AGREEMENT FOR SHARE EXCHANGE
AGREEMENT FOR SHARE EXCHANGE
THIS AGREEMENT FOR SHARE EXCHANGE (this “Agreement”) is dated as of February 7, 2005, by and among DERBY RESOURCES, INC., a Nevada corporation (“DERBY”), MEDIA CHALLENGE HOLDINGS LIMITED, a British Virgin Islands corporation (“MEDIA”), and the Shareholders of MEDIA listed in Exhibit A who execute this Agreement (collectively the “SHAREHOLDERS”).
RECITALS:
DERBY and MEDIA desire to complete a share exchange transaction pursuant to which DERBY shall acquire all of the issued and outstanding common stock of MEDIA solely in exchange for the issuance of shares of voting stock of DERBY; and
THE Board of Directors of DERBY and the Board of Directors of MEDIA have each approved the proposed transaction, contingent upon satisfaction prior to closing of all of the terms and conditions of this Agreement and approval of the shareholders of DERBY; and
THE SHAREHOLDERS are the owners of all of the issued and outstanding common stock of MEDIA; and
THE PARTIES desire to make certain representations, warranties and agreements in connection with completion of the proposed share exchange transaction.
NOW, THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral part of this Agreement, and the covenants, conditions, representations and warranties hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
THE EXCHANGE
1.1
The Exchange. At the Closing (as hereinafter defined), DERBY shall acquire all of the issued and outstanding common stock of MEDIA from the SHAREHOLDERS. Consideration to be issued by DERBY shall be a total of 16,321,800 shares of its common stock (the “Exchange Shares”) in exchange for 121,000 shares of MEDIA, representing 100% of the issued and outstanding common stock of MEDIA. (The Exchange Ratio shall be approximately 134:1(i.e., 134 shares of DERBY common stock for each 1 share of MEDIA common stock exchanged). The Exchange shall take place upon the terms and conditions provided for in this Agreement and in accordance with applicable law. Immediately following completion of the share exchange transaction through issuance of the Exchange Shares and completion of the additional share transactions described in Section 4.5 hereof, DERBY shall have a total of approximately 18,547,500 shares of its common stock issued and outstanding. For Federal income tax purposes, it is intended that the Exchange shall constitute a
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tax-free reorganization within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “Code”).
1.2
Closing and Effective Time. Subject to the provisions of this Agreement, the parties shall hold a closing (the "Closing") on (i) the first business day on which the last of the conditions set forth in Article V to be fulfilled prior to the Closing is fulfilled or waived or (ii) such other date as the parties hereto may agree (the "Closing Date"), at such time and place as the parties hereto may agree. Such date shall be the date of Exchange (the "Effective Time").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1
Representations and Warranties of DERBY. DERBY represents and warrants to MEDIA as follows:
(a)
Organization, Standing and Power. DERBY is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, has been registered with the Securities and Exchange Commission and is in the process of applying for its shares to be quoted on the OTC Bulletin Board of United States of America, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary
(b)
Capital Structure. As of the date of execution of this Agreement, the authorized capital stock of DERBY consists of 50,000,000 shares of Common Stock with a par value of USD $0.001 per share, of which 1,149,700 shares are currently issued and outstanding. The Exchange Shares to be issued pursuant to this Agreement shall be, when issued pursuant to the terms of the resolution of the Board of Directors of DERBY approving such issuance, validly issued, fully paid and nonassessable and not subject to preemptive rights. DERBY has no other options, warrants, calls, agreements or other rights to purchase or otherwise acquire from DERBY at any time, or upon the happening of any stated event, any shares of the capital stock of DERBY whether or not presently issued or outstanding.
(c)
Certificate of Incorporation, Bylaws, and Minute Books. The copies of the Articles of Incorporation and of the Bylaws of DERBY which have been delivered to MEDIA are true, correct and complete copies thereof. The minute book of DERBY, which has been made available for inspection, contains accurate minutes of all meetings and accurate consents in lieu of meetings of the Board of Directors (and any committee thereof) and of the shareholders of DERBY since the date of incorporation and accurately reflects all transactions referred to in such minutes and consents in lieu of meetings.
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(d)
Authority. DERBY has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Board of Directors of DERBY. No other corporate or shareholder proceedings on the part of DERBY are necessary to authorize the Exchange, or the other transactions contemplated hereby.
(e)
Conflict with Other Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of a material benefit under, or the creation of a lien, pledge, security interest or other encumbrance on assets (any such conflict, violation, default, right of termination, cancellation or acceleration, loss or creation, a "violation") pursuant to any provision of the Articles of Incorporation or Bylaws or any organizational document of DERBY or, result in any violation of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to DERBY which violation would have a material adverse effect on DERBY taken as a whole. Except as otherwise set forth in Chinese laws, to the knowledge of DERBY there is no consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity") is required by or with respect to DERBY in connection with the execution and delivery of this Agreement by DERBY or the consummation by DERBY of the transactions contemplated hereby.
(f)
Books and Records. DERBY has made and will make available for inspection by MEDIA upon reasonable request all the books of DERBY relating to the business of DERBY. Such books of DERBY have been maintained in the ordinary course of business. All documents furnished or caused to be furnished to MEDIA by DERBY are true and correct copies, and there are no amendments or modifications thereto except as set forth in such documents.
(g) Compliance with Laws. DERBY is and has been in compliance in all material respects with all laws, regulations, rules, orders, judgments, decrees and other requirements and policies imposed by any Governmental Entity applicable to it, its properties or the operation of its businesses.
(h) SEC Filings. DERBY filed a registration statement on Form 10-SB under the Securities Exchange Act of 1934 on December 28, 2004. In
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accordance with Section 12(g) under the 1934 Act such registration statement became effective on or about February 28, 2005. Thereafter, DERBY has filed all periodic reports required to be filed with the Securities and Exchange Commission and as of the date hereof, is current in its filing obligations.
(i) Financial Statements and Tax Returns. Copies of DERBY’s audited financial statements for the fiscal year ended December 31, 2003, its unaudited financial statements for the 3 and 9 month periods ending September 30, 2004, and of its tax return for the fiscal year 2004 will be delivered to MEDIA before the Closing.
(j) Litigation. To the knowledge of DERBY, there is no suit, action or proceeding pending, or, threatened against or affecting DERBY which is reasonably likely to have a material adverse effect on DERBY, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against DERBY having, or which, insofar as reasonably can be foreseen, in the future could have, any such effect.
(k) Tax Returns. DERBY has duly filed any tax reports and returns required to be filed by it and has fully paid all taxes and other charges claimed to be due from it by any federal, state or local taxing authorities. To the knowledge of DERBY, there are not now any pending questions relating to, or claims asserted for, taxes or assessments asserted upon DERBY.
2.2 Representations and Warranties of MEDIA. MEDIA represents and warrants to DERBY as follows:
(a) Organization, Standing and Power. MEDIA is a corporation duly organized, validly existing and in good standing under the laws of British Virgin Islands, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary.
(b) Capital Structure. The authorized capital stock of MEDIA consists of 121,000 shares of Common Stock with par value of USD$1.00 per share. As of the date of execution of this Agreement, it has a total of 121,000 shares of common stock issued and outstanding. All outstanding shares of MEDIA stock are validly issued, fully paid and nonassessable and not subject to preemptive rights or other restrictions on transfer. All of the issued and outstanding shares of MEDIA were issued in compliance with all applicable securities laws. Except as otherwise specified herein, there are no options, warrants, calls, agreements or other rights to purchase or otherwise acquire from MEDIA at any time, or upon the happening of any stated event, any shares of the capital stock of MEDIA.
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(c) Certificate of Incorporation, Bylaws and Minute Books. The copies of the Articles of Incorporation and of the other corporate documents of MEDIA which have been delivered to DERBY are true, correct and complete copies thereof. The minute books of MEDIA which have been made available for inspection contain accurate minutes of all meetings and accurate consents in lieu of meetings of the Board of Directors (and any committee thereof) and of the shareholders of MEDIA since the date of incorporation and accurately reflect all transactions referred to in such minutes and consents in lieu of meetings.
(d) Authority. MEDIA has all requisite power to enter into this Agreement and, subject to approval of the proposed transaction by the holders of 100% of its issued and outstanding shares which are entitled to vote to approve the proposed transaction, has the requisite power and authority to consummate the transactions contemplated hereby. Except as specified herein, no other corporate or shareholder proceedings on the part of MEDIA are necessary to authorize the Exchange and the other transactions contemplated hereby.
(e) Conflict with Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of any provision of the Certificate of Incorporation or Bylaws of MEDIA or of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to MEDIA or its properties or assets. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to MEDIA in connection with the execution and delivery of this Agreement by MEDIA, or the consummation by MEDIA of the transactions contemplated hereby.
(f) Financial Statements. A copy of MEDIA’s financial statements for the fiscal year ended December 31, 2004 will be delivered to DERBY before the Closing. In the event such financial statements are not audited as of the date of Closing, MEDIA will take such steps as may be necessary or appropriate to cause such statements to be audited as soon as reasonably possible, but in any event not later than 75 days after the date of Closing.
(g) Books and Records. MEDIA has made and will make available for inspection by DERBY upon reasonable request all the books of account, relating to the business of MEDIA. Such books of account of MEDIA have been maintained in the ordinary course of business. All documents furnished or caused to be furnished to DERBY by MEDIA are true and correct copies, and there are no amendments or modifications thereto except as set forth in such documents.
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(h) Compliance with Laws. MEDIA is and has been in compliance in all material respects with all laws, regulations, rules, orders, judgments, decrees and other requirements and policies imposed by any Governmental Entity applicable to it, its properties or the operation of its businesses.
(i) Liabilities and Obligations. MEDIA has no material liabilities or obligations (absolute, accrued, contingent or otherwise) except (i) liabilities that are reflected and reserved against on the MEDIA’s financial statements that have not been paid or discharged since the date thereof and (ii) liabilities incurred since the date of such financial statements in the ordinary course of business consistent with past practice and in accordance with this Agreement.
(j) Litigation. There is no suit, action or proceeding pending, or, to the knowledge of MEDIA threatened against or affecting MEDIA, which is reasonably likely to have a material adverse effect on MEDIA, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against MEDIA having, or which, insofar as reasonably can be foreseen, in the future could have, any such effect.
(k) Taxes. MEDIA has filed or will file within the time prescribed by law (including extensions of time approved by the appropriate taxing authority) all tax returns and reports required to be filed with all jurisdictions where such filing is required by law; and MEDIA has paid, or made adequate provision for the payment of all taxes, interest, penalties, assessments or deficiencies due and payable on, and with respect to such periods. MEDIA knows of (i) no other tax returns or reports which are required to be filed which have not been so filed and (ii) no unpaid assessment for additional taxes for any fiscal period or any basis therefor.
(l) Licenses, Permits; Intellectual Property. MEDIA owns or possesses in the operation of its business all material authorizations which are necessary for it to conduct its business as now conducted. Neither the execution/delivery of this Agreement nor the consummation of the transactions contemplated hereby will require any notice or consent under or have any material adverse effect upon any such authorizations.
(m)
Subsidiary. MEDIA is the legal and beneficial owner of all issued and outstanding shares of CNBS Shenzhen New Media Consulting Company Limited (‘New Media”), a PRC corporation which is principally engaged in the management consulting, corporate positioning, and economic data consulting services in PRC. MEDIA is the holding company of New Media.
2.3
Representations and Warranties of the SHAREHOLDERS. By execution of this Agreement, each of the SHAREHOLDERS represents and warrants to DERBY as follows:
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(a)
Shares Free and Clear. The shares of MEDIA which he or she owns are free and clear of any liens, claims, options, charges or encumbrances of any nature.
(b)
Unqualified Right to Transfer Shares. He or she has the unqualified right to sell, assign, and deliver the portion of the shares of MEDIA specified on Exhibit A and, upon consummation of the transactions contemplated by this Agreement, DERBY will acquire good and valid title to such shares, free and clear of all liens, claims, options, charges, and encumbrances of whatsoever nature.
(c)
Agreement and Transaction Duly Authorized. He or she is authorized to execute and deliver this Agreement and to consummate the share exchange transaction described herein. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation or default under any term or provision of any contract, commitment, indenture, other agreement or restriction of any kind or character to which such SHAREHOLDERS are parties or by which such SHAREHOLDERS are bound.
(d)
Investment Representations.
(i)
He or she acknowledges being informed that the common stock in DERBY being exchanged is not registered under the Securities Act of 1933 or any state securities law and will bear a restrictive legend in substantially the following format:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). PRIOR TO THE EXPIRATION OF THE ONE YEAR RESTRICTED PERIOD (AS DEFINED BY RULE 902(m) ADOPTED UNDER REGULATION S OF THE ACT), THESE SECURITIES CANNOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED BY RULE 902(o) ADOPTED UNDER REGULATION S OF THE ACT), UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT IS AVAILABLE. PRIOR TO THE EXPIRATION OF THE ONE YEAR RESTRICTED PERIOD, THE PURCHASER OF THE SECURITIES (WHO IS NOT A DISTRIBUTOR, DEALER OR SUBUNDERWRITER) MAY RESELL THE SHARES ONLY IN A TRANSACTION EFFECTIVE OUTSIDE OF THE UNITED STATES IN ACCORDANCE WITH REGULATION S AND PROVIDED
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THE PURCHASER DOES NOT SOLICIT PURCHASERS IN THE UNITED STATES OR OTHERWISE ENGAGE IN SELLING EFFORTS IN THE UNITED STATES. AFTER THE ONE YEAR RESTRICTED PERIOD EXPIRES, THE SECURITIES CAN BE SOLD IN THE UNITED STATES ONLY IF REGISTERED OR IF, IN THE OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, AN EXEMPTION FROM REGISTRATION IS AVAILABLE. FURTHERMORE, IT IS UNLAWFUL FOR THE HOLDER OF THE SECURITIES REPRESENTED HEREBY TO ENGAGE IN HEDGING TRANSACTIONS EXCEPT IN COMPLIANCE WITH THE ACT.
(ii)
He or she has examined this Agreement and has been given access to all underlying documents related to this transaction, and is satisfied that it has received such information as he or she deems necessary or appropriate as a prudent and knowledgeable investor to verify the accuracy of such information and to evaluate the merits and risks of buying common stock in DERBY. He or she has carefully evaluated its financial resources, investment condition and the risks attendant upon this investment, and acknowledges that he or she is able to bear the economic risks of this investment;
(iii)
He or she realizes that neither the Securities and Exchange Commission nor the securities regulatory body of any country or state has received, considered or passed upon the accuracy or adequacy of the information and representations made in this Agreement;
(iv)
He or she is executing this Agreement and all other documents in connection with the offer and/or purchase of common stock of DERBY as an inducement to DERBY to exchange and transfer the common stock and DERBY may rely on such documents and information contained herein to determine the qualifications of he or she to exchange common stock in DERBY;
(v)
At the time of this Agreement, he or she reviewed the economic consequences of this Agreement, was afforded access to the books and records of DERBY (including but not limited to corporate minute book and filings with the U.S. Securities and Exchange Commission), conducted an independent investigation of the business of the Company, and was fully familiar with the financial affairs of DERBY. He or she has received and reviewed DERBY’s audited financial statements as of and for the fiscal year ended December 31, 2003 and its unaudited financial statements for the 3 and 9 month periods ended September 30, 2004 (as contained in the DERBY’s SEC Reports) as well as any other documents
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or other information desired, and he or she has had the opportunity to discuss the exchange of the Shares with MEDIA and DERBY, and he or she has obtained or been given access to all information concerning DERBY, including information concerning the Closing, requested;
(vi)
He or she confirms having such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of an investment in DERBY and of making an informed investment decision; and
(vii)
He or she (a) acknowledges that the exchange of the securities of DERBY to which this declaration relates is being made in reliance upon applicable exemptions from registration under the Securities Act of 1933, and that such securities will constitute “restricted securities” as that term is defined in Rule 144 adopted under the Securities Act of 1933.
ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 Covenants of MEDIA and DERBY. During the period from the date of this Agreement and continuing until the Effective Time, MEDIA and DERBY each agree as to themselves (except as expressly contemplated or permitted by this Agreement, or to the extent that the other party shall otherwise consent in writing):
(a) Ordinary Course. Each party shall carry on its respective businesses in the usual, regular and ordinary course in substantially the same manner as heretofore conducted.
(b) Dividends; Changes in Stock. No party shall (i) declare or pay any dividends on or make other distributions in respect of any of its capital stock, or (ii) repurchase or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, any shares of its capital stock.
(c) Issuance of Securities. No party shall issue, deliver or sell, or authorize or propose the issuance, delivery or sale of, any shares of its capital stock of any class, any voting debt or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting debt or convertible securities.
(d) Governing Documents. No party shall amend or propose to amend its Articles of Incorporation or Bylaws.
(e) No Dispositions. Except for the transfer of assets in the ordinary course of business consistent with prior practice, no party shall sell, lease, encumber or otherwise dispose of, or agree to sell, lease, encumber or otherwise dispose of,
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any of its assets, which are material, individually or in the aggregate, to such party.
(f) Indebtedness. No party shall incur any indebtedness for borrowed money or guarantee any such indebtedness or issue or sell any debt securities or warrants or rights to acquire any debt securities of such party or guarantee any debt securities of others other than in each case in the ordinary course of business consistent with prior practice.
3.2 Other Actions. No party shall take any action that would or is reasonably likely to result in any of its representations and warranties set forth in this Agreement being untrue as of the date made (to the extent so limited), or in any of the conditions to the Exchange set forth in Article V not being satisfied.
ARTICLE IV
ADDITIONAL AGREEMENTS AND RELATED TRANSACTIONS
4.1 Restricted DERBY Shares. The Exchange Shares will not be registered under the Securities Act, but will be issued pursuant to applicable exemptions from such registration requirements for transactions not involving a public offering and/or for transactions which constitute “offshore transactions” as defined in Regulation S under the Securities Act of 1933. Accordingly, the Exchange Shares will constitute "restricted securities" for purposes of the Securities Act and the holders of Exchange Shares will not be able to transfer such shares except upon compliance with the registration requirements of the Securities Act or in reliance upon an available exemption therefrom. The certificates evidencing the Exchange Shares shall contain a legend to the foregoing effect and the holders of such shares shall deliver at Closing an Investment Letter acknowledging the fact that the Exchange Shares are restricted securities and agreeing to the foregoing transfer restrictions.
4.2 Access to Information. Upon reasonable notice, DERBY and MEDIA shall each afford to the officers, employees, accountants, counsel and other representatives of the other company, access to all their respective properties, books, contracts, commitments and records and, during such period, each of DERBY and MEDIA shall furnish promptly to the other (a) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its business, properties and personnel as such other party may reasonably request. Unless otherwise required by law, the parties will hold any such information which is nonpublic in confidence until such time as such information otherwise becomes publicly available through no wrongful act of either party, and in the event of termination of this Agreement for any reason each party shall promptly return all nonpublic documents obtained from any other party, and any copies made of such documents, to such other party.
4.3 Legal Conditions to Exchange. Each of DERBY and MEDIA shall take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on itself with respect to the Exchange and will promptly cooperate with and furnish
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information to each other in connection with any such requirements imposed upon any of them or upon any of their related entities or subsidiaries in connection with the Exchange. Each party shall take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other public or private third party, required to be obtained or made by DERBY or MEDIA or any of their related entities or subsidiaries in connection with the Exchange or the taking of any action contemplated thereby or by this Agreement.
4.4 Additional Share Transactions. Simultaneously with closing under the terms of this Agreement, or as soon as reasonably practicable thereafter, DERBY shall take such steps as may be necessary or appropriate to cause a total of 1,076,000 shares of its common stock to be issued to the designees of Xx. Xxxx Xxxxxxx, Xx. Xx Xxx Xxxx, and Xxx Man Han as compensation for consulting services. Such shares shall be issued pursuant to a registration statement on Form S-8 to be filed by DERBY.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Each Party's Obligation To Effect the Exchange. The respective obligations of each party to effect the Exchange shall be conditional upon the filing, occurring or obtainment of all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by any governmental entity or by any applicable law, rule, or regulation governing the transactions contemplated hereby.
5.2 Conditions to Obligations of DERBY. The obligation of DERBY to effect the Exchange is subject to the satisfaction of the following conditions on or before the Closing Date unless waived by DERBY:
(a) Representations and Warranties. The representations and warranties of MEDIA and of the SHAREHOLDERS set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, and DERBY shall have received a certificate signed on behalf of MEDIA by the President of MEDIA and a certificate signed by each of the SHAREHOLDERS to such effect.
(b) Performance of Obligations of MEDIA. MEDIA shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and DERBY shall have received a certificate signed on behalf of MEDIA by the President to such effect.
(c) Closing Documents. DERBY shall have received such certificates and other closing documents as counsel for DERBY shall reasonably request.
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(d) No Dissenting Shares. SHAREHOLDERS holding 100% of the issued and outstanding common stock of MEDIA shall have executed this Agreement and consented to completion of the share exchange transaction described herein.
(e)
Consents. MEDIA shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of DERBY, individually or in the aggregate, have a material adverse effect on MEDIA and its subsidiaries and related entities taken as a whole upon the consummation of the transactions contemplated hereby. MEDIA shall also have received the approval of its shareholders in accordance with applicable law.
(f) Due Diligence Review. DERBY shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of MEDIA and shall not have determined that any of the representations or warranties of MEDIA contained herein are, as of the date hereof or the Closing Date, inaccurate in any material respect or that MEDIA is otherwise in violation of any of the provisions of this Agreement.
(g) Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of DERBY , made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against MEDIA , the consequences of which, in the judgment of DERBY , could be materially adverse to MEDIA.
(i)
Tax Free Reorganization. As of the closing date of the Exchange: (A) the Exchange will constitute a reorganization within the meaning of Section 368(a)(l)(B) of the Internal Revenue Code of 1986, as amended; (B) no gain or loss will be recognized by, and no amount will be includable in the income of any Party as a consequence of the Exchange: (C) no gain or loss will be recognized by any Party in the Exchange.
5.3 Conditions to Obligations of MEDIA . The obligation of MEDIA to effect the Exchange is subject to the satisfaction of the following conditions unless waived by MEDIA:
(a) Representations and Warranties. The representations and warranties of DERBY set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and (except to the extent such representations speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this
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Agreement, MEDIA shall have received a certificate signed on behalf of DERBY by the President to such effect.
(b) Performance of Obligations of DERBY. DERBY shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and MEDIA shall have received a certificate signed on behalf of DERBY by the President to such effect.
(c) Closing Documents. MEDIA shall have received such certificates and other closing documents as counsel for MEDIA shall reasonably request.
(d) Consents. DERBY shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby.
(e) Due Diligence Review. MEDIA shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of DERBY and shall not have determined that any of the representations or warranties of DERBY contained herein are, as of the date hereof or the Closing Date, inaccurate in any material respect or that DERBY is otherwise in violation of any of the provisions of this Agreement.
(f) Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of MEDIA, made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against DERBY the consequences of which, in the judgment of MEDIA, could be materially adverse to DERBY.
ARTICLE VI
TERMINATION AND AMENDMENT
6.1 Termination. This Agreement may be terminated at any time prior to the Effective Time:
(a) by mutual consent of DERBY and MEDIA;
(b)
by either DERBY or MEDIA if there has been a material breach of any representation, warranty, covenant or agreement on the part of the other set forth in this Agreement which breach has not been cured within five (5) business days following receipt by the breaching party of notice of such breach, or if any permanent injunction or other order of a court or other competent authority preventing the consummation of the Exchange shall have become final and non-appealable; or
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(c)
by either DERBY or MEDIA if the Exchange shall not have been consummated before March 30, 2005.
6.2 Effect of Termination. In the event of termination of this Agreement by either MEDIA or DERBY as provided in Section 6.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party hereto. In such event, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.
6.3 Amendment. This Agreement may be amended by mutual agreement of DERBY, MEDIA and the SHAREHOLDERS, provided that in the case of DERBY and MEDIA, any such amendment must be authorized by their respective Boards of Directors, and to the extent required by law, approved by their respective shareholders. Any such amendment must be by an instrument in writing signed on behalf of each of the parties hereto.
6.4 Extension; Waiver. At any time prior to the Effective Time, the parties hereto, by action taken or authorized by their respective Board of Directors, may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party.
6.5
Reporting Requirements. MEDIA and the SHAREHOLDERS agree to file on or before Closing, or as soon thereafter as reasonably possible, any and all documents required by U.S. Securities laws, including but not limited to Schedules 13D, 13G, 13F and Form 3. Subsequent to Closing, DERBY agrees to file such information as required under Section 14(f) and Rule 14f-1, as promulgated under the Securities Exchange Act of 1934. Subsequent to Closing, DERBY will comply with applicable requirements of the Securities Exchange Act of 1934 (the “Exchange Act”), the Securities Act of 1933, (the “Securities Act”), and will seek to remain current in its filings under the Exchange Act.
6.6
Conditions to each Party’s Obligations. The obligation of each Party to consummate the Exchange contemplated by this Agreement is subject to the satisfaction, at or before the consummation of such Exchange, of each of the following conditions;
(a)
the stockholders of MEDIA shall have duly approved the Exchange in accordance with applicable law;
(b)
the stockholders of DERBY shall have duly approved the Exchange to the extent, if any, required by applicable law;
(c)
no action shall have been taken, and no statute, rule, regulation or order shall have been promulgated, enacted, entered, enforced or deemed
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applicable to the merger by any federal, state or foreign government or governmental authority or by any court, domestic or foreign, including the entry of a preliminary or permanent injunction, which would (i) make the Exchange illegal, or (ii) if the Exchange is consummated, subject any officer, director or employee of DERBY, MEDIA, or the SHAREHOLDERS to criminal penalties or to civil liability not adequately covered by insurance or enforceable indemnification arrangements maintained by the DERBY, MEDIA or the SHAREHOLDERS;
(d)
No action or proceeding before any court or governmental authority domestic or foreign, by any government or governmental authority or by any other person, domestic or foreign, shall be threatened, instituted or pending which would reasonably be expected to result in any of the consequences referred to in clauses (i) and (ii) of paragraph (c) above; and
(e)
All necessary filings have been made under the Securities Exchange Act of 1934 and shall not be subject to a stop order or any threatened stop order.
ARTICLE VII
GENERAL PROVISIONS
7.1 Survival of Representations, Warranties and Agreements. All of the representations, warranties and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Effective Time for a period of three years from the date of this Agreement.
7.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (which is confirmed) or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
(a)
If to DERBY:
c/o Mid-Continental Securities Corp
X.X. Xxx 000000
Xxxxxx, Xxxxxxx 00000-0000
(b)
If to MEDIA:
Rm 3505-06, 35/F, Edinburgh Tower
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The Landmark, 15 Queen’s Rd
Central, Hong Kong
(c)
If to the SHAREHOLDERS, at their respective addresses specified on Exhibit A.
7.3
Interpretation. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. 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. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". The phrase "made available" in this Agreement shall mean that the information referred to has been made available if requested by the party to whom such information is to be made available.
7.4 Facsimile Signatures and Counterparts. For purposes of execution of this Agreement, facsimile signatures shall be deemed to be originals. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
7.5 Entire Agreement; No Third Party Beneficiaries; Rights of Ownership. This Agreement (including the documents and the instruments referred to herein) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
7.6 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of law. Each party hereby irrevocably submits to the jurisdiction of any Nevada state court or any federal court in the State of Nevada in respect of any suit, action or proceeding arising out of or relating to this Agreement, and irrevocably accept for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts. Any controversy arising out of, connected to, or relating to any matters herein of the transactions between SHAREHOLDERS, DERBY ,or MEDIA (including for purposes of arbitration, affiliates, professional advisors, accountants, attorneys, or agents of the SHAREHOLDERS, DERBY , and/or MEDIA , on behalf of the undersigned), or this Agreement, or the breach thereof, including, but not limited to any claims of violations of British Virgin lslands law, or United States law or statute shall be settled by arbitration. In the event of such a dispute, each party to the conflict shall select an arbitrator, both of whom shall select a third arbitrator, which shall constitute the three-person arbitration board. The decision of a majority of the board of arbitrators, who shall render their decision within thirty (30) days of appointment of the final arbitrator, shall be binding upon the parties. Venue for any arbitration shall be Nevada.
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7.7 No Remedy in Certain Circumstances. Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof or thereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith or not to take any action required herein, the other party shall not be entitled to specific performance of such provision or part hereof or thereof or to any other remedy, including but not limited to money damages, for breach hereof or thereof or of any other provision of this Agreement or part hereof or thereof as a result of such holding or order.
7.8 Publicity. Except as otherwise required by law or the rules of the SEC, so long as this Agreement is in effect, no party shall issue or cause the publication of any press release or other public announcement with respect to the transactions contemplated by this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld.
7.9 Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
7.10
Tax Treatment. It is the intent of the parties that for any party subject to U.S. tax law, the share exchange transaction will be treated as a tax-free reorganization under Section 368(a) of the U.S Internal Revenue Code. Accordingly, by execution of this Agreement, each party agrees that to the extent U.S. tax laws are applicable to it, it will refrain from taking any position in connection with its tax return, or taking any other action, that would be inconsistent with qualification of the Exchange as a reorganization under Section 368(a) of the Code.
7.11
Registration Rights. For a period beginning at the Closing Dates and concluding 24 months from the Closing Date, DERBY grants to Xx. Xxxx Xxxxxxx “piggy back” registration rights. Xx. Xxxx Xxxxxxx shall be entitled to designate such DERBY shares as they each may determine to be included within any registration statement filed by DERBY and at DERBY’s sole expense, including but not limited to legal and auditing costs and fees.
7.12
Appointment of Officers and Directors. Within twenty days of the Closing Date, DERBY will cause all of its officers and directors to resign from office and to cause to be elected to the Board of Directors of DERBY those persons designated by MEDIA.
7.13
Expenses. Prior to the Closing Date, each respective Party will pay all expenses and fees of their respective legal counsel, accountants, and other agents and advisers incurred pursuant to this Agreement regardless of whether the transactions contemplated in this Agreement are consummated. On or after the Closing Date, DERBY, MEDIA or the SHAREHOLDERS shall assume all costs associated and connected with this transaction, including reporting requirements under the applicable securities laws, transfer agent fees, accounting and legal costs.
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IN WITNESS WHEREOF, this Agreement for Share Exchange has been signed by the parties set forth below as of the date set forth above.
By: /s/ Xxxxx Xxxxxxx, President | |
MEDIA CHALLENGE HOLDINGS LIMITED | |
By: /s/ President, Li Yingsheng | |
SHAREHOLDERS: | |
/s/ Li Yingsheng | |
/s/ Ding Xiaofeng
/s/ Ren Dongsheng |
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EXHIBIT A
SHAREHOLDERS OF MEDIA CHALLENGE HOLDINGS LIMITED
NAME and XXXXXXX | XXXXXX XX XXXXXX | XXXXXXXXXX |
XX XXXXXXXXX Xx 0000-00, 35/F, Edinburgh Tower The Landmark, 00 Xxxxx’x Xx Xxxxxxx, Xxxx Xxxx | 52,831 | 44% |
DING XXXXXXXX Xx 0000-00, 35/F, Edinburgh Tower The Landmark, 00 Xxxxx’x Xx Xxxxxxx, Xxxx Xxxx | 35,789 | 30% |
REN XXXXXXXXX Xx 0000-00, 35/F, Edinburgh Tower The Landmark, 00 Xxxxx’x Xx Xxxxxxx, Xxxx Xxxx | 32,380 | 27% |
TOTAL | 121,000 | 100% |
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