EXHIBIT 10.32
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (the "AGREEMENT") is made as of March 18,
2004, by and between IA GLOBAL INC., a corporation organized and existing under
the laws of the State of Delaware (the "PURCHASER"), ▇▇▇ TOKYO CO., LTD., a
corporation organized and existing under the laws of Japan (the "COMPANY"),
relating to the sale by the Company to the Purchaser of common shares of the
Company (the "COMPANY SHARES").
P R E L I M I N A R Y S T A T E M E N T S
A. The Purchaser desires to purchase from the Company 1,000 Company
Shares at a price of One Hundred Thousand Yen ((Y)100,000) per share (the
"PURCHASED SHARES");
B. The Company desires to receive such payment from the Purchaser and,
in consideration therefor, to issue and transfer title to the Purchaser of the
Purchased Shares;
C. The Company and the Purchaser desire to set forth in writing their
agreements and understandings with respect to the Purchased Shares and to
matters ancillary thereto in this Agreement and in a Stockholders' Agreement,
dated as of the same date hereof, among the parties hereto and such other
holders of the Company Shares as set forth therein (the "STOCKHOLDERS'
AGREEMENT");
NOW, THEREFORE, for and in consideration of the premises, covenants,
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties do
covenant, agree, represent, warrant, and stipulate as follows:
A G R E E M E N T
1. PURCHASE
1.1. PURCHASE BY PURCHASER. Subject to the terms and conditions set
forth herein, the Purchaser hereby agrees to purchase from the Company One
Thousand (1,000) Company Shares in exchange for payment of One Hundred Million
Japanese Yen ((Y)100,000,000) (the "PURCHASE CASH AMOUNT"), which Purchase Cash
Amount shall be paid to the Company by wire transfer to the designated capital
holding account on the specified date not later than fifteen business days of
the date hereof (such date on which payment of the Purchase Cash Amount is
received, the "CLOSING DATE").
1.2. ISSUANCE OF CERTIFICATES REPRESENTING THE COMPANY SHARES.
Certificates representing the Company Shares, each duly endorsed in blank or
with stock powers duly executed by the Company will be delivered to the
Purchaser following the Company's receipt of
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the Purchaser Cash Amount, and the completion of Government regulations
regarding the registration of newly issued Company Shares.
1.3. BOARD REPRESENTATION. The Company acknowledges and agrees that
upon the purchase of the Purchased Shares, the Purchaser will be entitled to
elect a majority of directors on the Board of Directors of the Company (the
"BOARD").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser, as of the
date hereof, as follows:
2.1. ORGANIZATION, QUALIFICATION AND CORPORATE POWER.
(a) The Company is a duly organized and validly existing corporation
under the laws of Japan and has all requisite corporate power and authority for
the ownership and operation of its properties and for the carrying on of its
business as now conducted and as now proposed to be conducted. The Company is
duly qualified and is in good standing as a foreign corporation or entity and
authorized to do business in all jurisdictions wherein the character of the
property owned or leased, or the nature of the activities conducted by it, makes
such qualification or authorization necessary, except where the failure to so
qualify or be so authorized would not have a material adverse effect on the
Company's assets, business, prospects, liabilities, properties, condition
(financial or otherwise) or results of operations taken as a whole (a "MATERIAL
ADVERSE EFFECT"). The Company has all requisite corporate power and corporate
authority to execute and deliver this Agreement, and to perform all its
obligations hereunder.
2.2. AUTHORIZATION; NO CONFLICT. The execution and delivery by the
Company of this Agreement and the performance by the Company of its obligations
hereunder have been duly authorized by all requisite corporate action and will
not (a) violate (i) any provision of any applicable law, or any order of any
court or other governmental agency applicable to the Company, (ii) the charter
or organizational documents of the Company, or (iii) any provision of any
mortgage, lease, indenture, agreement or other instrument to which the Company
or any of its properties or assets is bound, or (b) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument, or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company. The Purchased
Shares, when issued in compliance with the provisions of this Agreement, will be
duly authorized, validly issued, fully paid and nonassessable, and will have the
rights, preferences, privileges and restrictions as set forth in the Company's
organizational documents. The Purchased Shares will be free of any liens or
encumbrances. The issuance of the Purchased Shares is not subject to any
preemptive rights or rights of first refusal.
2.3. VALIDITY AND ENFORCEABILITY. This Agreement has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
may be limited by applicable bankruptcy,
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insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally.
2.4. FINANCIAL STATEMENTS. The financial statements of the Company
attached as Section 2.4 to the Disclosure Schedule (together the "FINANCIAL
STATEMENTS") present fairly the financial position of the Company as at the
dates thereof and its results of operations for the periods covered thereby and,
except as set forth on the Disclosure Schedule, the Financial Statements have
been prepared in all material respects in accordance with generally accepted
accounting principles as adopted and in effect within Japan ("GAAP")
consistently applied. Except as set forth in the Financial Statements or Section
2.4, (i) the Company has no material liabilities, contingent or otherwise, other
than (a) liabilities incurred in the ordinary course of business, and (b)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under GAAP to be reflected in the Financial
Statements; (ii) there has been no material adverse change in the assets,
business, liabilities, properties, prospects, condition (financial or otherwise)
or results of operations of the Company; (iii) neither the business, condition
or operations of the Company nor any of its properties or assets have been
materially or adversely affected as a result of any legislative or regulatory
change, any revocation or change in any franchise, license or right to do
business, or any other event or occurrence, whether or not insured against; and
(iv) the Company has not entered into any material transaction outside of the
ordinary course of business or made any distribution on its capital stock or
other ownership interest.
2.5. LITIGATION; COMPLIANCE WITH LAW. Except as set forth in Section
2.5 to the Disclosure Schedule, there is no (i) action, suit, claim, proceeding
or investigation pending or, to the best of the Company's knowledge, threatened
against or affecting the Company, at law or in equity, or before or by any
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign; (ii) arbitration proceeding relating to
the Company pending under collective bargaining agreements or otherwise; or
(iii) governmental inquiry pending or, to the best of the Company's knowledge,
threatened against or affecting the Company (including, without limitation, any
inquiry as to the qualification of the Company to hold or receive any license or
permit), and, to the best of the Company's knowledge, there is no reasonable
basis for any of the foregoing. The Company is not in default with respect to
any governmental order, writ, judgment, injunction or decree known to or served
upon the Company of any court or of any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign. There is no
action or suit by the Company pending or threatened against others. The Company
has complied in all respects with all laws, rules, regulations and orders
applicable to its businesses, operations, properties, assets, products and
services, and the Company has all necessary permits, licenses and other
authorizations required to conduct its business as conducted and as proposed to
be conducted, except to the extent failure to comply or obtain any such permits,
licenses or authorizations will not have a Material Adverse Effect. There is no
existing law, rule, regulation or order, and the Company is not aware of any
proposed law, rule, regulation or order, which would prohibit or materially
restrict the Company from, or otherwise materially and adversely affect the
Company in, conducting its business in any jurisdiction in which it is now
conducting business or in which it proposes to conduct business.
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2.6. PROPRIETARY INFORMATION OF THIRD PARTIES. Except as set forth in
Section 2.6 to the Disclosure Schedule, no third party has claimed or has reason
to claim that any person employed by or affiliated with the Company has (a)
violated or may be violating to any material extent any of the terms or
conditions of his employment, non-competition or non-disclosure agreement with
such third party, (b) disclosed or may be disclosing or utilized or may be
utilizing any trade secret or proprietary information or documentation of such
third party, or (c) interfered or may be interfering in the employment
relationship between such third party and any of its present or former
employees, or has requested information from the Company that suggests that such
a claim might be contemplated. To the best of the Company's knowledge, no person
employed by or affiliated with the Company has improperly utilized or proposes
to improperly utilize any trade secret or any information or documentation
proprietary to any former employer, and to the best of the Company's knowledge,
no person employed by or affiliated with the Company has violated any
confidential relationship which such person may have had with any third party,
in connection with the development, manufacture or sale of any product or
proposed product or the development or sale of any service or proposed service
of the Company, and the Company has no reason to believe there will be any such
employment or violation. To the best of the Company's knowledge, none of the
execution or delivery of this Agreement and the other related agreements and
documents executed in connection herewith, or the carrying on of the business of
the Company as officers, employees or agents by any officer, director or key
employee of the Company, or the conduct or proposed conduct of the business of
the Company, will materially conflict with or result in a material breach of the
terms, conditions or provisions of or constitute a material default under any
contract, covenant or instrument under which any such person is obligated.
2.7. TITLE TO ASSETS. Except as set forth in Section 2.7 to the
Disclosure Schedule, the Company has valid and marketable title to all of its
assets now carried on its books including those reflected in the most recent
balance sheet of the Company which forms a part of the Financial Statements, or
acquired since the date of such balance sheet (except personal property disposed
of since said date in the ordinary course of business) free of any liens charges
or encumbrances of any kind whatsoever, except such encumbrances and liens that
arise in the ordinary course of business and do not materially impair the
Company's ownership or use of such property or assets. The Company does not own
any real property. The Company is in compliance in all material respects under
all leases for property and assets under which it is operating, and all said
leases are valid and subsisting and are in full force and effect.
2.8. INTELLECTUAL PROPERTY ASSETS. Except as set forth in Section 2.8
to the Disclosure Schedule, the Company owns no patents, patent rights, patent
applications, trademarks, trademark applications, service marks, service ▇▇▇▇
applications, trade names or copyrights, or any applications for such which are
in the process of being prepared, owned by or registered in the name of the
Company, or of which the Company is a licensor or licensee or in which the
Company has any right. The Company owns or possesses adequate licenses or other
rights to use all patents, patent applications, trademarks, trademark
applications, service marks, service ▇▇▇▇ applications, trade names, copyrights,
manufacturing processes, formulae, trade secrets and know how (collectively,
"INTELLECTUAL PROPERTY") necessary or material to the conduct of its business as
conducted, without any conflict with or infringement of the rights of others,
and as
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proposed to be conducted, and, except as disclosed in Section 2.8 to the
Disclosure Schedule, no claim is pending or, to the best of the Company's
knowledge, threatened to the effect that the operations of the Company infringe
upon or conflict with the asserted rights of any other person under any
Intellectual Property, and, to the best of the Company's knowledge, there is no
basis for any such claim (whether or not pending or threatened). Except as
disclosed in Section 2.8 to the Disclosure Schedule, no claim is pending or, to
the best of the Company's knowledge, threatened to the effect that any such
Intellectual Property owned or licensed by the Company, or which the Company
otherwise has the right to use, is invalid or unenforceable by the Company, and,
to the best of the Company's knowledge, there is no basis for any such claim
(whether or not pending or threatened). To the best of the Company's knowledge,
all material technical information developed by and belonging to the Company
that has not been patented has been kept confidential. The Company has not
granted or assigned to any other person or entity any right to manufacture, have
manufactured or assemble the products or proposed products or to provide the
services or proposed services of the Company. The Company has no material
obligation to compensate any person for the use of any Intellectual Property nor
has the Company granted to any person any license or other rights to use in any
manner any Intellectual Property of the Company.
2.9. ASSUMPTIONS, GUARANTIES, ETC. OF INDEBTEDNESS OF OTHER PERSONS.
The Company has not assumed, guaranteed, endorsed or otherwise become directly
or contingently liable for any material amount of indebtedness of any other
person (including, without limitation, any liability by way of agreement,
contingent or otherwise, to purchase, to provide funds for payment, to supply
funds to or otherwise invest in the debtor, or otherwise to assure the creditor
against loss).
2.10. GOVERNMENTAL APPROVALS. Except as set forth in Section 2.10 to
the Disclosure Schedule or as otherwise contemplated by this Agreement, no
authorization, consent, approval, license, filing or registration with any court
or governmental department, commission (including the Japan Ministry of Legal
Affairs and the United States Securities and Exchange Commission), board,
bureau, agency or instrumentality, domestic or foreign, is or will be necessary
for the valid execution, delivery and performance by the Company of this
Agreement or the related agreements referenced herein, and the issuance, sale
and delivery of the Company Shares to be issued herein.
2.11. DISCLOSURE. The Company's representations and warranties in this
Agreement and in the schedules and exhibits to this Agreement, do not contain
any untrue statement of a material fact or omit a material fact necessary to
make the statements contained herein or therein, taken as a whole, not
misleading.
2.12. NO BROKERS OR FINDERS. No person has or will have, as a result of
the transactions contemplated by this Agreement, any right, interest or valid
claim against or upon the Company for any commission, fee or other compensation
as a finder or broker arising out of the transactions contemplated by this
Agreement.
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2.13. LABOR RELATIONS. To the best knowledge of the Company, there are
no collective bargaining agreements in effect covering the Company's employees
and no labor union or any representative thereof has made any attempt to
organize or represent employees of the Company.
2.14. BOOKS AND RECORDS. The books of account, ledgers, order books,
records and documents of the Company accurately reflect all material information
relating to the business of the Company that is appropriate to be reflected
therein in all material respects.
2.15. NO MATERIAL ADVERSE CHANGE. Since the respective dates as of
which information was given in this Agreement or the Disclosure Schedule, except
as otherwise stated therein: (i) there has been no material adverse change in
the financial condition, or in the results of operations, affairs or prospects
of the Company, whether or not arising in the ordinary course of business; and
(ii) there have been no transactions entered into by the Company, other than
those in the ordinary course of business, which are material to the Company.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby severally represent and warrant to the Company as
follows:
3.1. CORPORATE AUTHORIZATION. The Purchaser is an organization that is
validly existing and in good standing under the laws of its jurisdiction of
organization. This Agreement has been duly authorized by the Purchaser, duly
executed and delivered by the authorized officers of the Purchaser, and is the
valid, binding and enforceable obligation of the Purchaser.
3.2. CORPORATE CAPACITY. The Purchaser is duly authorized under all
applicable provisions of law to make and to perform this Agreement and to
acquire the Purchased Shares. This Agreement constitutes the valid and binding
obligations of the Purchaser, enforceable in accordance with their respective
terms. Neither the execution and delivery of this Agreement nor compliance with
the terms, conditions and provisions of this Agreement, conflicts with or
results in a material breach of any of the terms, conditions, or provisions of
the Purchaser's charter documents, if an organization, or any material agreement
or instrument to which the Purchaser is now a party or by which they are bound,
or constitutes a default under any of the foregoing, or results in the creation
or imposition of any lien, encumbrance or charge of any nature whatsoever upon
any of the material properties or assets of the Purchaser under the terms of any
such document, agreement or instrument, or requires the consent or approval of
any third party. The Purchaser does not know of any lawsuit, claim, arbitration,
pending or threatened, that is likely to preclude or impair the performance of
its obligations hereunder, including but not limited to the payment of the
Purchaser Cash Amount for the Purchased Shares.
3.3. INVESTMENT. The Purchaser is acquiring the Purchased Shares for
his, her or its own account, for investment purposes, and with no present view
toward, or for resale.
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4. CLOSING DATE DELIVERIES
The obligations of the parties under this Agreement are subject to the
delivery, at or before the Closing Date, of the following documents and
instruments:
4.1. COMPANY DELIVERIES.
The Purchaser shall have received at or prior to the Closing Date (i)
receipt papers documenting the Company has received the Purchase Cash Amount as
a wire transfer in the Company's designated capital holding account; (ii) copies
of all corporate proceedings taken by the Company authorizing or in connection
with the transactions contemplated by this Agreement, certified as of the date
hereof by an appropriate officer of the Company, as applicable; (iii) a copy of
the Stockholders' Agreement, duly executed by each of the other parties thereto;
and (iv) a copy of the Share Exchange Agreement, by and among the Purchaser and
▇▇. ▇▇▇▇▇, duly executed by each of the other parties thereto.
4.2. PURCHASER DELIVERIES. The Company shall have received (a) payment
of the Purchase Cash Amount, (b) copies of all corporate proceedings taken by
the Purchaser, as applicable, authorizing or in connection with the transactions
contemplated by this Agreement, certified as of the date hereof by a duly
authorized officer the Purchaser, as applicable; and (c) a copy of the
Stockholders' Agreement, duly executed by the parties thereto.
5. CONTINUING COVENANTS.
From and after the execution and delivery of this Agreement, the
parties agree as follows:
5.1. GENERAL. Each of the parties will use its best efforts to take all
action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement.
5.2. NOTICES AND CONSENTS. The parties will give any required notices
to third parties, and the parties will use their respective best efforts to
obtain any third party consents, that may reasonably be required in order to
secure any required approval of the transactions described herein. Each of the
parties will give any notices to, make any filings with, and use its best
efforts to obtain any authorizations, consents, and approvals of governments,
governmental agencies, quasi-regulatory agencies and self-regulatory
organizations that may reasonably be required in order to consummate the
transactions described herein.
5.3. FULL ACCESS. The Company will permit representatives of the
Purchaser to have full access to all premises, properties, personnel, books,
records, contracts, and documents of or pertaining to the Company.
5.4. NOTICE OF DEVELOPMENTS. Each party will give prompt written notice
to the other party of any material adverse development causing a breach of any
of its own representations and warranties in this Agreement. No disclosure by
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any party pursuant to this section, however, shall be deemed to amend or
supplement the Disclosure Schedule or to prevent or cure any misrepresentation,
breach of warranty, or breach of covenant.
6. MISCELLANEOUS
6.1. REMEDIES CUMULATIVE; REMEDIES NOT WAIVED. No remedy herein
conferred upon the Purchaser is intended to be exclusive of any other remedy and
each and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. No course of dealing between any of the parties in
exercising any rights hereunder shall operate as a waiver of any of the rights
hereunder, either individually or in the aggregate.
6.2. WAIVER AND AMENDMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective heirs, legal
representatives, successors and assigns. This Agreement sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them. This Agreement shall not be changed,
modified or amended except by a writing signed by the parties hereto.
6.3. ASSIGNABILITY. The Purchaser may assign or transfer this Agreement
or its rights hereunder upon prior written notice to the Company.
6.4. SURVIVAL OF AGREEMENTS, PARTIES IN INTEREST, ETC. All agreements,
representations and warranties made by the Company herein or in any certificate
or other document delivered to the Purchaser in connection with this Agreement,
shall survive the execution and delivery of this Agreement to the Purchaser for
a period of one (1) year. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement
or in connection with any of the transactions contemplated by this Agreement,
shall constitute representations and warranties by the Company hereunder. All of
the agreements, warranties, and representations made by the Company herein shall
be binding upon and inure to the benefit of and be enforceable by the successors
and assigns of the Purchaser whether so expressed or not.
6.5. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by registered or
certified mail (return receipt requested and postage prepaid), transmitted by
telecopier, or delivered by hand, by messenger or by a recognized overnight
delivery service, addressed as follows, or to such other address as such party
may have from time to time furnished to the other party in writing:
If to the Purchaser: IA Global, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
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If to the Company: ▇▇▇ Tokyo Co. Ltd.
▇-▇-▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
Fax: ____________________
Each such notice or other communication shall for all purposes of this Agreement
be treated as effective or having been given (i) if sent by registered or
certified mail, the earlier of receipt and five (5) business days after
dispatch, (ii) if transmitted by telecopier, on the business day of confirmed
receipt by the addressee thereof, and (iii) if delivered in person or by
overnight courier, on the business day delivered.
6.6. EXPENSES. Each party shall pay its expenses, including attorneys
fees, in connection with this Agreement and the transactions contemplated
hereby.
6.7. COUNTERPARTS. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original instrument,
but all such counterparts shall together constitute but one and the same
instrument.
6.8. HEADINGS; CONSTRUCTION. The headings of the several sections,
divisions or subsections of this Agreement shall not be construed to constitute
any part or to affect the meaning of any such sections, divisions or
subsections. The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption of burden of proof shall arise favoring
or not favoring any party by virtue of the authorship of any of the provisions
of this Agreement.
6.9. SEVERABILITY. If any provision of this Agreement or portion of any
provision, or the application thereof to any person or circumstance, shall, to
any extent, be held invalid or unenforceable, the remainder of this Agreement or
the remainder of such provision and the application thereof to other persons or
circumstances, other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by law.
6.10. GOVERNING LAW. This Agreement, all exhibits and amendments
hereto, shall be governed in all respects under the internal laws of the State
of Delaware applicable to agreements made and to be performed wholly in the
State of Delaware (excluding any such law which may direct the application of
the laws of any other jurisdiction). The parties hereby submit to the exclusive
jurisdiction of the state and federal courts of the State of Delaware and with
venue in Wilmington, Delaware for the confirmation and enforcement of any
arbitration award relating to any dispute arising from or in connection with
this Agreement, including the validity, execution, performance and enforcement
hereof, and any matter relating hereto or relating to the relationship between
the parties that was created or contemplated hereunder. The parties agree that
they will not resort to the courts or other governmental agencies of any other
jurisdiction for the resolution of any such dispute or controversy and agree to
service by mail
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and waives any requirements of personal service. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
6.11. COMPLIANCE REQUIRED. The obligations of each of the parties arising
pursuant to this Agreement shall be expressly conditioned upon the full
compliance by the other party hereto with the terms set forth herein and in the
ancillary agreements referenced herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective corporate officers thereunto duly
authorized on the day and year first above written.
COMPANY:
▇▇▇ TOKYO CO., LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President, CEO
PURCHASER:
IA GLOBAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President, CEO
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