THIS AGREEMENT dated as at the 15th day of July, 1998
BETWEEN:
KELKE INVESTMENTS LTD., a corporation incorporated under the laws
of the Turks and Caicos Islands, B.W.I.
(hereinafter called the "Exchanger")
PARTY OF THE FIRST PART,
-and-
AMERICOM USA. INC., a corporation incorporated under the laws of
the State of Delaware, in the United States of America,
(hereinafter called the "Exchangee")
PARTY OF THE SECOND PART:
WHEREAS the Exchanger is the owner of FIVE HUNDRED (500) shares
(hereinafter called the "Exchanged Shares") of RMC DIVERSIFIED ASSOCIATES
INTERNATIONAL, LTD., (hereinafter called the "Corporation") a corporation
incorporated under the laws of the State of California, in the United States of
America
AND WHEREAS the Exchanger has agreed to exchange and the Exchangee has
agreed to exchange the Exchanged Shares owned hy the Exchanger for shares at
near or equal value;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants herein contained and for other good and valuable consideration
(the adequacy, sufficiency and receipt of which is hereby acknowledged by each
of the parties hereto), the parties hereto hereby covenant and agree as follows:
1. Exchange - Subject to the terms and conditions hereof, the Exchanger hereby
conveys and transfers to the Exchangee and the Exchangee hereby conveys and
transfers to the Exchanger the number of shares set forth in paragraph 2 hereof.
2. Exchange Value - The Exchange Value of each block of shares shall be equal to
the value of the shares for which they are exchanged.
3. Satisfaction of Exchange - The Exchange Value shall be recognized and
satisfied by the issuance to the Exchanger of TWO HUNDRED FIFTY THOUSAND
(250,000) shares in the capital of the Exchangee, which shares shall have a fair
market value equal to the shares of the Exchanger. The said Shares shall be
issued forthwith by the Exchangee as fully paid and non-assessable.
4. Debts, Claims and Payables - It is agreed and understood between the parties
that as part of the exchange herein the Exchangee does hereby undertake to
assume, settle and retire all outstanding debts, claims and payables currently
owed to the Exchanger by the Corporation.
5. Exchanger's Representations and Warranties - the Exchanger hereby represents
and warrants to the Exchangee that:
The Exchanger solely represents and warrants to the Exchangee as follows
and acknowledges that the Exchangee is relying on such representations and
warranties in connection with the exchange by the Exchangee of the Shares and
that the Exchangee would not have entered into this Agreement without such
representations and warranties:
a) Organization The Exchanger is duly incorporated and organized under the
laws of the Turks and Caicos Islands, B.W.I. and has the corporate power
to own, lease or operate its properties and to conduct its business as
now being conducted by them. The Exchanger has the corporate power and
authority to execute this Agreement and to perform its obligations
hereunder. The Exchanger is duly qualified as a corporation to do
business in each jurisdiction in which the nature of their business or
the property and assets owned or leased by each of them makes such
qualification necessary.
b) Authorization. This Agreement has been duly authorized, executed and
delivered by the Exchanger and is a legal, valid and binding obligation
of the Exchanger.
c) No Other Agreements to Purchase. No person other than the Exchangee has
any written or oral agreement or option or any right or privilege
(whether by law or contractual) capable of becoming an agreement or
option for the purchase or acquisition from the Exchanger of the
Exchanged Shares.
d) Ownership of Exchanged Shares. The Exchanger is the beneficial owner and
holder of record of the Exchanged Shares of the Corporation, with good
and marketable title thereto, free and clear of all Encumbrances and,
without limiting the generality of the foregoing, none of the Exchanged
Shares are subject to any voting trust, shareholder agreement or voting
agreement. Upon completion of the transactions contemplated by this
Agreement, all of the Exchanged Shares will be owned by the Exchangee as
the beneficial owner and holder of record, with good and marketable
title thereto.
e) No Violation. The execution and delivery of this Agreement by the
Exchanger and the consummation of the transactions contemplated herein
will not result in either:
(a) the breach or violation of any of the provisions of, or
constitute a default under, or conflict with or cause the
acceleration of any obligation of any of the Exchanger or the
Corporation under:
(i) any Contract to which any of the Exchanger or the
Corporation are a party or by which any of them is, or
their properties are bound;
(ii) any provision of the constating documents, by-laws or
resolutions of the board of directors or shareholders of
the Corporation;
(iii) any judgment, decree, order or award of any court,
governmental body or arbitrator having jurisdiction over
any of the Exchanger or the Corporation;
(iv) any license, permit, approval, consent or authorization
held by any of the Exchanger, or the Corporation or
necessary to the ownership of the Exchanged Shares; or
(v) to the knowledge of the Exchanger, any applicable law,
statute, ordinance regulation or rule; or
(b) the creation or imposition of any Encumbrances on any of the
Exchanged Shares or any property or assets of the Corporation.
6. Exchangee's Representations, Warranties and Covenants - The Exchangee hereby
represents, warrants and covenants to the Exchanger that:
(a) the Exchangee is duly incorporated and subsisting under the laws of the
State of Delaware;
(b) the Shares to be issued to the Exchanger pursuant hereto have been duly
authorized;
(c) the issuance to the Exchanger of the Shares does not result in a breach
of any term or provision of, or constitute a default under any
indenture, agreement, instrument, licence or permit to which the
Exchangee is a party or by which it is bound or any unanimous
shareholder agreement; and
7. Survival of Representations, Warranties and Covenants - The representations,
warranties and covenants of the Exchanger and the Exchangee contained in this
agreement shall survive the completion of the transaction contemplated by this
agreement and, notwithstanding such completion, shall continue in full force and
effect for the benefit of the Exchangee and the Exchanger as the case may be.
8. Sections and Headings - The division of this Agreement into sections and the
insertion of headings are for convenience of reference only and shall not affect
the interpretation of this Agreement. Unless otherwise indicated, any reference
in this Agreement to a section or a Schedule refers to the specified section of
or Schedule to this Agreement.
9. Number, Gender or Persons - In this Agreement, words importing the singular
number only shall include the plural and vice versa, words importing gender
shall include all genders and words importing persons shall include individuals,
corporations, partnerships, associations, trusts, unincorporated organization,
governmental bodies and other legal or business entities.
10. Entire Agreement - This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether written or
oral. There are not any conditions, covenants, agreement representations,
warranties or other provisions, expressed or implied, collateral, statutory or
otherwise, relating to the subject matter hereof except as herein provided.
11. Time of Essence - Time shall be of the essence of this Agreement;
12. Applicable Law - This Agreement shall be construed, interpreted and enforced
in accordance with, and the respective rights and obligations of the parties
shall be governed by, the laws of the State of California applicable therein,
and each party hereby irrevocably and unconditionally submits to the exclusive
jurisdiction of the courts of the State of California and all courts competent
to hear appeals therefrom.
13. Severability - If any provisions of this Agreement is determined by a court
of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is hereby
declared to be separate, severable and distinct.
14. Successors and Assigns - This Agreement shall enure to the benefit of and
shall be binding on and enforceable by the parties and, where the context so
permits, their respective legal representatives, successors and permitted
assigns.
15. Amendments and Waivers - An amendment or waiver of any provisions of this
Agreement shall not be binding on any party unless consented to in writing by
such party. A waiver of any provisions of this Agreement shall not constitute a
waiver of any other provision, nor shall any waiver constitute a continuing
waiver unless otherwise expressly provided.
16. Interpretation - There will be no application of the rule interpreting an
agreement against its drafter, because all parties played a joint role in
drafting it.
IN WITNESS WHEREOF the parties hereto have executed the within
agreement.
SIGNED, SEALED AND DELIVERED )
in the presence of: )
KELKE INVESTMENTS LTD.
Per: ___________________________
Authorized Signing Officer
AMERICOM USA. INC.
Per: ___________________________
Authorized Signing Officer
