PLAN OF EXCHANGE
BY WHICH
XXXXXXXXXXXXX.XXX, INC.
(A FLORIDA CORPORATION)
SHALL ACQUIRE
GUANGDONG GOLDEN SAND & GREEN LAND ECOLOGY
AND ENVIRONMENT PROTECTION DEVELOPMENT CO., LTD.
(A CORPORATION ORGANIZED UNDER THE LAWS OF THE P.R. CHINA)
I. RECITALS 1
1. The Parties to this Agreement: 1
(1.1) Xxxxxxxxxxxxx.xxx, Inc. 1
(1.2) Guangdong Golden Sand & Green Land Ecology And Environment
Protection Development Co., Ltd. 1
(1.3) Xxxxxxx Xxxxxxxxxx 1
(1.4) Golden Sand Shareholders 1
2. The Capital of the Parties: 1
(2.1) The Capital of HEXC 1
(2.2) The Capital of Golden Sand 1
3. Transaction Descriptive Summary: 1
4. SEC compliance. 2
5. Florida compliance. 2
6. Audited Financial Statements. 2
II. PLAN OF EXCHANGE 3
1. Conditions Precedent to Closing. 3
(1.1) Shareholder Approval. 3
(1.2) Board of Directors. 3
(1.3) Due Diligence Investigation. 3
(1.4) The rights of dissenting shareholders, 3
(1.5) All of the terms, covenants and conditions 3
(1.6) The representations and warranties 3
(1.7) Certificate of President of HEXC 4
2. Conditions Concurrent and Subsequent to Closing. 4
(2.1) Share Cancellation. 4
(2.2) Acquisition Share Issuance. 4
(2.3) No Reverse Split. 5
3. Plan of Exchange. 5
(3.1) Exchange of Shares: 5
(3.2) Conversion of Outstanding Stock: 5
(3.3) Closing/Effective Date: 5
(3.4) Surviving Corporations 6
(3.5) Rights of Dissenting Shareholders: 6
(3.6) Service of Process: 6
(3.7) Surviving Articles of Incorporation: 6
(3.8) Surviving By-Laws: 6
(3.9) Further Assurance, Good Faith and Fair Dealing: 6
(3.10) General Mutual Representations and Warranties. 6
(3.10.1) Organization and Qualification. 6
(3.10.2) Corporate Authority. 6
(3.10.3) Ownership of Assets and Property. 7
(3.10.4) Absence of Certain Changes or Events. 7
(3.10.5) Absence of Undisclosed Liabilities. 8
(3.10.6) Legal Compliance. 8
(3.10.7) Legal Proceedings. 8
(3.10.8) No Breach of Other Agreements. 8
(3.10.9) Capital Stock. 8
(3.10.10) SEC Reports, Liabilities and Taxes 8
(3.10.11) Brokers' or Finder's Fees. 9
(3.11) Miscellaneous Provisions 9
(3.11.1) 9
(3.11.2) 9
(3.11.3) 10
(3.11.4) 10
(3.11.5) 10
(3.11.6) 10
4. Termination. 10
5. Closing In Escrow. 10
Signatures 11
The Remainder of this Page is Intentionally left Blank
PLAN OF EXCHANGE
BY WHICH
XXXXXXXXXXXXX.XXX, INC.
(A FLORIDA CORPORATION)
SHALL ACQUIRE
GUANGDONG GOLDEN SAND & GREEN LAND ECOLOGY
AND ENVIRONMENT PROTECTION DEVELOPMENT CO., LTD.
(A CORPORATION ORGANIZED UNDER THE LAWS OF THE P.R. CHINA)
THIS PLAN OF EXCHANGE is made and dated this 26th day of June, 2003, to
supersede all previous agreements, if any between the parties. This Agreement
anticipates extensive due diligence by both parties, and may be terminated by
written notice, at any time (i) by mutual consent; (ii) by either party during
the due diligence phase.
I. RECITIALS
1. THE PARTIES TO THIS AGREEMENT:
(1.1) XXXXXXXXXXXXX.XXX, INC. ("HEXC"), a Florida corporation.
(1.2) GUANGDONG GOLDEN SAND & GREEN LAND ECOLOGY
AND ENVIRONMENT PROTECTION DEVELOPMENT CO., LTD. ("GOLDEN SAND"),
a corporation organized under the laws of the P.R. China.
(1.3) XXXXXXX XXXXXXXXXX, Chief Executive Officer and controlling
shareholder of HEXC.
(1.4) THE INDIVIDUAL SHAREHOLDERS OF GOLDEN SAND WHOSE NAMES ARE SET
FORTH ON THE SIGNATURE PAGE HEREOF (the "Golden Sand Shareholders").
2. THE CAPITAL OF THE PARTIES:
(2.1) THE CAPITAL OF HEXC consists of 200,000,000 shares of common voting
stock of $0.001 par value authorized, of which 8,116,000 shares are issued
and outstanding. HEXC is in the process of effecting a 20:1 reverse stock
split of its common shares, after which 405,800 shares will be issued and
outstanding.
(2.2) THE CAPITAL OF GOLDEN SAND consists of $5,000,000 RMB in registered
capital, which for the purposes of this agreement, are labeled common stock.
3. TRANSACTION DESCRIPTIVE SUMMARY: HEXC desires to acquire Golden Sand and the
Golden Sand Shareholders wish to be acquired by a public company. HEXC would
acquire 100% of the capital stock of Golden Sand for 50,000,000 new shares
of HEXC. HEXC would cause the cancellation of 380,000 shares of its outstanding
shares of common stock in exchange for three payments by Golden Sand and/or the
Golden Sand Shareholders of $500,000 in the aggregate and in consideration
of issuing the 50,000,000 new shares of HEXC. The parties intend that the
transaction qualify and meet the Internal Revenue Code requirements for a
tax-free reorganization, in which there is no gain or loss recognized for the
parties, with reference to Internal Revenue Code (IRC) sections 354 and 368.
4. SEC COMPLIANCE. HEXC shall cause the filing and the mailing to its
stockholders of an Information Statement pursuant to Section 14(f) of the
Securities Exchange Act of 1934, before closing.
5. FLORIDA COMPLIANCE. Articles of Exchange are required to be filed by
Florida Law as the last act to make the acquisition final and effective
under Florida law.
6. AUDITED FINANCIAL STATEMENTS. Certain filings under the Securities Exchange
Act of 1934 require audited financial statements of Golden Sand to be included.
In connection with HEXC's (or as its name may be changed by agreement of the
parties) filing of a Current Report on Form 8-K post closing, as it relates to
this transaction, audited financial statements of Golden Sand will be prepared
and filed with the SEC.
The Remainder of this Page is Intentionally left Blank
II. PLAN OF REOGANIZATION
1. CONDITIONS PRECEDENT TO CLOSING.
(1.1) SHAREHOLDER APPROVAL. Each corporate party shall have secured
shareholder approval for this transaction, if required, in accordance with the
laws of its place of incorporation and its constituent documents.
(1.2) BOARD OF DIRECTORS. The Boards of Directors of each corporate party
shall have approved the transaction and this agreement, in accordance with the
laws of its place of incorporation and its constituent documents.
(1.3) DUE DILIGENCE INVESTIGATION. Each party shall have furnished to
the other party all corporate and financial information which is customary
and reasonable, to conduct its respective due diligence, normal for this kind
of transaction. If either party determines that there is a reason not to
complete the Plan of Exchange as a result of their due diligence examination,
then they must give written notice to the other party prior to the expiration
of the due diligence examination period. The Due Diligence period, for purposes
of this paragraph, shall expire on the Closing Date. The Closing Date shall be
June 26, 2003, unless extended to a later date by mutual agreement of the
parties.
(1.4) THE RIGHTS OF DISSENTING SHAREHOLDERS, if any, of each party shall
have been satisfied and the Board of Directors of each party shall have
determined to proceed with the Plan of exchange.
(1.5) ALL OF THE TERMS, COVENANTS AND CONDITIONS of the Plan of exchange
to be complied with or performed by each party for Closing shall have been
complied with, performed or waived in writing; and
(1.6) THE REPRESENTATIONS AND WARRANTIES of the parties, contained in the
Plan of exchange, as herein contemplated, except as amended, altered or waived
by the parties in writing, shall be true and correct in all material respects
at the Closing Date with the same force and effect as if such representations
and warranties are made at and as of such time; and each party shall provide the
other with a certificate, certified either individually or by an officer, dated
the Closing Date, to the effect, that all conditions precedent have been met,
and that all representations and warranties of such party are true and correct
as of that date. The form and substance of each party's certification shall be
in form reasonably satisfactory to the other. In addition, it shall be a
condition precedent of Golden Sand's obligation to consummate the closing that a
certificate of good standing on HEXC shall have been delivered to it by the
Secretary of State of Florida.
(1.7) CERTIFICATE OF XXXXXXXXXX. It shall be a condition precedent to
Golden Sand's obligation to consummate the closing that a certificate of
Scheueman in substantially the following form be delivered to it at or prior to
closing:
(I) HEXC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida and has all requisite corporate
power to own, operate and lease its properties and assets and to carry on its
business.
(II) The authorized capitalization and the number of issued and outstanding
capital shares of HEXC are accurately and completely set forth in the Plan of
Exchange.
(III) The issued and outstanding shares of HEXC (including the 50,000,000
new shares of HEXC common stock to be issued at closing) have been duly
authorized and validly issued and are fully paid and non-assessable.
(IV) HEXC has the full right, power and authority to sell, transfer and
deliver 50,000,000 new shares of its common stock to the Golden Sand
Shareholders, and, upon delivery of the certificates representing such shares as
contemplated in the Plan of Exchange, will transfer to the Golden Sand
Shareholders good, valid and marketable title thereto, free and clear of all
liens.
(V) To the best of his knowledge, there is no litigation, proceeding or
governmental investigation pending or threatened against or relating to HEXC.
(VI) HEXC has taken all steps in connection with the Plan of Exchange and
the issuance of shares thereunder which are necessary to comply in all material
respects with the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934, as well as the rules and regulations promulgated pursuant
thereto.
2. CONDITIONS CONCURRENT AND SUBSEQUENT TO CLOSING.
(2.1) SHARE CANCELLATION. Immediate upon or prior to the Closing, HEXC
shall have accepted the cancellation of 380,000 shares, such that HEXC shall
have no more than 25,800 shares issued and outstanding, before the issuance
of new shares as provided herein. Payment for the cancelled shares and the
issuance of 50,000,000 new shares to Golden Sand shareholders shall be made
by Golden Sand and/or the Golden Sand Shareholders in the amount of $500,000
in the aggregate.
(2.2) ACQUISITION SHARE ISSUANCE. Immediately upon the Closing, HEXC shall
issue the acquisition shares and cancel certain other shares, as follows:
HEXC Issued 405,800
----------- -------
Share Cancellation 380,000
------------------ -------
Subtotal 25,800
------------ ------
Acquisition Share Issuance 50,000,000
-------------------------- ----------
Resulting Total 50,025,800
------------------- ----------
(2.3) NO REVERSE SPLIT. There shall be no reverse split of the common
stock of the public corporation for six months from the date the transaction
closes, without mutual consent as defined in this paragraph. "Original
Shareholders" means the shareholders of HEXC, immediately before the issuance of
any shares for acquistion. "Remaining Original Shareholders" means original
shareholders remaining as shareholders, as of the record date for any proposed
reverse split. "Mutual Consent" means two-thirds of the remaining original
shareholders.
3. PLAN OF EXCHANGE
(3.1) EXCHANGE AND REORGANIZATION: HEXC and Golden Sand shall be hereby
reorganized, such that HEXC shall acquire 100% the capital stock of Golden Sand,
and Golden Sand shall become a wholly-owned subsidiary of HEXC.
(3.2) CONVERSION OF OUTSTANDING STOCK: Forthwith upon the effective date
of the Plan, HEXC shall issue 50,000,000 new investment shares of its common
stock to or for the Golden Sand Shareholders.
(3.3) CLOSING/EFFECTIVE DATE: The Plan of exchange shall become effective
immediately upon approval and adoption by the parties hereto, in the manner
provided by the law of the places of incorporation and constituent corporate
documents, and upon compliance with governmental filing requirements, such as,
without limitation, compliance with Section 14 of the Securities Exchange Act of
1934, and the filing of Articles of Exchange, if applicable under State Law.
Closing shall occur when all requirements have been met. The parties anticipate
the filing of a Schedule 14-F Information Statement before closing.
The Remainder of this Page is Intentionally left Blank
(3.4) SURVIVING CORPORATIONS: Both corporations shall survive the exchange
and reorganization herein contemplated and shall continue to be governed by the
laws of its respective State of Incorporation.
(3.5) RIGHTS OF DISSENTING SHAREHOLDERS: Each Party is the entity
responsible for the rights of its own dissenting shareholders, if any.
(3.6) SERVICE OF PROCESS AND ADDRESS: Each corporation shall continue to
be amenable to service of process in its own jurisdiction, exactly as before
this acquisition. The address of HEXC is 0000 X.X. 00xx Xxxxxx, Xxxxxxx Xxxxx,
Xxxxxxx 00000. The address of Golden Sand is Post 510070, RM. 0000 Xxxxxx
Xxxxxxxx Xxxxxxxx #00 xianlie Zhong Road, Guangzhou, P.R. China. The address of
the Golden Sand Shareholders is in care of Golden Sand at Post 510070, R.M.,
0000 Xxxxxx Xxxxxxxx Xxxxxxxx #00 xianlie Zhong Road, Guangzhou, P.R. China.
(3.7) SURVIVING ARTICLES OF INCORPORATION: the Articles of Incorporation
of each Corporation shall remain in full force and effect, unchanged.
(3.8) SURVIVING BY-LAWS: the By-Laws of each Corporation shall remain
in full force and effect, unchanged.
(3.9) FURTHER ASSURANCE, GOOD FAITH AND FAIR DEALING: the Directors of
each Company shall and will execute and deliver any and all necessary documents,
acknowledgments and assurances and do all things proper to confirm or
acknowledge any and all rights, titles and interests created or confirmed
herein; and both companies covenant expressly hereby to deal fairly and in good
faith with each other and each others shareholders. In furtherance of the
parties desire, as so expressed, and to encourage timely, effective and
businesslike resolution the parties agree that any dispute arising between them,
capable of resolution by arbitration, shall be submitted to binding arbitration.
As a further incentive to private resolution of any dispute, the parties agree
that each party shall bear its own costs of dispute resolution and shall not
recover such costs from any other party.
(3.10) GENERAL MUTUAL REPRESENTATIONS AND WARRANTIES. The purpose and
general import of the Mutual Representations and Warranties, are that each party
has made appropriate full disclosure to the others, that no material information
has been withheld, and that the information exchanged is accurate, true and
correct. These warranties and representations are made by each party to the
other, unless otherwise provided, and they speak and shall be true immediately
before Closing.
(3.10.1) ORGANIZATION AND QUALIFICATION. Each Corporation is duly
organized and in good standing, and is duly qualified to conduct any business it
may be conducting, as required by law or local ordinance.
(3.10.2) CORPORATE AUTHORITY. Each Corporation has corporate
authority, under the laws of its jurisdiction and its constituent documents, to
do each and every element of performance to which it has agreed, and which is
reasonably necessary, appropriate and lawful, to carry out this Agreement in
good faith.
(3.10.3) OWNERSHIP OF ASSETS AND PROPERTY. Each Corporation has
lawful title and ownership of it property as reported to the other, and as
disclosed in its financial statements.
(3.10.4) ABSENCE OF CERTAIN CHANGES OR EVENTS. Each Corporation has
not had any material changes of circumstances or events which have not been
fully disclosed to the other party, and which, if different than previously
disclosed in writing, have been disclosed in writing as currently as is
reasonably practicable; Specifically, and without limitation:
(3.10.4-A) the business of each Corporation shall be conducted
only in the ordinary and usual course and consistent with its past practice, and
neither party shall purchase or sell (or enter into any agreement to so purchase
or sell) any properties or assets or make any other changes in its operations,
respectively, taken as a whole, or provide for the issuance of, agreement to
issue or grant of options to acquire any shares, whether common, redeemable
common or convertible preferred, in connection therewith;
(3.10.4-B) Neither Corporation shall (i) amend its Articles of
Incorporation or By-Laws, (ii) change the number of authorized or outstanding
shares of its capital stock, except as set forth in herein, or (iii) declare,
set aside or pay any dividend or other distribution or payment in cash, stock or
property;
(3.10.4-C) Neither Corporation shall (i) issue, grant or pledge or
agree or propose to issue, grant, sell or pledge any shares of, or rights of any
kind to acquire any shares of, its capital stock, (ii) incur any indebtedness
other than in the ordinary course of business, (iii) acquire directly or
indirectly by redemption or otherwise any shares of its capital stock of any
class or (iv) enter into or modify any contact, agreement, commitment or
arrangement with respect to any of the foregoing;
(3.10.4-D) Except in the ordinary course of business, neither
party shall (i) increase the compensation payable or to become payable by it to
any of its officers or directors; (ii) make any payment or provision with
respect to any bonus, profit sharing, stock option, stock purchase, employee
stock ownership, pension, retirement, deferred compensation, employment or other
payment plan, agreement or arrangement for the benefit of its employees (iii)
grant any stock options or stock appreciation rights or permit the exercise of
any stock appreciation right where the exercise of such right is subject to its
discretion (iv) make any change in the compensation to be received by any of its
officers; or adopt, or amend to increase compensation or benefits payable under,
any collective bargaining, bonus, profit sharing, compensation, stock option,
pension, retirement, deferred compensation, employment, termination or severance
or other plan, agreement, trust, fund or arrangement for the benefit of
employees, (v) enter into any agreement with respect to termination or severance
pay, or any employment agreement or other contract or arrangement with any
officer or director or employee, respectively, with respect to the performance
or personal services that is not terminable without liability by it on thirty
days notice or less, (vi) increase benefits payable under its current severance
or termination, pay agreements or policies or (vii) make any loan or advance to,
or enter into any written contract, lease or commitment with, any of its
officers or directors;
(3.10.4-E) Neither party shall assume, guarantee, endorse or
otherwise become responsible for the obligations of any other individual, firm
or corporation or make any loans or advances to any individual, firm or
corporation, other than obligations and liabilities expressly assumed by the
other that party;
(3.10.4-F) Neither party shall make any investment of a capital
nature either by purchase of stock or securities, contributions to capital,
property transfers or otherwise, or by the purchase of any property or assets of
any other individual, firm or corporation.
(3.10.5) ABSENCE OF UNDISCLOSED LIABILITIES. Each Corporation has,
and has no reason to anticipate having, any material liabilities which have
not been disclosed to the other, in the financial statements or otherwise in
writing.
(3.10.6) LEGAL COMPLIANCE. Each Corporation shall comply in all
material respects with all Federal, state, local and other governmental
(domestic or foreign) laws, statutes, ordinances, rules, regulations (including
all applicable securities laws), orders, writs, injunctions, decrees, awards
or other requirements of any court or other governmental or other authority
applicable to each of them or their respective assets or to the conduct of
their respective businesses, and use their best efforts to perform all
obligations under all contracts, agreements, licenses, permits and undertaking
without default.
(3.10.7) LEGAL PROCEEDINGS. Each Corporation has no legal proceedings,
administrative or regulatory proceeding, pending or suspected, which have not
been fully disclosed in writing to the other.
(3.10.8) NO BREACH OF OTHER AGREEMENTS. This Agreement, and the
faithful performance of this agreement, will not cause any breach of any other
existing agreement, or any covenant, consent decree, or undertaking by either,
not disclosed to the other.
(3.10.9) CAPITAL STOCK. The issued and outstanding shares and all
shares of capital stock of each Corporation is as detailed herein, that all
such shares are in fact issued and outstanding, duly and validly issued,
were issued as and are fully paid and non-assessable shares, and that, other
than as represented in writing, there are no other securities, options,
warrants or rights outstanding, to acquire further shares of such Corporation.
(3.10.10) SEC REPORTS, LIABILITIES AND TAXES. ( i ) HEXC has filed
all required registration statements, prospectuses, reports, schedules, forms,
statements and other documents required to be filed by it with the SEC since
the date of its registration under the Securities Exchange Act of 1934
(collectively, including all exhibits thereto, the "HEXC SEC Reports").
None of the HEXC SEC Reports, as of their respective dates, contained any
untrue statements of material fact or failed to contain any statements which
were necessary to make the statements made therein, in light of the
circumstances, not misleading. All of the HEXC SEC Reports, as of their
respective dates (and as of the date of any amendment to the respective HEXC
SEC Report), complied as to form in all material respects with the applicable
requirements of the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder.
(ii) Except as disclosed in the HEXC SEC Reports filed prior to the date
hereof, HEXC and its Subsidiaries have not incurred any liabilities or
obligations (whether or not accrued, contingent or otherwise) that are of a
nature that would be required to be disclosed on a balance sheet of HEXC and its
Subsidiaries or the footnotes thereto prepared in conformity with GAAP, other
than (A) liabilities incurred in the ordinary course of business or (B)
liabilities that would not, in the aggregate, reasonably be expected to have a
material adverse effect on HEXC.
(iii) Except as disclosed in the HEXC SEC Reports filed prior to the date
hereof, HEXC and each of its Subsidiaries (i) have prepared in good faith and
duly and timely filed (taking into account any extension of time within which to
file) all material tax returns required to be filed by any of them and all such
filed tax returns are complete and accurate in all material respects; (ii) have
paid all taxes that are shown as due and payable on such filed tax returns or
that HEXC or any of its Subsidiaries are obligated to pay without the filing of
a tax return; (iii) have paid all other assessments received to date in respect
of taxes other than those being contested in good faith for which provision has
been made in accordance with GAAP on the most recent balance sheet included in
HEXC's financial statements; (iv) have withheld from amounts owing to any
employee, creditor or other person all taxes required by law to be withheld and
have paid over to the proper governmental authority in a timely manner all such
withheld amounts to the extent due and payable; and (v) have not waived any
applicable statute of limitations with respect to United States federal or state
income or franchise taxes and have not otherwise agreed to any extension of time
with respect to a United States federal or state income or franchise tax
assessment or deficiency.
(3.10. 11) BROKERS' OR FINDER'S FEES. Each Corporation is not aware
of any claims for brokers' fees, or finders' fees, or other commissions or fees,
by any person not disclosed to the other, which would become, if valid, an
obligation of either company.
(3.11) MISCELLANEOUS PROVISIONS
(3.11.1) Except as required by law, no party shall provide any
information concerning any aspect of the transactions contemplated by this
Agreement to anyone other than their respective officers, employees and
representatives without the prior written consent of the other parties hereto.
The aforesaid obligations shall terminate on the earlier to occur of
(a) the Closing, or (b) the date by which any party is required under its
articles or bylaws or as required by law, to provide specific disclosure of
such transactions to its shareholders, governmental agencies or other third
parties. In the event that the transaction does not close, each party will
return all confidential information furnished in confidence to the other.
In addition, all parties shall consult with each other concerning the timing
and content of any press release or news release to be issued by any of them.
(3.11.2) This Agreement may be executed simultaneously in two
or more counterpart originals. The parties can and may rely upon facsimile
signatures as binding under this Agreement, however, the parties agree to
forward original signatures to the other parties as soon as practicable after
the facsimile signatures have been delivered.
(3.11.3) The Parties to this agreement have no wish to engage
in costly or lengthy litigation with each other. Accordingly, any and all
disputes which the parties cannot resolve by agreement or mediation, shall be
submitted to binding arbitration under the rules and auspices of the American
Arbitration Association. As a further incentive to avoid disputes, each party
shall bear its own costs, with respect thereto, and with respect to any
proceedings in any court brought to enforce or overturn any arbitration award.
This provision is expressly intended to discourage litigation and to encourage
orderly, timely and economical resolution of any disputes which may occur.
(3.11.4) If any provision of this Agreement or the application
thereof to any person or situation shall be held invalid or unenforceable, the
remainder of the Agreement and the application of such provision to other
persons or situations shall not be effected thereby but shall continue valid and
enforceable to the fullest extent permitted by law.
(3.11.5) No waiver by any party of any occurrence or provision
hereof shall be deemed a waiver of any other occurrence or provision.
(3.11.6) The parties acknowledge that both they and their
counsel have been provided ample opportunity to review and revise this agreement
and that the normal rule of construction shall not be applied to cause the
resolution of any ambiguities against any party presumptively. The Agreement
shall be governed by and construed in accordance with the laws of the State of
Nevada.
4. TERMINATION. The Plan of exchange may be terminated by written notice, at any
time prior to closing, by either party whether before or after approval by the
shareholders of either or both; (i) by mutual consent; (ii) by either party
during the due diligence phase, or (iii) by either party, in the event that
the transaction represented by the anticipated Plan of exchange has not been
implemented and approved by the proper governmental authorities 120
days from the of this Agreement. In the event that termination of the Plan of
exchange by either or both, as provided above, the Plan of exchange shall
forthwith become void and there shall be no liability on the part of either
party or their respective officers and directors.
5. CLOSING IN ESCROW. The parties hereto currently contemplate closing this
Plan of Exchange in escrow pursuant to the terms of an Escrow Agreement,
a copy of which is attached as Exhibit A hereto.
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This agreement is executed on behalf of each of the parties as of the date
first above written.
XXXXXXXXXXXXX.XXX, INC. GUANGDONG GOLDEN SAND & GREEN
LAND ECOLOGY AND
ENVIRONMENTAL
By: ________________________ PROTECTION DEVELOPMENT CO., LTD.
By:_____________________________
Golden Sand Shareholders:
______________________________________ _____________________________________
(Individually) (Individually)
______________________________________ _____________________________________
(Individually) (Individually)
______________________________________ _____________________________________
(Individually) (Individually)
______________________________________ _____________________________________
(Individually) (Individually)
______________________________________ _____________________________________
(Individually) (Individually)
______________________________________ _____________________________________
(Individually) (Individually)
Xxxxxxx Xxxxxxxxxx
______________________________________
(Individually)
Exhibit A: ESCROW AGREEMENT
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT, made and entered into among Xxxxxxxxxxxxx.xxx, Inc.,
a Florida corporation (the "Company"), Guangdong Golden Sand & Green Land
Ecology And Environment Protection Development Co., Ltd., a corporation
organized under the laws of the P.R. China ("Golden Sand"), the Shareholders
listed on the signature pages hereof (the "Golden Sand Shareholders"), Xxxxxxx
Xxxxxxxxxx, the Chief Executive Officer and controlling shareholder of the
Company ("Xxxxxxxxxx"), and Greentree Financial Group, Inc., a North Carolina
corporation ("Greentree")(the "Escrow Agent").
R E C I T A L S:
- - - - - - - -
A. The Company, Golden Sand, the Golden Sand Shareholders and Xxxxxxx
Xxxxxxxxxx have entered into a Plan of Exchange, dated June 26, 2003, pursuant
to which Golden Sand will become a wholly owned subsidiary of the Company;
B. As contemplated in the Plan of Exchange, the Company will consummate a
20:1 reverse stock split, and all share amounts set forth in this Escrow
Agreement shall be in post-split figures.
C. Pursuant to the Plan of Exchange, the Golden Sand Shareholders
will transfer all of their _________ shares of common stock of Golden Sand to
the Company in exchange for 50,000,000 new investment shares and 1,000,000
shares of convertible preferred stock of the Company.
D. Also pursuant to the Plan of Exchange, the 380,000 control shares owned
by Xxxxxxxxxx will be retired by the Company (and certain other expenses will be
deducted) in exchange for the three payments equaling $500,000 by Golden Sand
and/or the Golden Sand Shareholders.
E. The parties desire that the shares of the Company and the shares of
Golden Sand to be exchanged pursuant to the Plan of Exchange, and the control
shares of the Company (collectively, the "Shares"), and the third and final
payment of $200,000 (the "Cash") to Xxxxxxxxxx (the "Escrow Funds") be held in
escrow until such time as the exchange transaction is consummated.
F. The exchange transaction shall only be consummated if (i) all necessary
filings are made with and approvals obtained from the Securities and Exchange
Commission and other state regulatory authorities to effect the exchange
transaction, (ii) the Company effects a change of its name to such new name as
Golden Sand shall designate, and (iii) the Company effects a change of its
ticker symbol to such new ticker symbol as Golden Sand shall designate.
G. The Escrow Agent is willing to establish an escrow account on the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained and other good and valuable considera-tion, it is agreed as
follows:
1. Recitals. All of the above recitals are true and correct.
---------
2. Establishment of Escrow Account. The parties hereto shall establish,
----------------------------------
and by execution of this Agreement hereby agree to establish, an escrow with the
Escrow Agent, which escrow shall be maintained with the Escrow Agent in its
account (the "Escrow Account") at a federal or state chartered bank (the
"Bank").
3. Escrow Period. The Escrow Agent agrees to receive, hold the Shares and
--------------
the Cash and invest the Cash in the Escrow Account in accordance with the terms
of this Agreement. The "Escrow Period" shall begin on the date hereof and shall
terminate on the date of the last of the following events to occur: (i) all
necessary filings are made with and approvals obtained from the Securities and
Exchange Commission and other state regulatory authorities to consummate the
exchange transaction, (ii) the Company effects a change of its name to such new
name as Golden Sand shall designate, and (iii) the Company effects a change of
its ticker symbol to such new ticker symbol as Golden Sand shall designate (the
"Release Date"). If no Release Date occurs by September 30, 2003, then the Cash
shall be released from escrow and be returned to the Golden Sand Shareholders
and the Shares shall be released from escrow and the certificates therefore
shall be delivered at the written instruction of the Company, Golden Sand or
Xxxxxxxxxx, as the case may be, given to the Escrow Agent. The earlier of the
foregoing dates is hereinafter referred to as the "Termination Date."
4. Disbursements from the Escrow Account. Upon the disbursement of the
--------------------------------------
Escrow Funds in accordance with Section 3 above, the Escrow Agent will have no
further responsibility with respect to the Escrow Funds so disbursed and no
further responsibility under this Agreement.
5. Investment of Escrow Amount. The Escrow Agent shall invest the Cash in
---------------------------
an interest-bearing account at the Bank. On the Termination Date, all accrued
interest shall be paid to the Golden Sand Shareholders.
6. Rights, Duties and Responsibilities of Escrow Agent. It is understood
----------------------------------------------------
and agreed that the duties of the Escrow Agent are purely ministerial in nature.
It is further agreed that:
(a) The Escrow Agent shall not be responsible for the performance by the
parties of their obligations under this Agreement.
(b) The Escrow Agent shall have the right to act in reliance upon any
document, instrument or signature believed by it in good faith to be genuine and
to assume (unless it has reason to believe otherwise) that any person purporting
to give any notice or instructions in accordance with this Agreement or in
connection with any transaction to which this Agreement relates has been duly
authorized to do so. The Escrow Agent shall not be obligated to make any inquiry
as to the authority, capacity, existence or identity of any person purporting to
give any such notice or instructions. The Escrow Agent is authorized, in its
sole discretion, to disregard any and all notices or instructions given by any
of the Company or by any other person, firm or corporation, except only such
notices or instructions as are herein provided for and orders or process of any
court.
(c) In the event that the Escrow Agent shall be uncertain as to its duties
or rights hereunder or shall receive instructions with respect to the Escrow
Funds which, in its sole opinion, are in conflict with either other instructions
received by it or any provision of this Agreement, it shall be entitled to hold
the Escrow Funds, or a portion thereof, in the Escrow Account pending the
resolution of such uncertainty to the Escrow Agent's sole satis-faction, by
entry of an order, judgment or decree by a court or courts of competent
jurisdiction or otherwise; or the Escrow Agent, at its option, may deposit the
Escrow Funds in the registry of a court of competent jurisdiction in a
proceeding to which all parties in interest are joined. Upon so depositing such
funds and filing its complaint and interpleader, the Escrow Agent shall be
completely discharged and released from further liability.
(d) The Escrow Agent shall not be liable for any action taken or
omitted hereunder except in the case of its bad faith, gross negligence or
willful misconduct. The Escrow Agent shall be entitled to consult with counsel
of its own choosing and shall not be liable for any action taken, suffered or
omitted by it in reasonable reliance upon the advice of such counsel. Any
reasonable expenses incurred by Escrow Agent in connection with such
consultation shall be reimbursed by the Company.
(e) The Escrow Agent shall have no responsibility at any time to ascertain
whether or not any security interest exists in the Escrow Funds or any part
thereof or to file any financing state-ment under the Uniform Commercial Code
with respect to the Escrow Funds or any part thereof.
(f) This Agreement sets forth exclusively the duties of the Escrow Agent
with respect to any and all matters pertinent hereto and no implied duties or
obligation shall be read into this Agreement against the Escrow Agent.
7. No Interests Created in Fund. The Escrow Agent shall not issue any
--------------------------------
certificate of deposit, stock certificates or any other instrument or document
representing any interest in the Escrow Funds, except that it may send a
written notice to the Company acknowledging receipt or disbursement of the
deposited funds.
8. Amendment; Resignation. This Agreement may be altered or amended only
----------------------
with the written consent of the Company, Golden Sand, the Golden Sand
Shareholders, Xxxxxxxxxx and the Escrow Agent. The Escrow Agent may resign as
Escrow Agent at any time upon ten (10) days' prior written notice to the
parties. In the case of the Escrow Agent's resignation, its only duty shall be
to hold and dispose of the Escrow Funds in accordance with the original
provisions of this Agreement until a successor Escrow Agent shall be appointed
and written notice of the name and address of such successor Escrow Agent shall
be given to the Escrow Agent by the Company, whereupon the Escrow Agent's only
duty shall be to pay over to the successor Escrow Agent the Escrow Funds.
9. Fees and Expenses. The Escrow Agent shall, in addition to the
-----------------
indemnification provided for in Section 10 below, be entitled to be reimbursed
by the Company for any reasonable expenses for performing its obligations in
connection with this Agreement.
10. Indemnification. The Company agrees to indemnify the Escrow Agent and
---------------
its officers, agents, directors, partners and employees (herein, jointly and
severally the "Indemnitees") against, and hold them harmless of and from, any
and all loss, liability, cost, damage and expense, including without limitation,
reasonable attorneys' fees, which the Indemnitees may suffer or incur by reason
of any action, claim or proceeding brought by any third party against the
Indemnitees, arising out of or relating in any way to this Agreement or any
transaction contemplated by this Agreement, or in the performance of its duties
hereunder including, but not limited to any interpleader action brought pursuant
to Section 6(c).
11. Governing Law, Jurisdiction and Venue. This Agreement shall be governed
--------------------------------------
by and construed in accordance with the laws of the State of Florida and the
proper venue and jurisdiction for any action or claim with respect to this
Agreement or any document delivered pursuant hereto shall be in the Circuit
Court in Broward County, Florida. The parties agree that service of process in
any such action or claim shall be deemed valid if made by registered mail,
return receipt requested, sent to the address set forth in Section 13 hereof.
Nothing in this Agreement is intended to or shall confer upon anyone other than
the parties hereto any legal or equitable right, remedy or claim.
12. Assignability. This Agreement shall not be assignable without the
--------------
written consent of all of the parties hereto. All of the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the successors and permitted assigns of the parties.
13. Notices. All notices required or permitted to be given in connec-tion
--------
with this Agreement shall be sent by registered or certified mail, return
receipt required, and addressed as follows:
If to the Company: Xxxxxxx Xxxxxxxxxx
0000 X.X.00xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
If to Golden Sand Xxxxxx X. Xxxxxx, Esq.
0000 Xxxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
If to the Escrow Agent: R. Xxxxx Xxxxxxx, CPA
Greentree Financial Group, Ltd.
000 X. Xxxxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
14. Severability. If any provision of the Agreement or the application
-------------
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of the Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
15. Execution in Several Counterparts. This Agreement may be executed in
-----------------------------------
several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
16. Entire Agreement. This Agreement constitutes the entire agreement
-----------------
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or oral) of the
parties in connection herewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June
26, 2003.
XXXXXXXXXXXXX.XXX, INC.
By:
_______________________________
Xxxxxxx Xxxxxxxxx, President
GUANGDONG GOLDEN SAND & GREEN LAND
ECOLOGY AND ENVIRONMENTAL PROTECTION
DEVELOPMENT CO., LTD.
By:
_______________________________
GOLDEN SAND SHAREHOLDERS:
__________________________________ __________________________________
(Individually) (Individually)
__________________________________ __________________________________
(Individually) (Individually)
__________________________________ __________________________________
(Individually) (Individually)
__________________________________ __________________________________
(Individually) (Individually)
__________________________________ __________________________________
(Individually) (Individually)
__________________________________ __________________________________
(Individually) (Individually)
XXXXXXX XXXXXXXXXX GREENTREE
FINANCIAL GROUP, INC.
_________________________________ By: ________________________________
(Individually) R. Xxxxx Xxxxxxx, Vice President
