Exhibit 2.1
AGREEMENT FOR THE EXCHANGE OF SHARES
This Agreement is made among the following parties and is dated the 4th day of
November 2004:
1. Bio-Bridge Science Corp., having its registered office at Offshore
Incorporations (Cayman) Limited Corporation of Scotia Centre 0xx Xxxxx, XX
Xxx 0000, Xxxxxx Xxxx, Xxxxx Xxxxxx (the "Cayco");
2. Bio-Bridge Science, Inc., having its registered office at Paracorp
Incorporated, 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx, 00000, Xxxx Xxxxxx,
Xxxxxxxx (the "Delco"); and
3. Those of the parties listed on the Schedule, who will be the shareholders
of record of Cayco (the "Shareholders") as at the Effective Date who agree
to the transfer of their shares in Cayco to Delco in accordance with the
terms and conditions of this Agreement (the "Selling Shareholders").
RECITALS:
X. Xxxxx is a company incorporated and existing in the Cayman Islands with an
authorised share capital of 30 million shares with a par value of US$1 of
which approximately 29,971,590 shares (the "Shares") have been issued and
are outstanding as at the date of this Agreement;
B. Delco is a company recently incorporated and existing under the laws of
the State of Delaware in the USA and has an authorized capital of
105,000,000 shares, 100,000,000 of which are designated "Common Stock,"
$0.001 par value, and 5,000,000 shares of which are designated "Preferred
Stock," $0.001 par value. As of the date of this Agreement, no shares were
issued and outstanding;
C. The Board of Directors of Cayco has determined that, for the purpose of
effecting the reorganization of Cayco in the State of Delaware, it is
advisable and in the best interests of the shareholders of Cayco that it
exchange its outstanding shares with Delco pursuant to this Agreement,
thereby becoming a wholly-owned subsidiary of Delco (the "Transaction");
D. The respective Boards of Directors of Delco and Cayco have approved this
Agreement and have directed that this Agreement be submitted to a vote of
their respective shareholders and executed by the undersigned officers;
and
E. The Transaction will effect only a change in the corporate structure of
Cayco and other changes of a legal nature. The reorganization into
Delaware will not change the board members, business and management of
Cayco. Cayco's existing directors and officers will be the directors and
officers of Delco upon completion of the Transaction.
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IT IS HEREBY AGREED AS FOLLOWS: -
1. Interpretation
In this Agreement, including the Schedules the following words and expressions
have the following meanings, unless they are inconsistent with the context:
"Agreement" this agreement.
"Board" the board of Directors of the Cayco.
Any reference to a person shall be construed as a reference to any individual,
firm, company, corporation, government, state or agency of a state, or any
association or partnership (whether or not having separate legal personality) of
two or more of the foregoing.
Except where the context otherwise requires words denoting the singular include
the plural and vice versa; words denoting any one gender include all genders.
Unless the context otherwise requires, reference to a clause or sub-clause,
paragraph, sub-paragraph, recital, or a Schedule is a reference to a clause or a
sub-clause, paragraph, sub-paragraph, recital of or a Schedule as the case maybe
of or to this Agreement and the expressions "this Agreement" and "the Agreement"
as used in any of the Schedules shall mean this Agreement and any references to
"this Agreement" shall be deemed to include the Schedules to this Agreement.
Headings in this Agreement are for convenience of reference only and do not
affect the construction or interpretation of any provision.
2. Subject to the terms of this Agreement, Delco hereby makes an offer for
all unencumbered and fully paid shares in Cayco or as many of the Shares
as the Selling Shareholders tender to the Delco as being shares in Cayco
that they agree to exchange (the "Shares being Exchanged") for the issue
of an equivalent number of shares of Common Stock in Delco (the "Delco
Shares");
3. Once this Agreement has been signed by Cayco and Delco, it shall be sent
to each of the Selling Shareholders with a request for them to tender
their shares to Delco on or before the 12th day of November 2004 (the
"Tender Termination Date") by signing and returning to the Cayco a copy of
the same in the Schedule, where indicated besides their name.
4. The return to Cayco of a signed page of the Agreement by any Selling
Shareholder carrying the signature of the Selling Shareholder, will be
deemed to be (i) acceptance of the share-for-share exchange described
herein by that Selling Shareholder for all the shares held by such Selling
Shareholder, i.e., the Transaction, and Delco shall then issue to an agent
appointed herein for the Selling Shareholders, for onward transmission to
the Selling Shareholders, share certificates evidencing the issue to them
of their respective Delco Shares, and (ii) approval and ratification of
the past decision of the Board of Directors to approve and confirm the
shareholders agreement with the implementation of the 25:1 share split. As
of the Effective Date, upon the issue of the Delco Shares, the corporate
records of Delco and Cayco shall be updated to reflect their new holdings
on the registers of members.
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5. The "Effective Date" is defined as that date which is the date on which
the exchange described in this Agreement is approved by (i) 100% of the
Selling Shareholders, if by written consent hereunder, or (ii) the Selling
Shareholders holding 90% or more of the Shares of Cayco, if by proxy or
votes in person at the General Meeting.
6. The Agent shall be Trulaw Corporate Services Ltd.
7. This Agreement may be executed in counterparts.
8. This Agreement also serves as notice to the Shareholders (i) of a meeting
(the "General Meeting") of the Shareholders of Cayco to be held on the
12th day of November 2004 if the Board does not cancel the same prior to
that date by notice posted on Cayco's web site at least one (1) day prior
to the proposed date of the General Meeting. At the General Meeting (if
held) ordinary resolutions of the members present and voting shall be
passed approving the share exchange and ratifying the past decision of the
Board of Directors to approve and confirming the shareholders agreement
with the implementation of the 25:1 share split.
9. The General Meeting may not be held if all of the Shares are exchanged by
the Shareholders, but if for one reason or another some of the
Shareholders omit, by accident or design or decline, to approve the
Transaction, the General Meeting may be held with a view to obtaining
approval from others of the Shareholders who may signify their approval of
the Transaction at the General Meeting.
10. For the purposes of the General Meeting, each of the Selling Shareholders
shall be deemed hereby to have appointed Xx. Xxxxx Qiao as his/her or its
proxy to attend at the General Meeting and to vote in favour of any
resolution put to the Shareholders for the approval of the Transaction and
the 25:1 share split, and any other matter properly presented at the
meeting by Cayco's Board.
11. To be eligible for the Transaction, the Shares must not be encumbered in
any way and the Selling Shareholders hereby confirm that there are no
encumbrances attaching to the shares they hold in Cayco.
12. Likewise, Delco hereby confirms that the Delco Shares to be issued to them
shall not be encumbered in any way and shall be issued fully paid.
13. Delco shall not be obliged to complete the Transaction by issuing the
Delco Shares unless a sufficient number of the Shares are acquired by
Delco as a result of this Agreement pursuant to approval by (i) 100% of
the Selling Shareholders, if by written consent hereunder, or (ii) the
Selling Shareholders holding 90% or more of the Shares of Cayco, if by
proxy or votes in person at the General Meeting. For the purposes of this
clause, Delco shall be the sole arbiter of the minimum number of the
Shares it deems to be sufficient subject to the approval requirements of
section 5 above, but Delco must make that determination within 7 days of
the General Meeting and it must have issued the Delco Shares prior to that
date to the Agent failing which this Agreement shall terminate and all
share acquisitions contemplated hereby shall be unwound without any
liability to cost, expense or damages from one party hereto to the other.
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14. The Shareholders and Cayco hereby warrant that there are no (or if there
are any they are hereby waived with respect to their holding of the
Shares) pre-emption rights in relation to any of the Shares under the
Articles of Association of Cayco or otherwise.
15. For the avoidance of doubt, no share transfer form shall need to be
completed by a Selling Shareholder with respect to its shareholding in
Cayco, but any share certificates held must be returned to Cayco by the
Selling Shareholders failing which Delco Shares will not be issued to the
Agent in respect of those of the Shares until an appropriate affidavit of
loss has been received by Cayco and accepted by its Board.
16. The Selling Shareholders are each responsible for making their own
enquiries into the business of Delco and by signing below they will each
have made a warranty to the other parties to this Agreement that they have
done so or have waived their rights to raise any issues in respect
thereof. Information concerning Delco can be obtained from Xx. Xxxxx Qiao
at 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 XXX.
17. GENERAL WARRANTIES AND REPRESENTATIONS
a. Each of Cayco and Delco as an inducement to the Selling Shareholders
and to the other hereby undertakes with and warrants and represents
that each of them has and will have full power and authority to
enter into and perform this Agreement;
x. Xxxxx and the Selling Shareholders warrant that the Shares
constitute the whole of the allotted and issued share capital of
Cayco and are fully paid;
x. Xxxxx and the Selling Shareholders warrant that there no encumbrance
on, over or affecting the Shares and there is no agreement or
arrangement to give or create any encumbrance and no claim has been
or will be made by any person to be entitled to any of the
foregoing;
x. Xxxxx and Delco warrant that they are each in good standing in their
respective jurisdictions of incorporation;
e. Each of the Warranties is separate and independent and without
prejudice to any other Warranty and, except where expressly stated
otherwise, no clause of this Agreement shall govern or limit the
extent or application of any other clause.
18. GENERAL
a. No announcement shall be made in respect of the subject matter of
this Agreement unless specifically agreed between the parties or it
is an announcement required by law issued after prior consultation
between the parties.
b. This Agreement shall enure to the benefit of and be binding upon the
successors and permitted assigns of the Selling Shareholders but
neither Cayco nor Delco shall be permitted to assign this Agreement.
c. All expenses incurred by or on behalf of the parties, including all
fees of agents, representatives, solicitors, accountants and
actuaries employed by any of them in connection with the
negotiation, preparation or execution of this Agreement, shall be
borne solely by the party who incurred the liability.
19. Any notice or other communication required or permitted to be given or
made hereunder shall be in writing and shall be delivered by hand or by
prepaid courier postage or by facsimile transmission addressed as
follows (or to such other address duly notified by the relevant party
in accordance with the terms hereof):-
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(i) if to Delco, to:
c/o Xxxxxxx Xxxxxxx, Esq.
Xxxxxxxxxx & Xxxxx LLP
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
U.S.A.
Facsimile: 000-000-0000
(ii) if to Cayco
c/o Xxxxx Narborough, Director
Xxxxxx Xxxxxx & Company, Attorneys-at-Law, Cayman Islands
(a company recognised under the Legal Practitioners Law)
Xxxxxxxx Xxxxxx Xxxxxxxx,
X.X. Xxx 000 GT, Grand Cayman, Cayman Islands, B.W.I.
Facsimile: 000-000-0000
(iii) if to the Selling Shareholders, to their address on file from
time to time with Cayco
Notices given in accordance with the above provisions shall be deemed to
be given or made:
(i) if delivered by hand - at the time of delivery;
(ii) if sent by pre-paid courier postage - forty eight hours after
the same shall have been dispatched provided written proof of
dispatch is retained by the sender;
(iii) if sent by facsimile, sender upon cessation of transmission
provided a fax confirmation sheet is retained by the sender.
19. A waiver by any party of any breach of the terms, provisions or conditions
of this Agreement or the acquiescence of a party hereto in any act
(whether of commission or omission) which but for such acquiescence would
be a breach of aforesaid shall not, unless it states to the contrary,
constitute a general waiver of such term, provision or contribution or of
any subsequent act contrary thereto.
20. This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which when
executed and delivered shall constitute an original, all such counterparts
together constituting but one and the same instrument.
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21. At the reasonable request of any party hereto any other party shall (and
shall procure that any other necessary parties shall) execute and do all
such documented acts and things as may reasonably be required subsequent
to the completion of the Transaction in order to perfect the right, title
and interest of the Selling Shareholders to and in the Delco Shares and in
order to perfect the right, title and interest of Delco to and in the
Cayco Shares.
[Signatures on Next Page]
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IN WITNESS WHEREOF this Agreement has been duly executed on the date shown at
the beginning of this Agreement.
* Signed by /s/ Xxxxx Xxxx
---------------------
Authorised signatory of Cayco
* Signed by /s/ Xxxxx Xxxx
---------------------
Authorised signatory of Delco
* Signed below in the Schedule by each of the Selling Shareholders
THE SCHEDULE
NOTE:
1. The following are the shareholders of record of Cayco as at the date
listed in this Agreement and they each shall be deemed to have approved
this Agreement and the transfer of their shares in Cayco to Delco in
automatic exchange for the equivalent number of shares in Delco by signing
their names below, thereby becoming "Selling Shareholders", as that term
is defined in the Agreement.
2. Further, each of the Selling Shareholders do hereby appoint as their proxy
Xx. Xxxxx Qiao to represent them as their PROXY and on their behalf to
vote for the approval of the Transaction at the General Meeting (if held)
on the date and in the circumstances described in the Agreement.
3. Subject to the terms of this Agreement, should any shareholder NOT sign
below before the General Meeting, their approval to the transfer of their
shares may be sought at the General Meeting (if held), BUT whether or not
their approval is obtained and whether or not a resolution for the
transfer of their shares shall be approved at the General Meeting, all
shares approved for sale below shall be automatically transferred to Delco
in exchange for the issue of an equivalent number of shares in Delco
immediately on the date specified herein as the date for each sale, which
shall be the date of this Agreement if no date is specified alongside a
shareholder's signature below.
4. Each of the Selling Shareholders represents and warrants, severally and
not jointly, to Delco, that, as of the date hereof and as of the Effective
Date:
a. such Selling Shareholder (other than the Chief Executive Officer of
Cayco) resides outside the United States, and is not a U.S. Person
as defined in Regulation S under the Securities Act of 1933, as
amended (the "Securities Act") (definition attached) and is not
acquiring for the account or benefit of a U.S. Person;
b. with respect to the Chief Executive Officer of Cayco, such Selling
Shareholder is an accredited investor as defined in Regulation D of
the Securities Act (definition attached), and/or has such knowledge
and experience in financial and business matters, either alone or
with such Selling Shareholder's representative(s), that he or she is
capable of evaluating the merits and risks of his investment in the
Delco Shares;
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c. such Selling Shareholder understands and acknowledges that the Delco
Shares have not been registered under the Securities Act, or any
other applicable securities laws, and the Delco Shares may not be
offered, sold or otherwise transferred except in compliance with the
registration requirements of the Securities Act and any other
applicable securities law or pursuant to an exemption therefrom;
d. the Delco Shares to be acquired hereunder by such Selling
Shareholder will be acquired for investment for such Selling
Shareholder's own account, not as a nominee or agent, and not with a
view to the resale or distribution thereof;
e. such Selling Shareholder is sufficiently aware of Cayco's and
Delco's business affairs and financial condition to reach an
informed and knowledgeable decision to acquire the Delco Shares.
Such Selling Shareholder has received all information it deems
appropriate for assessing the risk of an investment in the Delco
Shares;
f. such Selling Shareholder understands that any taxes due as a result
of an exchange of Cayco Shares for Delco Shares will be his or her
sole responsibility payable only by such Selling Shareholder, and
that Delco need not and will not reimburse such Selling Shareholder
for that tax liability;
g. the address of such Selling Shareholder's principal residence is set
forth on the signature page below; and
h. such Selling Shareholder acknowledges that Delco and others will
rely upon the truth and accuracy of the foregoing representations,
warranties and agreements and agrees that, if any of the
representations, warranties and agreements made by Selling
Shareholder are no longer accurate, it shall promptly notify Delco.
i. such Selling Shareholder has reviewed with its own tax advisors the
tax consequences of the exchange of Cayco Shares for Delco Shares.
It relies solely on such advisors and not on any statements or
representations of Delco or any of its agents with respect to such
tax consequences.
[Signatures of Selling Shareholders on Next Page]
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Name of Selling Shareholder (1):___________________________________________
Address of Selling Shareholder(2):______________________________
Number of shares:__________________________
Date of transfer of shares: __________________________________________
Signature of Selling Shareholder: ____________________________________
By:_____________________________________
Print Name:_____________________________
(1) Name of Selling Shareholder as it will appear on the stock certificate.
(2) Permanent legal residence and domicile.
[SIGNATURE PAGE OF SELLING SHAREHOLDERS TO
AGREEMENT FOR THE EXCHANGE OF SHARES]
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DEFINITIONS
Accredited Investor: means the Selling Shareholder's individual Net Worth or
combined Net Worth with his or her spouse exceeds
US$1,000,000; or the Selling Shareholder's individual
income, exclusive of any income attributable to his or her
spouse, was in excess of US$200,000 for the two most
recent calendar years preceding the calendar year of this
Agreement, and the Selling Shareholder reasonably expects
an income, exclusive of any income attributable to his or
her spouse, in excess of $200,000 in the current calendar
year; or the Selling Shareholder's combined income with
his or her spouse was in excess of US$300,000 for the two
most recent calendar years preceding the calendar year of
this Agreement and the Selling Shareholder and his or her
spouse reasonably expect a combined income in excess of
US$300,000 in the current calendar year.
Net Worth: means the excess of total value (including principal
residence, home furnishings and automobiles at fair market
value) over total liabilities. In computing net worth, the
fair market value of the principal residence of the
Selling Shareholder shall be valued at cost, including
cost of improvements, or at recently appraised value by an
institutional lender making a secured loan, net of
encumbrances.
U.S. Person: means any natural person resident in the United States;
any estate of which any executor or administrator is a
U.S. person; any trust of which any trustee is a U.S.
person; any agency or branch of a foreign entity located
in the United States; any non-discretionary account or
similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a
U.S. person; any discretionary account or similar account
(other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated, or (if an individual)
resident in the United States; any partnership or
corporation organized or incorporated under the laws of
the United States; and any partnership or corporation if
organized or incorporated under the laws of any foreign
jurisdiction and formed by a U.S. person principally for
the purpose of investing in securities not registered
under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as
defined above) who are not natural persons, estates or
trusts.
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