EXCHANGE AGREEMENT
Agreement
dated this 26th
day of
March, 2008, by and among China Display Technologies, Inc., a Delaware
corporation (the “Company”), Xxxxxx Partners LP (“Xxxxxx”) and Eos Holdings
(“Eos,” and, together with Xxxxxx, the “Investors” and each, an
“Investor”).
W
I T N E S S E T H:
WHEREAS,
the Investors are holders of warrants to purchase shares of the Company’s common
stock; and
WHEREAS,
the Investors, singly, are willing to exchange a portion of their warrants
for
shares of the Company’s Series A Convertible Preferred Stock, par value $.001
per share (“Series A Preferred Stock”); and
WHEREAS,
the Investors are willing to make such exchange, on and subject to the
provisions of this Agreement;
WHEREFORE,
the parties do hereby agree as follows:
1. Each
Investor, acting singly and not jointly, agrees to exchange warrants (the
“Exchange Warrants”) to purchase the number of shares of common stock, par value
$.001 per share (“Common Stock”) set forth after its name under the columns
“$1.30 Warrants” and “$1.50 Warrants” for the number of shares of Series A
Preferred Stock set forth under the column “Preferred Stock.”
Investor
|
$1.30
Warrants
|
$1.50
Warrants
|
Preferred
Stock
|
|||||||
Xxxxxx
|
1,150,000
|
5,850,000
|
3,265,455
|
|||||||
Eos
|
29,487
|
150,000
|
83,730
|
|||||||
Total
|
1,179,487
|
6,000,000
|
3,349,185
|
2. In
consideration for the agreement of the Company to issue the Series A Preferred
Stock in exchange for the Exchange Warrants, each Investor hereby irrevocably
agrees as follows:
(a) The
3,700,000 shares of Series A Preferred Stock that are held in escrow pursuant
to
Section 6.15 of the Securities Purchase Agreement (the “Securities Purchase
Agreement”) dated September 12, 2007, by and among the Company and the
Investors, shall be delivered by the escrow agent to the Company for
cancellation. By executing this Agreement, the Company, Xxxxxx and Eos are
hereby jointly instructing the escrow agent to deliver the certificate for
the
3,700,000 shares of Common Stock to the Company. As a result, no Investor
shall
have any right under said Section 6.15.
(b) Any
warrants that are owned by the Investors, other than the Exchange Warrants
shall
be amended by deleting Section 7(e) of the warrants in its entirety.
Each
Investor shall promptly affix to each warrant the following legend:
“THIS
WARRANT HAS BEEN AMENDED BY THE DELETION OF SECTION 7(e) IN ITS
ENTIRETY.”
At
the
request of the Company, each Investor shall deliver to the Company the present
warrants and the Company will deliver to the Investors a warrant that is
identical with the present warrant except that it will not contain the present
Section 7(e).
3. Each
Investor represents and warrants that:
(a) It
has
the right to enter into this Agreement, and this Agreement constitutes the
valid, binding and obligation of such Investor, enforceable in accordance
with
its terms.
(b) It
owns
the Exchange Warrants free and clear of any liens, encumbrances, pledges,
options or other rights of any kind and description.
(c) It
has
not transferred or otherwise conveyed or enlivened any warrants that were
issued
to such Investor pursuant to the Securities Purchase Agreement.
(d) It
is an
accredited investor and is acquiring the shares of Series A Preferred Stock
pursuant to this Agreement for its own account, for investment and not with
a
view to the sale or distribution thereof.
4. The
Company represents and warrants that all necessary approval by the Company’s
board of directors has been obtained, and this Agreement constitutes the
valid,
binding and enforceable obligation of the Company. The shares of Series A
Preferred Stock, when issued pursuant to this Agreement, and the shares of
Common Stock issued upon conversion of such shares of Series A Preferred
Stock,
will be duly and validly authorized and issued, fully paid and non-assessable
and not issued in violation of any rights of any other person.
5. This
Agreement sets forth the entire agreement and understanding between the parties
and supersedes all prior
or
contemporaneous written or oral
agreements, promises, representations, understandings, letters
of intent and
negotiations, between
the parties with respect to the subject matter
of this
Agreement. No part of
this
Agreement
may be
modified or amended, nor may any right be waived,
except
by a written
instrument which expressly refers to this Agreement, states that it is a
modification or amendment of this Agreement or a waiver and is signed by
all of
the parties, or, in the case of waiver, by the party granting the waiver.
No
course of conduct or dealing or trade usage or custom and no course of
performance shall be relied on or referred to by any party to contradict,
explain or supplement any provision of this Agreement, it being acknowledged
by
the parties that this Agreement is intended to be, and is, the complete and
exclusive statement of the agreement with respect to its subject matter.
Any
waiver shall be limited to the express terms thereof and shall not be construed
as a waiver of any other provisions or the same provisions at any other time
or
under any other circumstances. No delay or failure by either party to exercise
any right under this Agreement, and no partial or single exercise of that
right,
shall constitute a waiver of that or any other rights.
6. This
Agreement and the rights of the parties shall be construed and enforced in
accordance with the laws of the State of New
York
applicable to agreements executed and to be performed wholly within such
state
and without regard to
principles of conflicts of law.
Each
party irrevocably (a) consents to the jurisdiction of the federal and state
courts situated
in New
York County, New York in
any
action that may be brought pursuant to this Agreement, and (b)
submits to and accepts, with respect to its properties and assets, generally
and
unconditionally, the in personam jurisdiction of the aforesaid courts, waiving
any defense that such court is not a convenient forum. In any such litigation
to
the extent permitted by applicable law, each party waives personal service
of
any summons, complaint or other process, and agrees that the service thereof
may
be made either (i) in the manner for giving of notices provided in Section
7 of
this Agreement (other than by telecopier) or (ii) in any other manner permitted
by law.
7. All
notices, requests or other communications required or permitted to be given
under this Agreement to any party shall be in writing and shall be deemed
to
have been sufficiently given when delivered by personal service or sent by
registered mail, overnight
courier services with provided evidence of delivery or attempted
delivery,
or
facsimile or e-mail, to the recipient addressed to the parties at their
respective addresses set forth on the signature page of this Agreement to
the
attention to the person who executed this Agreement on behalf of the
party.
Any
party may, be like notice, change the address or telecopy number or e-mail
or
the person to which notice is to be given.
Notice
shall be deemed given when received or when attempted delivery is made, provided
that notice by telecopier shall be deemed given when receipt is acknowledged
by
the recipient.
8. If
any
provision of this Agreement or application thereof to any person or circumstance
shall to any extent be invalid, the remainder of this Agreement or the
application of such provision to persons, entities or circumstances other
than
those as to which it is held invalid, shall not be affected thereby and each
provision of this Agreement shall be valid and enforceable to the fullest
extent
permitted by law.
9. This
Agreement shall not be construed more strongly against any party regardless
of
who is responsible for its preparation. The parties acknowledge each contributed
and is equally responsible for its preparation. In
resolving any dispute regarding, or construing any provision in, this Agreement,
there shall be no presumption made or inference drawn because of the drafting
history of the Agreement, or because of the inclusion of a provision not
contained in a prior draft or the deletion or modification of a provision
contained in a prior draft.
[Signatures
on following page]
IN
WITNESS WHEREOF,
the
Investors and the Company have executed this Agreement as of the date first
written above.
Signature
|
Address,
Telecopier and e-mail
|
CHINA
DISPLAY TECHNOLGIES, INC.
By:
/s/
Xxxxxxxx Xxxx-Xxx Xxxx
Xxxxxxxx
Xxxx-Xxx Xxxx
Chief
Executive Officer
|
c/o
Suny
Electronics (Shenzhen) Company, Limited
00X
Xxxxx, Xxxxx Xxxx, Xxxxxxx Xx. 0
Xxxxxxxxxx
Xxxx, Xxxxxxx Xxxxxxxx
Xxxxx
Xxxx
Xxxxxxxx,
XXXXX 000000
E-mail:
xxxxxxxx.xx0000@xxxxx.xxx
Fax:
00 0000-00000000
|
XXXXXX
PARTNERS LP
By:
Xxxxxx Capital Advisors, LLC, its General Partner
By:
/s/Xxxxxx Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx Xxxxxx, President
|
000
Xxxxx Xxxxxx; 00xx
xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Fax:
000 000-0000
e-mail:
xxx@xxxxxxxxxxxxxx.xxx
|
EOS
HOLDINGS
By:/s/
Xxx X. Xxxxxx
Xxx
X.Xxxxxx, CEO
|
0000
Xxxxxxxx Xx.
Xxx
Xxxxx, XX 00000
Attn:
Xxx X. Xxxxxx, President
E-mail:
xxxxxxx@xxxxxxxx.xxx
|