FIRST AMENDED 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. INTRODUCTION 1
II. RECITALS 1
1. The Parties to this Agreement: 2
(1.1) Xxxxxxxxxxxxx.xxx, Inc. 2
(1.2) Guangdong Golden Sand & Green Land Ecology And Environment
Protection Development Co., Ltd. 2
.. (1.3) Xxxxxxx Xxxxxxxxxx 2
(1.4) Golden Sand Shareholders 2
2. The Capital of the Parties: 2
(2.1) The Capital of HEXC 2
(2.2) The Capital of Golden Sand 2
3. Transaction Descriptive Summary: 2
4. SEC compliance. 3
5. Florida compliance. 3
6. Audited Financial Statements. 3
III. FIRST AMENDED PLAN OF EXCHANGE 4
1. Conditions Precedent to Closing. 4
(1.1) Shareholder Approval. 4
(1.2) Board of Directors. 4
(1.3) Due Diligence Investigation. 4
(1.4) The rights of dissenting shareholders, 4
(1.5) All of the terms, covenants and conditions 4
(1.6) The representations and warranties 4
(1.7) Certificate of President of HEXC 5
2. Conditions Concurrent and Subsequent to Closing. 5
(2.1) Share Cancellation. 5
(2.2) Acquisition Share Issuance. 5
3. Plan of Exchange 5
(3.1) Exchange of Shares: 6
(3.2) Conversion of Outstanding Stock: 6
(3.3) Closing/Effective Date: 6
(3.4) Surviving Corporations 7
(3.5) Rights of Dissenting Shareholders: 7
(3.6) Service of Process: 7
(3.7) Surviving Articles of Incorporation: 7
(3.8) Surviving By-Laws: 7
(3.9) Further Assurance, Good Faith and Fair Dealing: 7
(3.10) General Mutual Representations and Warranties. 7
(3.10.1) Organization and Qualification. 6
(3.10.2) Corporate Authority. 7
(3.10.3) Ownership of Assets and Property. 8
(3.10.4) Absence of Certain Changes or Events. 8
(3.10.5) Absence of Undisclosed Liabilities. 9
(3.10.6) Legal Compliance. 9
(3.10.7) Legal Proceedings. 9
(3.10.8) No Breach of Other Agreements. 9
(3.10.9) Capital Stock. 9
(3.10.10) SEC Reports, Liabilities and Taxes 9
(3.10.11) Brokers' or Finder's Fees. 10
(3.11) Miscellaneous Provisions 10
(3.11.1) 10
(3.11.2) 10
(3.11.3) 11
(3.11.4) 11
(3.11.5) 11
(3.11.6) 11
4. Termination. 11
5. Closing In Escrow 11
Signatures 12
The Remainder of this Page is Intentionally left Blank
FIRST AMENDED 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 FIRST AMENDED PLAN OF EXCHANGE is made and dated this 31st day of
July, 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. INTRODUCTION
Xxxxxxxxxxxxx.xxx, Inc., a Florida corporation ("HEXC" or the "Company")
and Guangdong Golden Sand & Green Land Ecology And Environment Protection
Development Co., Ltd., a corporation organized under the laws of the People's
Republic of China ("Golden Sand"), Xxxxxxx Xxxxxxxxxx, President and controlling
shareholder of HEXC, and the individual shareholders of Golden Sand whose names
are set forth on the signature page hereof (the "Golden Sand Shareholders")
hereby amend the Plan of Exchange, dated June 26, 2003 (the "Plan of Exchange"),
in its entirety, and this First Amended Plan of Exchange, dated July 31, 2003
(the "First Amended Plan of Exchange") hereby supercedes the Plan of Exchange in
its entirety. All references in the Plan of Exchange to a reverse stock split
are hereby deleted in their entirety.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
II. RECITALS
1. THE PARTIES TO THIS AGREEMENT:
(1.1) XXXXXXXXXXXXX.XXX, INC., a Florida corporation ("HEXC" or the
"Company").
(1.2) 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")
(1.3) XXXXXXX XXXXXXXXXX, President 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, $0.001 par value, authorized, of which 8,270,000 shares are
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 is referred to as
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. Xxxxxxxxxx would tender for cancellation by HEXC a total of 7,600,000
shares of common stock in exchange for three payments by Golden Sand and/or the
Golden Sand Shareholders of $500,000 in the aggregate. 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 on Schedule 14F-1/A pursuant to Section
14(f) of the Securities Exchange Act of 1934, at least ten days before the
closing, amending an earlier filing and reporting a change of control of HEXC at
the closing of the transactions contemplated by this agreement. In addition,
HEXC shall cause the filing and the mailing to its stockholders of an
Information Statement on Schedule 14C/A pursuant to Section 14(c) of the
Securities Exchange Act of 1934, amending an earlier filing and reporting an
amendment to the Articles of Incorporation of HEXC to effect a change in the
name of HEXC to Golden Sand Eco-Protection, Inc. Finally, HEXC shall file all
required Current Reports on Form 8-K pursuant to the Securities Exchange Act of
1934, including an amendment of an earlier filing, which are necessary to
disclose material events and include audited financials for Golden Sand.
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
III. FIRST AMENDED PLAN OF EXCHANGE
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 FIRST AMENDED 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 July 31, 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 FIRST AMENDED PLAN OF EXCHANGE.
(1.5) ALL OF THE TERMS, COVENANTS AND CONDITIONS of the FIRST AMENDED
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 FIRST AMENDED 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
Xxxxxxxxxx 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 FIRST AMENDED 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 FIRST AMENDED 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 FIRST AMENDED 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,
Xxxxxxxxxx shall have tendered for cancellation of 7,600,000 shares, such that
HEXC shall have no more than 670,000 shares issued and outstanding, before the
issuance of new shares as provided herein. Payment for the cancelled shares
shall be made by the 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 8,270,000
----------- ---------
Share Cancellation 7,600,000
------------------ ---------
Subtotal 670,000
-------- -------
Acquisition Share Issuance 50,670,000
-------------------------- ----------
Resulting Total 50,716,000
--------------- ----------
3. FIRST AMENDED 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 FIRST AMENDED 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 14F-1 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"), except for an Information Statement on Schedule 14F-1 to be
filed in connection with Xx. Xxxxxxxxxx'x acquisition of control of HEXC,
which shall be filed with the SEC prior the termination of the escrow
established by the Escrow Agreement referred to in Section 5
hereof. 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 FIRST AMENDED 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 FIRST AMENDED 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 FIRST AMENDED PLAN OF EXCHANGE by either or both, as provided above, the
FIRST AMENDED 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
FIRST AMENDED PLAN OF EXCHANGE in escrow pursuant to the terms of an Escrow
Agreement, a copy of which is attached as Exhibit A hereto.
The Remainder of this Page is Intentionally left Blank
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 ENVIRONMENT
By: /s/ Xxxxxxx Xxxxxxxxxx PROTECTION DEVELOPMENT CO., LTD.
----------------------
Xxxxxxx Xxxxxxxxxx
Chairman By: /s/ Xxxx Xxx
------------
Xxxx Xxx
President
Golden Sand Shareholders:
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
Xxxxxxx Xxxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
----------------------
(Individually)
FIRST AMENDED ESCROW AGREEMENT
------------------------------
THIS FIRST AMENDED 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. The Company, Golden Sand, the Golden Sand Shareholders and
Xxxxxxx Xxxxxxxxxx have entered into a First Amended Plan of Exchange,
dated July 31, 2003, which amends the Plan of Exchange and pursuant to
which Golden Sand will become a wholly owned subsidiary of the Company.
C. As contemplated in the First Amended Plan of Exchange, the Company
rescinded its proposal to consummate a 20:1 reverse stock split, but in
all other material respects ratified and confirmed the transactions
contemplated by the Plan of Exchange.
D. Pursuant to the First Amended Plan of Exchange, the Golden Sand
Shareholders will transfer all of their shares of capital 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.
E. Also pursuant to the Plan of Exchange, 7,600,000 control shares owned
by Xxxxxxxxxx will be tendered for retirement 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.
F. The parties desire that the shares of the Company and the shares
of Golden Sand to be exchanged pursuant to the First Amended 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.
G. 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.
H. 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 October 31, 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 aninterest-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 connection
-------
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, Inc.
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 July
31, 2003.
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Xxxxxxx Xxxxxxxxx, Chairman
GUANGDONG GOLDEN SAND & GREEN LAND
ECOLOGY AND ENVIRONMENTAL PROTECTION
DEVELOPMENT CO., LTD.
By: /s/ Xxxx Xxx
------------
Xxxx Xxx
President
Golden Sand Shareholders:
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
____________________________ ____________________________
(Individually) (Individually)
XXXXXXX XXXXXXXXXX GREENTREE FINANCIAL
GROUP, INC.
/s/ Xxxxxxx Xxxxxxxxxx By: /s/ R. Xxxxx Xxxxxxx
---------------------- --------------------
(Individually) R. Xxxxx Xxxxxxx,
Vice President
