Exchange Agreement - China Resources Development Inc. and Everbright Finace & Investment Co. Ltd.
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT ("Agreement") is made as of the 22nd
day of July, 1996, by and among CHINA RESOURCES DEVELOPMENT, INC., a Nevada
corporation (the "Issuer"), and EVERBRIGHT FINANCE & INVESTMENT CO. LTD., a
Hong Kong company (the "Holder").
W I T N E S S E T H:
WHEREAS, the Issuer has previously issued to certain
shareholders an aggregate of 6,400,000 shares of the Issuer's Series A
Preferred Stock, $1.00 par value (the "Series A Stock"), all of which shares of
Series A Stock have been acquired by Holder; and
WHEREAS, the Holder has requested that the Issuer exchange the
Series A Stock for shares of Issuer's common stock, $.001 par value (the
"Common Stock"), and the Issuer has so agreed, subject to the terms of this
Agreement.
NOW, THEREFORE, for and in consideration of the agreements
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged and confessed, the parties agree as
follows:
1. Exchange.
a. Exchange Shares. All Series A Stock shall be
exchanged for Common Stock based on an exchange rate of five shares of Common
Stock for each share of Series A Stock. In accordance therewith, no later than
August 26, 1996, provided the conditions set forth in Sub-paragraph 1.c below
are met, the Holder shall deliver to the Issuer the stock certificate
representing the 6,400,000 shares of Series A Stock held by the Holder (which
constitute all of the Issuer's authorized, issued and outstanding shares of
Series A Stock), properly endorsed for transfer, and the Issuer shall deliver
to the Holder a stock certificate representing 32,000,000 shares of Common
Stock (the "Exchange Shares") in exchange (the "Exchange") for the Holder's
6,400,000 shares of Series A Stock.
b. Waiver of Dividend and Distribution Rights;
Restriction on Public Trading. In order to induce the Issuer to effect the
Exchange, the Holder hereby waives its rights and those of its transferees, for
a period of seven years from the date of this Agreement, (i) to receive
dividends in connection with the Exchange Shares, and (ii) to receive
distributions in the event of liquidation of the Issuer. The Holder further
agrees to the placement of a legend on the certificate or certificates
representing the Exchange Shares, for a period of seven years from the date
hereof, in substantially the following form:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED PURSUANT TO AN EXCHANGE
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AGREEMENT DATED JULY 22, 1996 (THE "AGREEMENT"), BETWEEN CHINA
RESOURCES DEVELOPMENT, INC. (THE "COMPANY") AND THE HOLDER
HEREOF, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY,
AND ARE SUBJECT THE PROVISIONS OF THE AGREEMENT. IN ACCORDANCE
WITH THE AGREEMENT, THROUGH JULY 22, 2003, THE HOLDER HEREOF
HAS WAIVED ITS RIGHTS, AND THOSE OF ITS TRANSFEREES, TO RECEIVE
ANY DIVIDENDS IN CONNECTION WITH THE SHARES REPRESENTED
HEREBY OR DISTRIBUTIONS IN THE EVENT OF LIQUIDATION OF THE
COMPANY, WHICH MIGHT OTHERWISE BE PAYABLE TO HOLDERS OF THE
COMPANY'S CAPITAL STOCK.
In addition, the Holder and the Issuer agree that the Issuer, for a period of
four years from the date of this Agreement, will not include the Exchange
Shares in any registration statement filed by the Issuer and will not take any
action to facilitate the registration of the Exchange Shares. The Holder
further agrees to the placement of an additional legend on the certificate or
certificates representing the Exchange Shares, for a period of four years from
the date hereof, in substantially the following form:
THE HOLDER HEREOF UNDERSTANDS THAT THE SHARES REPRESENTED
HEREBY WILL NOT BE REGISTERED BY THE COMPANY PURSUANT TO THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS, AND THAT THESE SHARES MAY NOT BE SOLD OR TRANSFERRED
ABSENT SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
The Holder also agrees that any transfer of the Exchange Shares will be
conditioned upon the receipt by the Issuer of the transferee's written waiver
of dividend and distribution rights and acceptance of restrictions on public
trading.
c. Exchange. The Exchange shall occur as of the
date of this Agreement (the "Effective Date"), provided that the Issuer's Board
of Directors shall have received a report from an independent valuation firm
selected by the Board of Directors at the Issuer's expense, which report
indicates that the market value of the Holder's 6,400,000 shares of Series A
Stock is equivalent to or greater than the market value of the Exchange Shares.
In the event that such a report is not received by the Issuer's Board of
Directors prior to August 26, 1996, then the Exchange shall not occur, this
Agreement shall cease to be effective and the parties hereto shall have no
obligation to consummate the Exchange as set forth in Sub-paragraph 1.a above.
The parties acknowledge and agree that there are no other conditions to the
obligation of the Holder to exchange the Series A Stock for the Exchange
Shares.
2. Representations and Warranties of Issuer. Issuer
represents and warrants to the Holder as follows:
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a. Issuer. Issuer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada.
b. Authority. Issuer has all necessary
corporate power and authority to enter into and carry out this Agreement. All
corporate actions and proceedings on the part of Issuer, its directors and
shareholders necessary for the authorization, execution, delivery and
performance by Issuer of this Agreement and the transactions contemplated
hereby, including, without limitation, the authorization, issuance and delivery
of the Exchange Shares, have been lawfully and validly taken. This Agreement
is the valid and binding obligation of the Issuer, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws and principles now or
hereafter in effect relating to or affecting the enforcement of creditors'
rights in general and by general principles of equity and except that the
enforcement of the indemnity provisions of Paragraph 5 may be limited by
federal or state securities laws, other laws or the public policy underlying
any such laws.
c. Fully Paid and Non-Assessable Shares. Upon
the Exchange, the Exchange Shares will be duly authorized, validly issued,
fully paid and non-assessable, and will be free of any liens, charges,
encumbrances, restrictions on transfer or preemptive rights (except such that
arise by acts of the Holder, under federal, state or foreign securities laws or
that exist by reason of any agreement heretofore entered into between the
Holder and the Issuer) (each, a "Lien").
d. No Violation. Neither the execution,
delivery and performance by Issuer of this Agreement, the consummation of the
transactions contemplated hereby nor the issuance of the Exchange Shares will:
(i) violate any provision of Issuer's Articles of Incorporation, as amended
from time to time, or Issuer's By-Laws; (ii) violate any provision of any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority to which Issuer or any of its properties or assets is
subject, which violation could have, singly or in the aggregate, a material
adverse effect on the business, properties, condition (financial or otherwise),
results of operations or prospects of Issuer; or (iii) violate, breach,
constitute a default under, permit the termination or acceleration of, or
result in the creation of any Liens upon the Exchange Shares or any material
property of Issuer under any agreement, instrument or obligation to which
Issuer is a party or by which it or any of its properties or assets is bound,
which violation, breach, default, termination acceleration or Lien could have,
singly or in the aggregate, any material adverse effect on the business,
properties, condition (financial or otherwise), results of operations or
prospects of Issuer.
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e. No Defaults. Issuer is not in violation of:
(i) its Articles of Incorporation or By-Laws as in effect on the effective date
of this Agreement; (ii) any statute or law or any judgment, decree, order,
regulation or rule of any court or governmental authority, which violation
could have, singly or in the aggregate, a material adverse effect on the
business, properties, condition (financial or otherwise), results of operations
or prospects of Issuer; or (iii) any material agreement to which Issuer is a
party or by which any of its properties or assets is bound, which violation
could have, singly or in the aggregate, a material adverse effect on the
business, properties, condition (financial or otherwise), results of operations
or prospects of Issuer.
f. No Consents. No notice to or filing with,
and no authorization, consent or approval of, any domestic or foreign court or
any public or governmental body or authority is necessary for the consummation
by Issuer of the transactions contemplated by this Agreement or the issuance of
the Exchange Shares except: (i) as may be required under the Securities Act of
1933, as amended (the "1933 Act"), the securities or Blue Sky laws of any
jurisdiction or the corporate laws of the State of Nevada (including the
Filing), (ii) notices or filings of which the failure to give or make, or
authorizations, consents and approvals of which the failure to obtain, is based
on information given to Issuer by the Holder with respect to the Holder or its
business, operations or ownership; and (iii) notices or filings of which the
failure to give or make, and authorizations, consents and approvals of which
the failure to obtain, would not individually or in the aggregate, have a
material adverse effect on the business, properties, condition (financial or
otherwise), results of operations or prospects of Issuer or adversely affect
the operations or prospects of Issuer to consummate the transactions
contemplated by this Agreement.
g. No Brokers or Finders. Issuer has retained
no finder or broker in connection transactions contemplated by this Agreement
and hereby agrees to indemnify and hold the Holder harmless from any liability
for any commission or compensation in the nature of an agent's fee to any
broker or other individual or entity (and the costs and expenses of defending
against such liability or asserted liability) arising from any act by Issuer or
any of its agents.
3. Representations and Warranties of Holder. The Holder
hereby represents and warrants to Issuer as follows:
a. Holder. The Holder is a company duly
organized, validly existing and in good standing under the laws of the
jurisdiction set forth in the preamble to this Agreement.
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b. Authority. The Holder has all necessary
power and authority to enter into and carry out this Agreement. This Agreement
is the valid and binding obligation of the Holder, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws and principles now or
hereafter in effect relating to or affecting the enforcement of creditors'
rights in general and by general principles of equity and except that the
enforcement of the indemnity provisions of Paragraph 5 may be limited by
federal or state securities laws, other laws or the public policy underlying
any of such laws.
c. No Violation. Neither the execution,
delivery and performance by the Holder of this Agreement nor the consummation
of the transactions contemplated hereby, will: (i) violate any provision of any
statute or law or any judgment, decree, order, regulation or rule of any court
or governmental authority to which the Holder or any of its properties or
assets is subject, which violation could have, singly or in the aggregate, a
material adverse effect on the Holder or its ability to perform its obligations
under this Agreement; or (ii) violate, breach, constitute a default under,
permit the termination or acceleration of, or result in the creation of any
Lien upon any material property of the Holder under any agreement, instrument
or obligation to which the Holder is a party or by which the Holder or any of
its properties or assets is bound, which violation, breach, default,
termination, acceleration or Lien could have, singly or in the aggregate, a
material adverse effect on the Holder its ability to perform its obligations
under this Agreement.
d. No Consents. No notice to or filing with,
and no authorization, consent or approval of, any domestic or foreign court or
any public or governmental body or authority is necessary for the consummation
by the Holder of the transactions contemplated by this Agreement or the receipt
of the Exchange Shares except: (i) as may be required under the 1933 Act, the
securities or Blue Sky laws of any jurisdiction or the corporate laws of the
State of Nevada; (ii) notices or filings of which the failure to give or make,
or authorizations, consents and approvals of which the failure to obtain, is
based on information given to the Holder by Issuer with respect to Issuer or
Issuer's business, operations or ownership; and (iii) notices or filings of
which the failure to give or make, and authorizations, consents and approvals
of which the failure to obtain, would not individually or in the aggregate,
have a material adverse effect on the Holder or adversely affect Holder's
ability to consummate the transactions contemplated by this Agreement.
e. Investment Intent. The Holder is acquiring
the Exchange Shares solely for the Holder's own account and not with a view to,
or for resale in connection with, any distribution thereof. The Holder
understands that the Exchange Shares have not
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been registered under the 1933 Act by reason of specified exemptions therefrom
which depend upon, among other things, the bona fide nature of the Holder's
investment intent as expressed in this Subparagraph (e).
f. Restricted Securities. The Holder
understands that the Exchange Shares may not be sold, transferred or otherwise
disposed of without registration and/or qualification under the 1933 Act and
any applicable state securities laws or Blue Sky Laws, or an exemption
therefrom, and that in the absence of appropriate registration and/or
qualification, or exemption therefrom, the Exchange Shares must be held
indefinitely. The Holder further understands that the Issuer will take no
action to effect or facilitate such registration and/or qualification for at
least four years from the date of this Agreement. The Holder will not sell,
transfer or otherwise dispose of the Exchange Shares except pursuant to
appropriate registration and/or qualification or an appropriate exemption
therefrom. Further, the Holder understands that the Issuer will require, as a
condition to any transfer of the Exchange Shares, that any transferee of the
Exchange Shares enter into an agreement by which such transferee will waive its
dividends rights and rights to distributions upon liquidation of the Issuer in
substantially the manner set forth in Paragraph 1.b. The Holder agrees to the
placement of a legend on the certificate or certificates representing the
Exchange Shares setting forth the foregoing restrictions, in addition the
legend set forth in Paragraph 1.b.
g. Experience. The Holder has such knowledge
and experience in financial and business matters and in making investments of
this type that it is capable of evaluating the merits and risks of acquiring
the Exchange Shares.
h. Receipt of Information. The Holder has been
furnished access to Issuer's business records relating to the Exchange Shares,
and such additional information and documents as the Holder has requested, and
has been afforded an opportunity to ask questions of and receive answers from
representatives of Issuer concerning the terms and conditions of this Agreement
and the acquisition of the Exchange Shares.
i. Accredited Investor. The Holder is an
"accredited investor," as such term is defined in Rule 501(a) promulgated by
the Securities and Exchange Commission under the 1933 Act.
j. No Dividends or Distributions. The Holder
understands that the Exchange Shares are shares of Common Stock, except that,
by virtue of the Holder's waiver of dividend and distribution rights in
Paragraph 1.b and for the period set froth in such paragraph, the Exchange
Shares do not entitle the Holder to receive dividends as may be declared by the
Board of Directors of
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the Issuer from time to time or to receive distributions in the event of
liquidation of the Issuer.
k. No Brokers or Finders. The Holder has
retained no finder or broker in connection with the transactions contemplated
by this Agreement and hereby agrees to indemnify and hold Issuer harmless from
any liability for any commission or compensation in the nature of an agent's
fee to any broker or other individual or entity (and the costs and expenses of
defending against such liability or asserted liability) arising from any act by
the Holder or any of its agents.
4. Survival of Representations and Warranties. All
representations and warranties set forth in this Agreement shall survive the
execution and delivery of this Agreement, and the consummation of the
transactions contemplated by this Agreement, for the period of any applicable
statutes of limitations.
5. Indemnification. Each party agrees to indemnify,
defend and hold harmless the other party from any claim, demand, loss,
liability, damage or expense, including, without limitation, interest,
penalties and reasonable attorneys' fees and costs of investigation, incurred
as a result of any material inaccuracy, misrepresentation or breach of any
representation, warranty, covenant or agreement on the part of such party under
or pursuant to this Agreement and the Exhibits and Schedules hereto, if any.
6. General Provisions.
a. Notices. All notices, requests, demands and
other communications which are required or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if transmitted
by facsimile with receipt acknowledged, or upon delivery, if delivered
personally or by a recognized commercial courier with receipt acknowledged, or
upon the expiration of 72 hours after mailing, if mailed by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to Issuer: CHINA RESOURCES DEVELOPMENT, INC.
Room 2005, 20th Floor
Universal Trade Center
3-5A Arbuthnot Road
Central, Hong Kong
Attn: Mr. Li Shunxing, President
Telephone No.: (852) 2810-6226
Facsimile No.: (852) 2810-6963
With a copy to: BAKER & HOSTETLER
Post Office Box 112
Orlando, FL 32802-0112
Attn: Kenneth C. Wright
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Telephone No.: (407) 649-4000
Facsimile No.: (407) 841-0168
If to Holder: EVERBRIGHT FINANCE &
INVESTMENT CO. LIMITED
23/F., Office Tower
Convention Plaza
1 Harbour Road
Wanchai, Hong Kong
Attn: Mr. I.P. Zhang, Director
Telephone No.: (852) 2537-6689
Facsimile No.: (852) 2526-9912
Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
b. Entire Agreement. This Agreement (including
the Schedules and Exhibits, if any, to this Agreement) constitutes the entire
agreement between the parties with respect to its subject matter and no party
shall be entitled to benefits other than those specified herein, and all prior
agreements, statements, representations and warranties with respect to the
subject matter of this Agreement are superseded by this Agreement.
c. Amendments and Waivers. Neither this
Agreement, nor any of its provisions, may be amended or modified in any way,
except by express written agreement of the parties hereto. Neither any
obligation of a party to this Agreement, nor any breach or default by a party
under this Agreement, may be changed, waived, discharged or terminated except
by a statement in writing signed by the party against which the enforcement of
such change, waiver, discharge or termination is sought. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. Notwithstanding the
foregoing, the Holder shall have no power to revoke, and the Issuer shall have
no power to allow the revocation of, the Holder's waiver of dividend and
distribution rights and the restrictions on public trading set forth in
Paragraph 1.b.
d. Successors and Assigns. This Agreement shall
be binding upon, and inure to the benefit of, the parties and their respective
successors, heirs, executors, administrators, legal representatives and
assigns.
e. Severability. If any provision of this
Agreement shall be construed as invalid, illegal or unenforceable for any
reason and in any respect, and if the extent of such invalidity, illegality or
unenforceability does not destroy the basis of the bargain herein, the
validity, legality and
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enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and the remainder of this Agreement shall remain in full
force and effect, enforceable in accordance with its terms as if such
provisions had not been included, or had been modified as provided below, as
the case may be. To carry out the intent of the parties hereto as fully as
possible, the invalid, illegal or unenforceable provision(s) , if possible,
shall be deemed modified to the extent necessary and possible to render such
provision(s) valid and enforceable.
f. Headings. The captions and headings to the
Paragraphs and Subparagraphs of this Agreement are inserted for purposes of
convenience only, are not part of this Agreement and shall be given no force or
effect in construing or interpreting the meaning of this Agreement or any of
its provisions.
g. Counterparts. This Agreement shall be in
writing and may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and
the same instrument.
h. Expenses. Issuer and the Holder shall each
pay its own expenses with respect to this Agreement and the transactions
contemplated hereby; provided that Issuer shall pay any stamp or other taxes
(excluding income taxes) which may be payable upon the issuance of the Exchange
Shares.
i. Governing Law and Venue. This Agreement
shall be governed by and construed, interpreted and enforced in accordance with
the law of the State of Florida without reference to the conflict of laws
principles thereof. The courts of Florida in the Ninth Judicial Circuit, and
the United States District Court for the Middle District of Florida (Orlando
Division), shall be the exclusive courts of jurisdiction and venue for any
litigation, special proceeding or other proceeding as between the parties that
may be brought, or arise out of, in connection with, or by reason of this
Agreement. The Holder hereby consents to the jurisdiction of such courts.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their duly authorized signatories, effective as the date first
set forth above.
"Issuer"
CHINA RESOURCES DEVELOPMENT, INC.,
a Nevada corporation
By: /s/ Li Shunxing
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Li Shunxing, President
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"Holder"
EVERBRIGHT FINANCE & INVESTMENT CO.
LIMITED, a Hong Kong company
By: /s/ Zhang Yibing
--------------------------------
Zhang Yibing, Director and
Authorized Signatory
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