THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this 13th day of February, 2004, by and between Wilmington
Xxxxxxx, Inc., a Delaware corporation (hereinafter, called "ISSUER") and China
Merchant DiChain Investment Holdings Limited (hereinafter called "DIHL"), a
limited company incorporated in Hong Kong.
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
------------------------
Agreement, the ISSUER agrees to issue to the shareholders of DIHL as set
forth on Exhibit A to this agreement, 45,000,000 new post (20 old for 1
new) reverse split shares of common stock of the ISSUER, $0.0001 par value
(hereinafter, called the "SHARES"), such that the DIHL shareholders as a
group shall become the shareholders holding not less that [97.49%] of the
then enlarged issued share capital of the ISSUER in exchange for 100%
ownership in a company approved by the Wilmington Xxxxxxx board of
directors upon closing. Information disclosures on this company will be
attached hereto as Exhibit D at closing.
2. REPRESENTATIONS AND WARRANTIES. ISSUER represents and warrants to DIHL
---------------------------------
the following:
i Organization. ISSUER is a corporation duly organized under the laws of
-------------
Delaware and has all the necessary corporate powers to own properties and
carry on a business, and is duly qualified to do business in Delaware. All
actions taken by the incorporators, directors and shareholders of the
ISSUER have been valid and in accordance with the laws of the State of
Delaware.
ii CurrentCapital Structure. The authorized capital stock of the ISSUER is
--------------------------
20,000,000 shares of common stock, $0.0001 par value, of which 15,196,000
are issued and outstanding and 1,000,000 shares of preferred stock, $0.0001
per value, of which there are no issued and outstanding. All outstanding
shares are fully paid and non-assessable, free of liens, encumbrances,
options, restrictions, and legal or equitable rights of others not a party
to this Agreement. At closing, there will be no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating ISSUER to issue or to transfer from the treasury any
additional shares of its capital stock. None of the outstanding shares of
the ISSUER are subject to any stock restriction agreements. All of the
shareholders of the ISSUER have valid title to such shares and acquired
their shares in a lawful transaction and in accordance with the laws of the
State of Delaware.
iii. Audited Financial Statements. SEC Filings provided and new September
-------------------------------
30th, 2003 audit will be available at closing along with a recent Form 10K
filing in addition there will be a consolidated statement of the Wilmington
Xxxxxxx fiscal first quarter un-audited but reviewed financial statements
representing the Wilmington Xxxxxxx parent company and subsidiaries
financials representing the period of October 1, 2003 through December 31,
2003. This first quarter filing is due to be filed to the SEC by February
15, 2004 as part of the regular required filing process.
iv. Absence of Change. Since the date of the balance sheet, there has not
--------------------
been any change in the financial condition or operations of the ISSUER,
except changes in the ordinary course of business, which changes have not,
in the aggregate, been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or obligation of
------------
any nature, whether accrued, absolute, contingent, or otherwise, and
whether due or to become due, that is not reflected on the ISSUER'S
financial statement. ISSUER is not aware of any pending, threatened or
asserted claims, lawsuits or contingencies involving the ISSUER or its
common stock. There is no dispute of any kind between the ISSUER and any
third party, and no such dispute will exist at the closing of this
Agreement.
vi. Ability to Carry out Obligation. ISSUER has the right, power, and
-----------------------------------
authority to enter into and perform its obligations under this Agreement.
The execution and delivery of this Agreement by ISSUER and the performance
by ISSUER of its obligations hereunder will not cause, constitute, or
conflict with or result in (a) any breach or violation or the provisions
of, or constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or other agreement
or instrument to which the ISSUER or its shareholders are a party, or by
which they may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (b) any event that would cause
the ISSUER to be liable to any party, or (c) any event that would result in
the creation or imposition or any lien, charge or encumbrance on any assets
of the ISSUER or upon the securities of the ISSUER to be acquired by the
DIHL.
vii. Full Disclosure. None of the representations and warranties made by the
----------------
ISSUER, or any certificate or memorandum furnished or to be furnished by
the ISSUER, contains or will contain any untrue statement of a material
fact, or omit any material fact the omission of which would be misleading.
viii.Contracts and Leases. ISSUER is not currently carrying on any business and
----------------------
is not a party to any contract, agreement, or lease. No person holds a
power of attorney from ISSUER.
ix. Compliance with the Laws. ISSUER has complied with, and is not in
----------------------------
violation of any federal, state or local statue, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state
securities laws in connection with the issuance, sale and distribution of
its securities.
X. Litigation. ISSUER is not (and has not been) a party to any suit, action,
-----------
arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. To the best of the knowledge of the ISSUER,
there is no basis for any such action or proceeding and no such action or
proceeding is threatened against the ISSUER and ISSUER is not subject to or
in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or
instrumentality.
xi. Conduct of Business. Prior to the closing, the ISSUER shall conduct
----------------------
business in the normal course, and shall not (a) sell, pledge, or assign
any assets, (b) amend its article of incorporation or By-laws, (c) declare
dividends, redeem or sell stock or other securities, (d) incur any
liabilities, (e) acquire or dispose of any assets, enter into any contract,
guarantee obligations of any third party, or (f) enter into any other
transaction.
xii. Corporate Documents. Copies of each of the following documents, which
---------------------
are true, complete and correct in all material respects, will be attached
hereto and made an integral part hereof to this Agreement:
(1) Articles of Incorporation;
(2) By-laws;
(3) Minutes of Shareholders Meetings;
(4) Minutes of Directors Meetings;
(5) List of Officers and Directors;
(6) Form 10K annual financial information statement as described in
Section 2(iii); and
(7) Stock register and stock records of the ISSUER and a current, accurate
list of the ISSUER's shareholders.
xiii.Documents. All minutes, consents or other documents pertaining to the
----------
ISSUER to be delivered at the closing shall be valid and in accordance with
the laws of the State of Delaware.
xiv. Title. The Shares to be issued to DIHL will be, at the closing, free and
------
clear of all liens, security interests, pledges, charges, claims,
encumbrances and restrictions of any kind. None of such Shares are or will
be subject to any voting trust or agreement. No person holds or has any
right to receive any proxy or similar instrument with respect to such
shares, except as provided for in this Agreement, the ISSUER is not a party
to any agreement which offers or grants to any person the right to purchase
or acquire any of the securities to be issued to the DIHL. 'Mere is no
applicable local, state or federal law, rule or regulation, or decree which
would, as a result of the issuance of the Shares to DIHL, impair, restrict,
or delay DIHL' voting rights with respect to the Shares.
3. DIHL REPRESENTand warrant to theISSUER the following:
-----------------------------------------------------------
i. Organization. DIHL is a holding company based in Hong Kong. All actions
-------------
taken by DIHL, the owners and shareholders of the DIHL have been valid and
in accordance with all laws.
ii. Shareholders and Issued Stock. In addition to the shareholdings so
---------------------------------
listed, DIHL has commitments to issue additional shares for this
transaction: (All shares issued by DIHL to outside parties will be
inclusive in the 45,000,000 share issuance and at no time until the initial
transaction is complete shall there be any more shares issued)
iii. Counsel. DIHL represent and warrant prior to the Closing, that they are
--------
represented by independent counsel or have had the opportunity to retain
independent counsel to represent them in this transaction.
4. INVESTMENT INTENT. DIHL agrees that the Shares being issued pursuant to
-------------------
this Agreement may be sold, pledged, assigned, hypothecated or otherwise
transferred, with or without consideration (hereinafter called a
"TRANSFER"), only pursuant to an effective registration statement under the
1933 ACT, or pursuant to an exemption from registration under the 1933 ACT,
the availability of which is to be established to the satisfaction of the
ISSUER.
5. CLOSING. Theclosing of this transaction shall take place at the offices of
--------
eAngels Equity, LLC 0000 Xxxx Xxxxxxx, #000, Xxxxxxxxx, XX. 00000, upon
receipt or exchange, as the case may be of the items referenced in Section
6, below. Closing date will be set for the latest, Friday February 20, 2004
at 5PM West Coast Time. If closing does not occur by 5PM West Coast Time,
February 27th, 2004 then this agreement will become null and void and
Wilmington Xxxxxxx will be able to move on with its business.
6. DOCUMENTATION TO BE DELIVERED AT CLOSING.
----------------------------------------------
i. By theISSUER
-------------
(1) Board of Directors Minutes and Shareholders resolution authorizing the
adoption of the complete Wilmington Xxxxxxx Reorganization and
Acquisition Plan, which will begin immediately after closing and
proceed on the schedule to be attached as Exhibit C hereto. A summary
of the main points of the Plan are as follows:
i) Spin-out and dividend distribution of E-Trend Networks, Inc. the
Wilmington Xxxxxxx subsidiary on a 1 for 1 ownership basis of
WREX current shares.
ii) Reverse Stock Split 20 old WREX shares for 1 new DiChain share
iii) Name change to China Merchants DiChain Investment Holdings
Limited
iv) Issuance of 45,000,000 new shares for the acquisition of DIHL
v) Issuance of 400,000 new S8 shares to FutureVest Corporation for
consulting services.
This plan of Re-Organization will require a series of events to occur which
include numerous disclosures to the SEC, NASD and shareholders of record. The
events are listed by order in the attached Exhibit C to this agreement.
After the Re-Organization is complete the new China Merchants DiChain Investment
Holdings Limited will have a beginning stock and ownership structure as follows:
Stockholder After Reverse % owned
---------------------------- ------------- -------
eAngels EquiDebt Partners V 500,000 1.08%
VHQ Option 100,000 0.22%
Xxxx Hallitex Corp 25,000 0.05%
FutureVest Corporation 20,000 0.04%
Public Shareholders Float 114,800 0.25% Old Shareholders Shares:
2.51%
New S8 Stock Issued (FutureVest) 400,000 0.87%
New Shares issued for Dichain 40,000,000 86.66% DiChain Shares:
97.49%
New Shares issued for Dichain 5,000,000 10.83%
-------------
Total Stock in Company 46,159,800 100.00%
=============
(2) Delivery of the share proxy voting power for 10,000,000 votes
approving the Wilmington Xxxxxxx Reorganization and Acquisition Plan.
DIHL can and will be in 100% control of Wilmington Xxxxxxx at closing
and will be able to take Wilmington Xxxxxxx through the necessary
steps to complete the adopted plan as approved and outlined in this
contract and stipulated in the Directors Minutes and Shareholders
resolution delivered at closing. This voting proxy will be valid for a
4 month period in order for this deal to be completed.
(3) Board of Directors approval for payment received from DIHL of $225,000
USD to satisfy all remaining debts of Wilmington Xxxxxxx, Inc., WHICH
SHALL BE PAID UPON CLOSING as follows:
i) $42,000 USD to Xxxxxxx Xxxxxx (Audit Firm)
ii) $17,000 USD to Xxxx and Xxxx for payment on final billing
iii) $5,000 USD paid to any other posted audited Wilmington Xxxxxxx
Debt as per audit and disclosed on closing date.
iv) Balance of funds up to $225,000 USD will be paid to Diamond
Worldwide, Inc., which will satisfy all monies owed on to eAngels
EquiDebt Partners V convertible debentures leaving all debts of
Wilmington Xxxxxxx at zero.
(These figures are subject to change and will be verified as to actual
amount owed on closing. There will be zero debts of Wilmington Xxxxxxx
upon closing.)
(4) The resignation of all officers and directors of ISSUER.
(5) A Board of Directors resolution appointing such person as DIHL
designate as a director(s) of ISSUER.
(6) All the business and corporate records of ISSUER, including but not
limited to, correspondence files, bank statements, checkbooks, savings
account books, minutes of shareholder and directors meetings,
financial statements, shareholder listings, stock transfer records,
agreements and contracts.
(7) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by DIHL.
ii. By DIHL:
--------
(1) Consents signed by DIHL consenting to the terms of this Agreement.
(2) Full disclosures by DIHL on the company being acquired including
audited financial statements or draft copies of audited financial
statements. This company will have to be approved prior to closing by
the board of directors of Wilmington Xxxxxxx, Inc.
7. REMEDIES.
---------
i. Arbitration. Any controversy or claim arising out of, or relating to, this
------------
Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in the State of Delaware in accordance with the
Rules of the American Arbitration Association then existing, and judgment
on the arbitration award may be entered in any court having jurisdiction
over the subject matter of the controversy.
8. MISCELLANEOUS.
--------------
i. Captions and Headings. The Article and paragraph headings throughout this
-----------------------
Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
ii. No Oral Change. The Agreement and any provision hereof, may not be
-------------
waived, changes, modified, or discharged orally, but only by agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
iii. Non Waiver. Except as otherwise expressly provided herein, no waiver of
-----------
any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against
whom such waiver is charged; and (i) the failure of any party to insist in
any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the
future of any such provisions, covenants, or conditions, (ii) the
acceptance of performance of anything required by this Agreement to be
performed with knowledge of the breach or failure of a covenant, condition
or provision hereof shall not be deemed a waiver of such breach or failure,
and (iii) no waiver by any party of one breach by another party shall be
construed as a waiver with respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of the Agreement and of each and
----------------
every provision hereof.
V. Entire Agreement. This Agreement contains the entire agreement and
------------------
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in one or
-------------
more counterparts, each of which shall be deemed as original, but all of
which together shall constitute one and the same instrument.
vii. Notices. All notices, requests, demands, and other communications under
--------
this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom the
notice is to be given, or the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly address, and by fax, as follows:
DIHL: ISSUER:
----- -------
China Merchant DiChain Wilmington Xxxxxxx, Inc.
Investment Holdings Limited
Xxxxx 000-00, Xxxx Xxxxx 3753 Xxxxxx Xxxxxx Pkwy,
Xxxx Xxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000
000-000, Xxxxxxxxx Xxxx,
Xxxxxxx Xxxx Xxxx
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 8th day of
February, 0000
XXXXX MERCHANTS DICHAIN WILMINGTON XXXXXXX, INC.
INTERNATIONAL HOLDINGS LIMITED
/s/ Xxxxxxx Xxxxxx
____________________________________ --------------------
as per Directors Xxxxxxx Xxxxxx as per
Resolution of China Merchants DiChain the Shareholders and Directors
Investment Holdings Limited Wilmington Xxxxxxx, Inc.
EXHIBIT A
SHAREHOLDERS AND OWNERS OF DIHL
China Merchants DiChain Investment Holdings Limited: _______1______ shares
Farsight Holdings Limited: _______1______ shares
_________________________: ______________ shares
_________________________: ______________ shares
Total Shares to Issue (100%) 45,000,000 shares, representing 97.49%
of the issued and outstanding stock in
the new company.
EXHIBIT B
DIHL PAYMENT AND ESCROW OF FUNDS
It is further agreed that upon signing of this agreement, DIHL will wire
transfer to an escrow account a sum of $50,000 USD which will be held until
closing. The balance of the $175,000 USD shall be wired to the escrow account
for disbursement upon closing of the transaction as per this agreement.
IN WITNESS WHEREOF, the undersigned Exhibit B has executed this Agreement this
13th day of February, 0000
XXXXX MERCHANTS DICHAIN WILMINGTON XXXXXXX, INC.
INTERNATIONAL HOLDINGS LIMITED
/s/ Xxxxxxx Xxxxxx
____________________________________ --------------------
as per Directors Xxxxxxx Xxxxxx as per
Resolution of China Merchants DiChain the Shareholders and Directors
Investment Holdings Limited Wilmington Xxxxxxx, Inc.
EXHIBIT C
TIMELINE FOR WILMINGTON XXXXXXX REORGANIZATION AND ACQUISITION PLAN
Below is an outline of dates for the filing of an information statement in
connection with a reverse stock split and name change by Wilmington Xxxxxxx,
Inc. (the "Company"). This timeline assumes that the Company closes its
transaction with China Merchants DiChain Investment Holdings Limited by
delivering a proxy covering a majority of the outstanding shares of the Company.
This timeline shows two alternatives: (a) that the transfer agent will be
notified to do a broker record search and non-objecting beneficial owner search
and (b) that no broker record search will be done.
Please note footnote 4. The mailing of the definitive information statement
assumes that the SEC will not review the information statement.
TASK SEARCH DONE NO SEARCH
--------------------------------- ----------------- -----------------
Company executes Agreement for February 13, 2004 February 13, 2004
the Exchange of Common Stock
with DIHL
--------------------------------- ----------------- -----------------
Transfer agent is advised of the February 13, 2004
record date; Transfer agent sends (1)
out broker notification.
--------------------------------- ----------------- -----------------
Company files Form 10-KSB for FYE February 13, 2004 - February 17, 2004
9/30/03 and 10-QSB for quarter
ended 12/31/03
--------------------------------- ----------------- -----------------
Company closes with DIHL; change February 17, 2004 February 17, 2004
of officers and directors
--------------------------------- ----------------- -----------------
File Form 8-K to disclose closing; February 17, 2004 February 17, 2004
change of control
--------------------------------- ----------------- -----------------
Board of Directors recommends the February 25, 2004 February 17, 2004
reverse stock split and name (2) (2)
change and sets a record date for
shareholders entitled to consent
to the reverse split and name
change.
--------------------------------- ----------------- -----------------
Company files preliminary February 25, 2004 February 17, 2004
Information Statement with (3) (3)
the SEC.
--------------------------------- ----------------- -----------------
Forms 3 due for new officers and February 27, 2004 February 27, 2004
directors
--------------------------------- ----------------- -----------------
Record date for the consent to March 5, 20042 February 26, 2004
action; transfer agent prints (2)
labels for the shareholder
mailing.
--------------------------------- ----------------- -----------------
Shareholders execute written March 5, 2004 February 26, 2004
Consent to Action
--------------------------------- ----------------- -----------------
Company mails the Information March 8, 2004 February 27, 2004
Statement to the shareholders (4) (4)
and files the definitive
Information Statement with the
SEC.
--------------------------------- ----------------- -----------------
File the Certificate of Amendment March 5, 2004 February 27, 2004
with the Delaware Secretary of
State with March 31, 2004
effective date
--------------------------------- ----------------- -----------------
Company gets new CUSIP number; March 8, 2004 March 1, 2004
notify OTC-BB of same; get new
trading symbol
--------------------------------- ----------------- -----------------
Company prints new stock March 10, 2004 March 3, 2004
certificates
--------------------------------- ----------------- -----------------
Effective Date of the Reverse March 31, 2004 March 18, 2004
Stock Split and name change (5) (5)
--------------------------------- ----------------- -----------------
Completion of share exchange with March 31, 2004 March 18, 2004
DIHL shareholders
--------------------------------- ----------------- -----------------
File Form 8-K to announce April 1, 2004 March 19, 2004
acquisition of DIHL
--------------------------------- ----------------- -----------------
DIHL shareholders and officers April 2, 2004 March 22, 2004
and directors need to file (6) (6)
FORM 4s
--------------------------------- ----------------- -----------------
Schedule 13Ds due April 10, 2004 March 29, 2004
(7) (7)
--------------------------------- ----------------- -----------------
Due date for filing DIHL audited April 17, 2004 April 17, 2004
financial statements
--------------------------------- ----------------- -----------------
IN WITNESS WHEREOF, the undersigned Exhibit C has executed this Agreement this
13th day of February, 0000
XXXXX MERCHANTS DICHAIN WILMINGTON XXXXXXX, INC.
INTERNATIONAL HOLDINGS LIMITED
/s/ Xxxxxxx Xxxxxx
____________________________________ --------------------
as per Directors Xxxxxxx Xxxxxx as per
Resolution of China Merchants DiChain the Shareholders and Directors
Investment Holdings Limited Wilmington Xxxxxxx, Inc.
___________________________________
1. Rule 14c-7(a)(3) states that the Company must give nominee holders at least
20 BUSINESS days notice of the record date.
--------
2. The Company's Bylaws state that the record date can be no more than 60 days
before the meeting date; however, Section 213 of the General Corporation
Law of the State of Delaware provides that the record date may not be more
than 10 days after the date of the resolution setting the record date for
action to be taken by written consent.
3. Rule 14c-5 requires the filing of an Information Statement at least 10 days
before the intended mailing date. The SEC notifies the Company if they will
be reviewing the Information Statement within that 10-day period.
4. This assumes that the SEC will not review the Information Statement. A
definitive copy is then filed with the SEC at the time of mailing. The
definitive Information Statement must be filed with the SEC at least 20
days prior to the earliest date on which corporate action may be taken.
5. Rule 14c-2(b) states that the effective date cannot be sooner than 20 days
after mailing the Information Statement to the shareholders.
6. Form 4 is due within 2 business days of acquisition or disposition of
stock.
7. Schedule 13D is due within 10 days of acquisition of 5% or more.
