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EXHIBIT 10.33
Exchange Agreement by and between the Registrant and Everbright Finance
& Investment Co. Limited, dated December 31, 1996
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EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT ("Agreement") is made as of the 31st day of
December, 1996, by and among CHINA RESOURCES DEVELOPMENT, INC., a Nevada
corporation (the "Issuer"), and EVERBRIGHT FINANCE & INVESTMENT CO. LTD., a Hong
Kong company (the "Holder").
W I T N E S S E T H:
WHEREAS, the Issuer has previously issued to certain shareholders an
aggregate of 6,400,000 shares of the Issuer's Series A Preferred Stock, $1.00
par value (the "Series A Stock"), all of which shares of Series A Stock were
acquired by Holder; and
WHEREAS, the Issuer and the Holder previously entered into an Exchange
Agreement dated July 22, 1996, whereby the Holder exchanged the Series A Stock
for 32,000,000 shares of Issuer's common stock, $.001 par value (the "Common
Stock"), with substantial restrictions as to the participation of such shares of
Common Stock in dividends, distributions on dissolution and future
registrations; and
WHEREAS, the Issuer has approved a one-for-ten reverse split of its
outstanding shares of common stock, effective on the date hereof, and, as a
result of the reverse stock split, the Holder now owns 3,200,000 shares of
Common Stock; and
WHEREAS, the Issuer and the Holder deem it to be in the best interest
of the Company to now exchange the Common Stock for shares of the Issuer's
Series B Preferred Stock (the "Series B Stock") which have restrictions that are
the same or more stringent that those of the Common Stock.
NOW, THEREFORE, for and in consideration of the agreements contained
herein and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged and confessed, the parties agree as follows:
1. Exchange.
a. Exchange Shares. The 3,200,000 shares of Common Stock, with
substantial restrictions, held by the Holder shall be exchanged for Series B
Stock based on an exchange rate of one share of Series B Stock for each share of
Common Stock. In accordance therewith, the Holder shall deliver to the Issuer
the stock certificate representing the 32,000,000 pre-reverse-split shares of
Common Stock held by the Holder, properly endorsed for transfer, and the Issuer
shall deliver to the Holder a stock certificate representing 3,200,000 shares of
Series B Stock (the "Exchange Shares") in exchange (the "Exchange") for the
Holder's 3,200,000 post-reverse-split shares of Common Stock.
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b. Waiver of Dividend and Distribution Rights; Restriction on
Public Trading. The Holder and the Issuer agree that the Series B Stock shall
have no rights (i) to receive dividends in connection with the Exchange Shares,
and (ii) to receive distributions in the event of liquidation of the Issuer. In
addition, the Holder and the Issuer agree that the Issuer will not include the
Exchange Shares in any registration statement filed by the Issuer and will not
take any action to facilitate the registration of the Exchange Shares until
after July 22, 2000. The foregoing restrictions will be set forth in the
Certificate of Designation of Preferences, Rights and Limitations of Series B
Preferred Stock filed with the Secretary of State of Nevada. The Holder also
agrees that any transfer of the Exchange Shares will be conditioned upon the
receipt by the Issuer of the transferee's written waiver of dividend and
distribution rights and acceptance of restrictions on public trading.
c. Exchange. The Exchange shall occur as of the date of this
Agreement (the "Effective Date"). The parties agree that there are no other
conditions to the obligation of the Holder to exchange the Common Stock for the
Exchange Shares.
2. Representations and Warranties of Issuer. Issuer represents and
warrants to the Holder as follows:
a. Issuer. Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada.
b. Authority. Issuer has all necessary corporate power and
authority to enter into and carry out this Agreement. All corporate actions and
proceedings on the part of Issuer, its directors and shareholders necessary for
the authorization, execution, delivery and performance by Issuer of this
Agreement and the transactions contemplated hereby, including, without
limitation, the authorization, issuance and delivery of the Exchange Shares,
have been lawfully and validly taken. This Agreement is the valid and binding
obligation of the Issuer, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws and principles now or hereafter in effect relating to
or affecting the enforcement of creditors' rights in general and by general
principles of equity and except that the enforcement of the indemnity provisions
of Paragraph 5 may be limited by federal or state securities laws, other laws or
the public policy underlying any such laws.
c. Fully Paid and Non-Assessable Shares. Upon the Exchange,
the Exchange Shares will be duly authorized, validly issued, fully paid and
non-assessable, and will be free of any liens, charges, encumbrances,
restrictions on transfer or
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preemptive rights (except such that arise by acts of the Holder, under federal,
state or foreign securities laws or that exist by reason of this agreement or
any agreement heretofore entered into between the Holder and the Issuer) (each,
a "Lien").
d. No Violation. Neither the execution, delivery and
performance by Issuer of this Agreement, the consummation of the transactions
contemplated hereby nor the issuance of the Exchange Shares will: (i) violate
any provision of Issuer's Articles of Incorporation, as amended from time to
time, or Issuer's By-Laws; (ii) violate any provision of any statute or law or
any judgment, decree, order, regulation or rule of any court or governmental
authority to which Issuer or any of its properties or assets is subject, which
violation could have, singly or in the aggregate, a material adverse effect on
the business, properties, condition (financial or otherwise), results of
operations or prospects of Issuer; or (iii) violate, breach, constitute a
default under, permit the termination or acceleration of, or result in the
creation of any Liens upon the Exchange Shares or any material property of
Issuer under any agreement, instrument or obligation to which Issuer is a party
or by which it or any of its properties or assets is bound, which violation,
breach, default, termination acceleration or Lien could have, singly or in the
aggregate, any material adverse effect on the business, properties, condition
(financial or otherwise), results of operations or prospects of Issuer.
e. No Defaults. Issuer is not in violation of: (i) its
Articles of Incorporation or By-Laws as in effect on the effective date of this
Agreement; (ii) any statute or law or any judgment, decree, order, regulation or
rule of any court or governmental authority, which violation could have, singly
or in the aggregate, a material adverse effect on the business, properties,
condition (financial or otherwise), results of operations or prospects of
Issuer; or (iii) any material agreement to which Issuer is a party or by which
any of its properties or assets is bound, which violation could have, singly or
in the aggregate, a material adverse effect on the business, properties,
condition (financial or otherwise), results of operations or prospects of
Issuer.
f. No Consents. No notice to or filing with, and no
authorization, consent or approval of, any domestic or foreign court or any
public or governmental body or authority is necessary for the consummation by
Issuer of the transactions contemplated by this Agreement or the issuance of the
Exchange Shares except: (i) as may be required under the Securities Act of 1933,
as amended (the "1933 Act"), the securities or Blue Sky laws of any jurisdiction
or the corporate laws of the State of Nevada (including the Filing), (ii)
notices or filings of which the failure to give or make, or authorizations,
consents and approvals of which the failure to obtain, is based on information
given to Issuer by the
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Holder with respect to the Holder or its business, operations or ownership;
(iii) filings to amend the terms of the Issuer's Series B Stock to comply with
the terms of this Paragraph 1.b of this Agreement; and (iv) notices or filings
of which the failure to give or make, and authorizations, consents and approvals
of which the failure to obtain, would not individually or in the aggregate, have
a material adverse effect on the business, properties, condition (financial or
otherwise), results of operations or prospects of Issuer or adversely affect the
operations or prospects of Issuer to consummate the transactions contemplated by
this Agreement.
g. No Brokers or Finders. Issuer has retained no finder or
broker in connection transactions contemplated by this Agreement and hereby
agrees to indemnify and hold the Holder harmless from any liability for any
commission or compensation in the nature of an agent's fee to any broker or
other individual or entity (and the costs and expenses of defending against such
liability or asserted liability) arising from any act by Issuer or any of its
agents.
3. Representations and Warranties of Holder. The Holder hereby
represents and warrants to Issuer as follows:
a. Holder. The Holder is a company duly organized, validly
existing and in good standing under the laws of the jurisdiction set forth in
the preamble to this Agreement.
b. Authority. The Holder has all necessary power and authority
to enter into and carry out this Agreement. This Agreement is the valid and
binding obligation of the Holder, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws and principles now or hereafter in
effect relating to or affecting the enforcement of creditors' rights in general
and by general principles of equity and except that the enforcement of the
indemnity provisions of Paragraph 5 may be limited by federal or state
securities laws, other laws or the public policy underlying any of such laws.
c. No Violation. Neither the execution, delivery and
performance by the Holder of this Agreement nor the consummation of the
transactions contemplated hereby, will: (i) violate any provision of any statute
or law or any judgment, decree, order, regulation or rule of any court or
governmental authority to which the Holder or any of its properties or assets is
subject, which violation could have, singly or in the aggregate, a material
adverse effect on the Holder or its ability to perform its obligations under
this Agreement; or (ii) violate, breach, constitute a default under, permit the
termination or acceleration of, or result in the creation of any Lien upon any
material property of the Holder under any agreement, instrument or obligation to
which the Holder is a party or by which the Holder or
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any of its properties or assets is bound, which violation, breach, default,
termination, acceleration or Lien could have, singly or in the aggregate, a
material adverse effect on the Holder its ability to perform its obligations
under this Agreement.
d. No Consents. No notice to or filing with, and no
authorization, consent or approval of, any domestic or foreign court or any
public or governmental body or authority is necessary for the consummation by
the Holder of the transactions contemplated by this Agreement or the receipt of
the Exchange Shares except: (i) as may be required under the 1933 Act, the
securities or Blue Sky laws of any jurisdiction or the corporate laws of the
State of Nevada; (ii) notices or filings of which the failure to give or make,
or authorizations, consents and approvals of which the failure to obtain, is
based on information given to the Holder by Issuer with respect to Issuer or
Issuer's business, operations or ownership; and (iii) notices or filings of
which the failure to give or make, and authorizations, consents and approvals of
which the failure to obtain, would not individually or in the aggregate, have a
material adverse effect on the Holder or adversely affect Holder's ability to
consummate the transactions contemplated by this Agreement.
e. Investment Intent. The Holder is acquiring the Exchange
Shares solely for the Holder's own account and not with a view to, or for resale
in connection with, any distribution thereof. The Holder understands that the
Exchange Shares have not been registered under the 1933 Act by reason of
specified exemptions therefrom which depend upon, among other things, the bona
fide nature of the Holder's investment intent as expressed in this Subparagraph
(e).
f. Restricted Securities. The Holder understands that the
Exchange Shares may not be sold, transferred or otherwise disposed of without
registration and/or qualification under the 1933 Act and any applicable state
securities laws or Blue Sky Laws, or an exemption therefrom, and that in the
absence of appropriate registration and/or qualification, or exemption
therefrom, the Exchange Shares must be held indefinitely. The Holder further
understands that the Issuer will take no action to effect or facilitate such
registration and/or qualification until after July 22, 2000, at the earliest.
The Holder will not sell, transfer or otherwise dispose of the Exchange Shares
except pursuant to appropriate registration and/or qualification or an
appropriate exemption therefrom. Further, the Holder understands that the Issuer
will require, as a condition to any transfer of the Exchange Shares, that any
transferee of the Exchange Shares enter into an agreement by which such
transferee will waive its dividends rights and rights to distributions upon
liquidation of the Issuer in substantially the manner set forth in Paragraph
1.b. The Holder agrees to the placement of a legend on the certificate or
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certificates representing the Exchange Shares setting forth the foregoing
restrictions.
g. Experience. The Holder has such knowledge and experience in
financial and business matters and in making investments of this type that it is
capable of evaluating the merits and risks of acquiring the Exchange Shares.
h. Receipt of Information. The Holder has been furnished
access to Issuer's business records relating to the Exchange Shares, and such
additional information and documents as the Holder has requested, and has been
afforded an opportunity to ask questions of and receive answers from
representatives of Issuer concerning the terms and conditions of this Agreement
and the acquisition of the Exchange Shares.
i. Accredited Investor. The Holder is an "accredited
investor," as such term is defined in Rule 501(a) promulgated by the Securities
and Exchange Commission under the 1933 Act.
j. No Dividends or Distributions. The Holder understands that
the Exchange Shares are shares of Common Stock, except that, by virtue of the
Holder's waiver of dividend and distribution rights in Paragraph 1.b and for the
period set froth in such paragraph, the Exchange Shares do not entitle the
Holder to receive dividends as may be declared by the Board of Directors of the
Issuer from time to time or to receive distributions in the event of liquidation
of the Issuer.
k. No Brokers or Finders. The Holder has retained no finder or
broker in connection with the transactions contemplated by this Agreement and
hereby agrees to indemnify and hold Issuer harmless from any liability for any
commission or compensation in the nature of an agent's fee to any broker or
other individual or entity (and the costs and expenses of defending against such
liability or asserted liability) arising from any act by the Holder or any of
its agents.
4. Survival of Representations and Warranties. All representations and
warranties set forth in this Agreement shall survive the execution and delivery
of this Agreement, and the consummation of the transactions contemplated by this
Agreement, for the period of any applicable statutes of limitations.
5. Indemnification. Each party agrees to indemnify, defend and hold
harmless the other party from any claim, demand, loss, liability, damage or
expense, including, without limitation, interest, penalties and reasonable
attorneys' fees and costs of investigation, incurred as a result of any material
inaccuracy, misrepresentation or breach of any representation, warranty,
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covenant or agreement on the part of such party under or pursuant to this
Agreement and the Exhibits and Schedules hereto, if any.
6. General Provisions.
a. Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given if transmitted by
facsimile with receipt acknowledged, or upon delivery, if delivered personally
or by a recognized commercial courier with receipt acknowledged, or upon the
expiration of 72 hours after mailing, if mailed by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to Issuer: CHINA RESOURCES DEVELOPMENT, INC.
Room 2005, 20th Floor
Universal Trade Center
0-0X Xxxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attn: Xx. Xx Shunxing, President
Telephone No.: (000) 0000-0000
Facsimile No.: (000) 0000-0000
With a copy to: XXXXX & XXXXXXXXX
Xxxx Xxxxxx Xxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Holder: EVERBRIGHT FINANCE &
INVESTMENT CO. LIMITED
23/F., Office Tower
Xxxxxxxxxx Xxxxx
0 Xxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attn: Mr. I.P. Zhang, Director
Telephone No.: (000) 0000-0000
Facsimile No.: (000) 0000-0000
Any party from time to time may change its address, facsimile number or
other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
b. Entire Agreement. This Agreement (including the Schedules
and Exhibits, if any, to this Agreement) constitutes the entire agreement
between the parties with respect to its subject matter and no party shall be
entitled to benefits other than those specified herein, and all prior
agreements, statements,
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representations and warranties with respect to the subject matter of this
Agreement are superseded by this Agreement.
c. Amendments and Waivers. Neither this Agreement, nor any of
its provisions, may be amended or modified in any way, except by express written
agreement of the parties hereto. Neither any obligation of a party to this
Agreement, nor any breach or default by a party under this Agreement, may be
changed, waived, discharged or terminated except by a statement in writing
signed by the party against which the enforcement of such change, waiver,
discharge or termination is sought. No waiver by any party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to be
or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. Notwithstanding the foregoing, the Holder
shall have no power to revoke, and the Issuer shall have no power to allow the
revocation of, the Holder's waiver of dividend and distribution rights and the
restrictions on public trading set forth in Paragraph 1.b.
d. Successors and Assigns. This Agreement shall be binding
upon, and inure to the benefit of, the parties and their respective successors,
heirs, executors, administrators, legal representatives and assigns.
e. Severability. If any provision of this Agreement shall be
construed as invalid, illegal or unenforceable for any reason and in any
respect, and if the extent of such invalidity, illegality or unenforceability
does not destroy the basis of the bargain herein, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and the remainder of this Agreement shall remain in full force
and effect, enforceable in accordance with its terms as if such provisions had
not been included, or had been modified as provided below, as the case may be.
To carry out the intent of the parties hereto as fully as possible, the invalid,
illegal or unenforceable provision(s) , if possible, shall be deemed modified to
the extent necessary and possible to render such provision(s) valid and
enforceable.
f. Headings. The captions and headings to the Paragraphs and
Subparagraphs of this Agreement are inserted for purposes of convenience only,
are not part of this Agreement and shall be given no force or effect in
construing or interpreting the meaning of this Agreement or any of its
provisions.
g. Counterparts. This Agreement shall be in writing and may be
executed in one or more counterparts, each of which shall be deemed an original,
and all of which taken together shall constitute one and the same instrument.
h. Expenses. Issuer and the Holder shall each pay its own
expenses with respect to this Agreement and the
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transactions contemplated hereby; provided that Issuer shall pay any stamp or
other taxes (excluding income taxes) which may be payable upon the issuance of
the Exchange Shares.
i. Governing Law and Venue. This Agreement shall be governed
by and construed, interpreted and enforced in accordance with the law of the
State of Florida without reference to the conflict of laws principles thereof.
The courts of Florida in the Ninth Judicial Circuit, and the United States
District Court for the Middle District of Florida (Orlando Division), shall be
the exclusive courts of jurisdiction and venue for any litigation, special
proceeding or other proceeding as between the parties that may be brought, or
arise out of, in connection with, or by reason of this Agreement. The Holder
hereby consents to the jurisdiction of such courts.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized signatories, effective as the date first set
forth above.
"Issuer"
CHINA RESOURCES DEVELOPMENT,
INC., a Nevada corporation
By:/s/ Li Shunxing
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Li Shunxing, President
"Holder"
EVERBRIGHT FINANCE & INVESTMENT
CO. LIMITED, a Hong Kong company
By:/s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx, Director and
Authorized Signatory
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