xxxx X. Xxxx, Chairman
SCHEDULE "A"
1. 2,850,000 Common Stock Shares in Dega Technology, Inc.,
symbol: DEGA 500,000 Restricted, Balance without legend
2. 2,400,000 Preferred Shares in NuOasis Resorts, Inc.
symbol: NUOA without legend
3. 1,500,000 Common Stock Shares in Oasis Resorts International Inc.
symbol: OAIS without legend
4. 192,000 Common Stock Shares in Electronic Components & Systems, Inc.
symbol: ECSX without legend
AS TO ALL OF THE ABOVE SHARES, HARTCOURT REPRESENTS AND WARRANTS THAT IT IS
RELYING UPON THE REPRESENTATIONS OF ITS PREDECESSOR IN TITLE CONCERNING
"LEGENDS" AND IT CANNOT ITSELF CONFIRM THIS INFORMATION NOR IS IT HEREIN
PRESENTING AS TO THE TRUTH OR VALIDITY OF SUCH CLAIMS.
