VOLUNTARY SHARE EXCHANGE AGREEMENT by and between

Exhibit 2.1 - Acquisition of Mandarin Venture Equity (Cambodia) Ltd

 

VOLUNTARY SHARE EXCHANGE AGREEMENT

by and between

MANDARIN VENTURE EQUITY INC.

and

MANDARIN VENTURE EQUITY CAMBODIA LIMITED

and the shareholders of

MANDARIN VENTURE EQUITY CAMBODIA LIMITED

 

THIS VOLUNTARY SHARE EXCHANGE AGREEMENT (“Agreement”) is entered into and effective as of the 10th day of May, 2007 by and among Mandarin Venture Equity Inc., a Nevada corporation (“Mandarin”), located at 1455 – ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ and Mandarin Venture Equity Cambodia Limited, a Cambodian corporation (“Cambodia”), located at Suite 122 – 124 ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, and the shareholders of Cambodia (the “Shareholders”), located at the addresses provided in Exhibit A, which is attached hereto and incorporated herein by reference (Mandarin, Cambodia and the Shareholders collectively, the “Parties”).

WHEREAS, Mandarin is a company duly incorporated in the State of Nevada, is in good standing; and

WHEREAS, Cambodia is a private company duly incorporated in Cambodia and is in good standing; and

WHEREAS, Mandarin and Cambodia have agreed to the acquisition of Cambodia by Mandarin through a voluntary share exchange of all of the outstanding stock of Cambodia for an aggregate of ten million (10,000,000) shares of the common stock of Mandarin, which will operate as parent of Cambodia immediately following the voluntary share exchange; and

WHEREAS, Cambodia’s Shareholders will receive 100,000 shares of common stock of Mandarin for each share of Cambodia that they hold; and

WHEREAS, the Shareholders will select either two-thirds or three-fifths of the members of the Board of Directors of Mandarin immediately following the Exchange; and

WHEREAS, the Parties expect that the Share Exchange will advance certain of their business objectives; and

NOW, THEREFORE, in consideration of these premises and the mutual promises made herein, and in consideration of the representations, warranties and covenants herein, the Parties agree as follows:

Definitions.

1.1     “Exchange” means the voluntary share exchange between Mandarin and the Shareholders;

 

1.2       “Mandarin Common Stock” means the common stock of Mandarin, par value $0.001 per share.

 

1.4       “Person” means an individual, a partnership, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency or political subdivision thereof).

 

1.6       “Security Interest” means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic’s, materialman’s, and similar liens, (b) liens for taxes not yet due and payable or for taxes that the taxpayer is contesting in good faith through appropriate proceedings, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the ordinary course of business and not incurred in connection with the borrowing of money.

 

 

 

 

1.7       “Subsidiary” means any corporation with respect to which a specified corporation owns a majority of the common stock or has the power to vote or direct the voting of sufficient securities of that corporation to elect a majority of the directors.

 

Basic Transaction.

The Voluntary Share Exchange. The Parties, respectively, have deemed it advisable and in the best interests of the Parties, that Cambodia be acquired by Mandarin (the “Acquisition”). The Parties desire to accomplish the Acquisition by conducting a voluntary share exchange between the Shareholders and Mandarin, whereby Mandarin will authorize the offer and issuance of an aggregate of ten million (10,000,000) shares of its common stock to the Shareholders in exchange for all of the outstanding capital stock of Cambodia held by the Shareholders.

Exchange Rate. 100,000 shares of common stock of Mandarin will be issued and exchanged for each share of capital stock of Cambodia outstanding on the date of this Agreement. Attached as Exhibit A is a schedule showing the share position of the Shareholders in Cambodia and the number of shares of Mandarin common stock each will be offered.

Actions Prior to Closing. Prior to Closing, (i) Mandarin shall have available ten million (10,000,000) authorized shares of its common stock and (ii) shall make available information about Mandarin and the offering of its common stock as well as answer any questions the Shareholders may have.

The Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Mandarin in Vancouver, British Columbia, commencing at 9:00 a.m. local time on the first business day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the Parties will take at the Closing itself) or such other date as the Parties may mutually determine (the “Closing Date”).

Actions at the Closing. At the Closing, (i) Cambodia will deliver to Mandarin the various certificates, instruments and documents referred to in Section 6.1 below, and (ii) Mandarin will deliver to Cambodia the various certificates, instruments and documents referred to in Section 6.2 below.

2.7       Selection of Directors to Serve on Board of Directors of Mandarin. On the Closing Date, the Shareholders shall be entitled to select either two-thirds or three-fifths of the members of the Board of Directors of Mandarin, which Board shall not consist of less than three members.

Representations and Warranties of Cambodia and the Shareholders. Cambodia and the Shareholders represent and warrant to Mandarin that the statements contained in this Section 3 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 3).

Organization, Qualification and Corporate Power. Cambodia is a corporation duly organized, validly existing and in good standing under the laws of Cambodia. Cambodia is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required. Cambodia has full power and authority to enter into and perform the transactions contemplated by this Agreement.

Capitalization. As of the date of this Agreement, the entire authorized capital stock of Cambodia consists of an unlimited number of Common Shares, no par value, of which 100 shares are issued and outstanding. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require Cambodia to issue, sell or otherwise cause to become outstanding any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to Cambodia.

 

 

Authorization of Transaction. Cambodia has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder; provided, however, that the Share Exchange cannot be consummated unless and until each of the Shareholders signs this Agreement and executes a Subscription Agreement for the Mandarin common stock. This Agreement constitutes the valid and legally binding obligation of Cambodia and the Shareholders, enforceable in accordance with its terms and conditions.

Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Cambodia or the Shareholders are subject or any provision of the charter or bylaws of Cambodia or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which Cambodia or the Shareholders are party to or by which they are bound or to which any of Cambodia’s assets is subject (or result in the imposition of any Security Interest upon any of Cambodia’s assets). Other than in connection with the provisions of Nevada law, Cambodia or the Shareholders are not required to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement.

Intellectual Property. Cambodia owns interests in and rights to certain mineral exploration properties, data bases and geological reports.

Assets. Cambodia covenants that its assets consist of those identified in Exhibit C, attached hereto and incorporated herein by reference.

Financial Statements. Cambodia will deliver to Mandarin copies of the following financial statements for Cambodia and any respective subsidiaries: Auditable financial statements for the year ended March 31, 2007.

Undisclosed Liabilities. Cambodia has no liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or not accrued, whether liquidated or not liquidated, and whether due or to become due), including any liability for taxes, except for (i) liabilities set forth on the face of the balance sheet dated as of the most recent fiscal period ended and (ii) liabilities which have arisen after the most recent fiscal period ended in the ordinary course of business (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract, breach of warranty, tort, infringement, or violation of law).

Brokers’ Fees. Cambodia has no liability or obligation to pay any fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement.

Residence of Investors. The Shareholders reside outside of the United States.

Liens and Litigation. Cambodia has no liens or encumbrances against it or its shares nor does Cambodia know of any current or intended legal claims against it.

No Registration Rights. The Shareholders will not have the right to demand that the Mandarin common stock they acquire through the voluntary share exchange be registered under the U.S. Securities Act of 1933, as amended.

Cambodia and the Shareholders understand the meaning and legal consequences of the representations and warranties contained in this Section 3 and agree to indemnify, defend and hold harmless Mandarin and each director, officer and shareholder thereof from and against any and all loss, damage or liability (including without limitation attorneys' fees) due to or arising out of a breach of any representation or warranty of the undersigned, except that Cambodia or the Shareholders do not waive any rights granted to them under federal or state securities laws.

Representations and Warranties of Mandarin. Mandarin represents and warrants to Cambodia and the Shareholders that the statements contained in this Section 4 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though

 

 

made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4).

Organization. Mandarin is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada.

Capitalization. The entire authorized capital stock of Mandarin consists of 200,000,000 shares of common stock, having a par value of $0.001 per share, of which 5,041,500 are duly issued and outstanding as of the date of this Agreement and 10,000,000 shares of preferred stock having a par value of $0.001 per share of which none are issued. The outstanding shares of Mandarin have been validly issued by it and are fully paid and non-assessable. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require Mandarin to issue, sell or otherwise cause to become outstanding any of its capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to Mandarin.

Authorization of Transaction. Mandarin has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Mandarin, enforceable in accordance with its terms and conditions.

Noncontravention. To the knowledge of any director or officer of Mandarin, neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Mandarin is subject or any provision of the charter or bylaws of Mandarin or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument or other arrangement to which Mandarin is a party or by which it is bound or to which any of its assets is subject except where the violation, conflict, breach, default, acceleration, termination, modification, cancellation, or failure to give notice would not have a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement. To the knowledge of any director or officer of Mandarin, and other than in connection with the provisions of Nevada law, Mandarin does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement, except where the failure to give notice, to file, or to obtain any authorization, consent, or approval would not have a material adverse effect on the ability of the Parties to consummate the transactions contemplated by this Agreement.

OTC Bulletin Board Listing. Mandarin intends to make all filings and do all things necessary to obtain and then maintain a listing on the NASD’s Over-the-Counter Bulletin Board and/or ▇▇▇▇▇▇▇▇▇▇.▇▇▇.

Brokers’ Fees. Mandarin has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.

Liens and Litigation. Mandarin has no liens or encumbrances against it or its shares nor does Mandarin know of any current or intended legal claims against it.

Restricted Stock. The shares of Mandarin common stock have not been registered under the Act, nor under any state securities laws. An investment in such shares has not been approved by the SEC or by any state securities commission or similar body. Any representation to the contrary is unlawful.

Mandarin understands the meaning and legal consequences of the representations and warranties contained in this Section 4 and agrees to indemnify, defend and hold harmless Cambodia, and each director and officer thereof, and the Shareholders from and against any and all loss, damage

 

 

or liability (including without limitation attorneys' fees) due to or arising out of a breach of any representation or warranty of the undersigned, except that Mandarin does not waive any rights granted to it under United States federal or state securities laws.

Covenants. The Parties agree as follows with respect to the period from and after the execution of this Agreement.

General. Each of the Parties will use its best efforts to take all action and to do all things necessary, proper, or advisable in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the closing conditions set forth in Section 6 below).

Notices and Consents. Each of the Parties will give any notices to third parties, and will use its reasonable best efforts to obtain any third party consents in connection with the matters referred to in Section 3.4 and Section 4.4 above.

Regulatory Matters and Approvals. Each of the Parties will give any notices to, make any filings with, and use its reasonable best efforts to obtain any authorizations, consents, and approvals of governments and governmental agencies in connection with the matters referred to in Section 3.4 and Section 4.4 above.

Conditions to Obligation to Close.

Conditions to Obligation of Mandarin. The obligation of Mandarin to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions by Cambodia and the Shareholders:

this Agreement and the Exchange shall have been approved by unanimous consent of the directors of Cambodia;

Cambodia shall have procured all of the third party consents specified in Section 5 above, if any;

the representations and warranties set forth in Section 3 above shall be true and correct in all material respects at and as of the Closing Date;

the Shareholders shall each deliver to Mandarin a signed Subscription Agreement, the form of which is attached hereto as Exhibit B;

Cambodia shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;

No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the right of Mandarin to own its assets and to operate its businesses (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);

Cambodia and the Shareholders shall have delivered to Mandarin a certificate to the effect that each of the conditions specified above in Section 6.1 are satisfied in all respects; and

all actions to be taken by Cambodia and the Shareholders in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments, and other documents required to effect the transactions contemplated hereby will be reasonably satisfactory in form and substance to Mandarin.

Mandarin may waive any condition specified in this Section 6.1 if it executes a writing so stating at or prior to the Closing.

Conditions to Obligation of Cambodia and the Shareholders. The obligation of Cambodia and the Shareholders to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions by Mandarin:

this Agreement and the Exchange shall have been approved by unanimous consent of the directors of Mandarin;

Mandarin shall have procured all of the third party consents specified in Section 5 above, if any;

Mandarin shall file with the Secretary of State of Nevada the necessary documents to effect the

 

 

share exchange, if any;

the representations and warranties set forth in Section 4 above shall be true and correct in all material respects through the Closing;

Mandarin shall deliver to the Shareholders certificates representing that number of Mandarin Shares to be issued to each of the Shareholders;

Reserved;

Mandarin shall have performed and complied with all of its covenants hereunder in all material respects through the Closing;

No action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);

Mandarin shall have delivered to Cambodia a certificate to the effect that each of the conditions specified above in Section 6.2 are satisfied in all respects (by signing this agreement); and

all actions to be taken by Mandarin in connection with consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby will be satisfactory in form and substance to Cambodia and the Shareholders.

Cambodia and the Shareholders may waive any condition specified in this Section 6.2 if each executes a writing so stating at or prior to the Closing.

Termination.

Termination of Agreement. Either Cambodia or Mandarin may terminate this Agreement with the prior authorization of its board of directors (whether before or after the Shareholders execute this Agreement) as provided below:

Cambodia and Mandarin may terminate this Agreement by mutual written consent at any time prior to the Closing Date;

Mandarin may terminate this Agreement by giving written notice to Cambodia and the Shareholders at any time prior to the Closing Date (A) in the event Cambodia or the Shareholders have breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Mandarin has notified Cambodia and the Shareholders of the breach, and the breach has continued without cure for a period of 10 days after the notice of breach or (B) if the Closing shall not have occurred on or before October 31, 2002, by reason of the failure of any condition precedent under Section 6.1 hereof (unless the failure results primarily from Mandarin breaching any representation, warranty, or covenant contained in this Agreement); or

Cambodia may terminate this Agreement by giving written notice to Mandarin at any time prior to the Closing Date (A) in the event Mandarin has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Cambodia has notified Mandarin of the breach, and the breach has continued without cure for a period of 10 days after the notice of breach or (B) if the Closing shall not have occurred on or before October 31, 2007, by reason of the failure of any condition precedent under Section 6.2 hereof (unless the failure results primarily from Cambodia or the Shareholders breaching any representation, warranty, or covenant contained in this Agreement).

Effect of Termination. If Mandarin or Cambodia terminate this Agreement pursuant to this Section 7, all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to any other Party (except for any liability of any Party then in breach).

Miscellaneous.

Survival. None of the representations, warranties and covenants of the Parties (other than the provisions in this Agreement concerning the issuance of Mandarin Common Stock) will survive

 

 

the Closing Date.

Entire Agreement. This Agreement (including the documents referred to herein) constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they related in any way to the subject matter hereof.

Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party.

Implementation. Each of the Parties shall take, or cause to be taken, all actions or do, or cause to be done, all things necessary, proper or advisable under the laws of the State of Nevada and the Country of Cambodia, including executing the necessary corporate consents for each Constituent Corporation, to consummate the Exchange.

Amendments and Waivers. The Parties may mutually amend any provision of this Agreement at any time prior to the Closing Date with the prior authorization of their respective boards of directors; provided, however, that any amendment effected subsequent to stockholder approval will be subject to the restrictions contained in the laws of the State of Nevada. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the Parties. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Nevada.

Attorneys’ Fees. In any action at law or in equity to enforce any of the provisions or rights under this Agreement, the prevailing party shall be entitled to recover from the other party or parties all of its costs, expense and reasonable attorneys’ fees incurred therein by the prevailing party, including costs, expenses and attorneys’ fees incurred on appeal.

Counterparts and Facsimile Signatures. This Agreement may be signed in counterparts, each of which shall be an original, but all of which shall constitute one and the same document. Signatures transmitted by facsimile shall be deemed valid execution of this Agreement binding on the parties.

Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

Expenses. Each of the Parties will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.

Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated there under, unless the context otherwise requires.

Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

Recitals. All recitals shall be construed as part of this Agreement.

Notices. All notices shall be in writing and shall be deemed to have been sufficiently given or

 

 

served (i) immediately, when personally delivered, (ii) within three (3) days after being deposited in the mail, by registered or certified mail, or (iii) within one (1) day after being deposited with a reputable overnight mail carrier which provides delivery of such mail to be traced, addressed as indicated on the signature pages below.

1455 – ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,

▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇

 

 

 

IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first set forth above.

 

 

 

Shareholders of Mandarin Venture Equity Cambodia Limited:

 

▇▇▇▇ D, ▇▇▇▇▇▇▇

 

By: /s/▇▇▇▇▇ Ea

▇▇▇▇▇ Ea

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT A

 

Descriptions and/or Maps of Exploration Area

[referred to in Clause 1]

 

 

 

 

ATTACHMENT B

 

Payment Structure of Payments to LIB-CAM by MAN-CAM

[referred to in Clause 3(a) and 3(c)]

 

 

 

ATTACHMENT C

 

Issue of Shares in Mandarin Venture Equity Ltd

[referred to in Clause 10]

 

 

All Shares in Mandarin Venture Equity Ltd will be valued at a deemed price of VWAP over fourteen (14) days prior to the date of each issue described in the table above. It is acknowledged and agreed by the Parties that depending on the VWAP price on each date of issue, more or less shares in Mandarin Venture Equity Ltd may be issued to LIB-CAM to ensure that LIB-CAM receives shares with an overall a value of one million US dollars (US$1,000,000).