Exhibit 10.1
Exchange Agreement
Agreement dated as of December 5, 2008 by and among China 9D Construction Group,
Inc., a Nevada corporation (the "Company"), and the other parties who are
signatories to this agreement (collectively, the "Former CDG Shareholders").
Preliminary Statement
By Agreement and Plan of Merger dated as of August 10, 2007, the Company
acquired all of the outstanding shares of common stock of China Decoration Group
Limited, a British Virgin Islands corporation ("CDG"), from the Former CDG
Shareholders for a total of 35,796,796 shares of the common stock of the Company
("the Shares") and an aggregate cash dividend amounting to $15.5 million.
October 17, 2007, instead of the cash dividend, China 9D Construction Group (the
"Company") issued an aggregate of 10,333,333 shares of its common stock, $.001
par value (the "Shares"), to CDG Shareholders, in the aggregate outstanding
principal amount of $15.5 million.
The Former CDG Shareholders and the Company desire to unwind the merger
transaction in the manner set forth below.
NOW THEREFORE, in consideration of the premises and the representations,
warranties and covenants of the parties contained in this agreement, the parties
agree as follows:
1. Exchange. Concurrently with the execution of this agreement, the Former
CDG Shareholders have delivered to the Company certificates evidencing the
Shares duly endorsed in blank in exchange for one share of the common
stock of CDG. The number of Shares to be delivered to the Company by each
Former CDG Shareholder and fractional shares of CDG common stock to be
issued to each Former CDG Shareholder are set forth on Schedule A annexed
hereto.
2. Representations and Warranties of the Former CDG Shareholders. Each of the
Former CDG Shareholders represents and warrants to the Company, severally
but not jointly, as follows:
(a) If other than a natural person, it is a duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization.
(b) If other than a natural person, it has full right, power and authority
to enter into this agreement and to consummate the transactions contemplated
hereby.
(c) This agreement has been duly and validly executed and delivered by the
Former CDG Shareholder, and is a valid and binding agreement of the Former CDG
Shareholder, enforceable against the Former CDG Shareholder, in accordance with
its terms, except as such enforceability may be subject to: (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights; or (ii) the
remedy of specific performance and injunction and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) The execution, delivery and performance of this agreement by the
Former CDG Shareholder does not and will not conflict with or violate any
provision of law or regulation, or any writ, order or decree of any court,
governmental regulatory authority or agency or any applicable license,
franchise, certificate, permit, authorization, approval or consent, applicable
to the Former CDG Shareholder, or if other than a natural person, any provision
of its organization documents, and do not and will not result in a breach of, or
constitute a default under or require any consent pursuant to any agreement,
contract, arrangement or understanding to which it is a party. The execution and
delivery of this agreement and the consummation of the transactions contemplated
hereby (i) requires no consent, approval or authorization from any court,
governmental regulatory authority or agency or any other person; and (ii) will
not result in the execution or imposition of any lien, charge or encumbrance
upon any of the Shares under any indenture or instrument to which the Former CDG
Shareholder is a party, or by which any of the Former CDG Shareholder's property
or business may be bound.
(d) The Former CDG Shareholder is the sole legal and beneficial owner of
the shares of the Company common stock being transferred to the Company by the
Former CDG Shareholder hereunder, free and clear of all claims, liens,
mortgages, charges, security interests, encumbrances and other restrictions and
limitations of any kind whatsoever.
(e) The Former CDG Shareholder understands and acknowledges that the
fractional shares of CDG common stock it will receive hereunder have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
and will be issued without registration thereunder in reliance on an exemption
from the registration requirements of United States federal and state securities
laws under Regulation S promulgated under the Securities Act. In connection
therewith, the Former CDG Shareholder represents and warrants to the Company
that
(1) The Former CDG Shareholder is not a U.S. Person (as defined
below) and is not an affiliate (as defined in Rule 501(b) under the Securities
Act) of the Company and is not acquiring the fractional share of CDG common
stock for the account or benefit of a U.S. Person. A U.S. Person means any one
of the following:
(A) any natural person resident in the United States of
America;
(B) any partnership or corporation organized or incorporated
under the laws of the United States of America;
(C) any estate of which any executor or administrator is a
U.S. person;
(D) any trust of which any trustee is a U.S. person;
(E) any agency or branch of a foreign entity located in the
United States of America;
(F) any non-discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a U.S. person;
(G) any discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary organized, incorporated
or (if an individual) resident in the United States of America; and
(H) any partnership or corporation if:
(i) organized or incorporated under the laws of any foreign
jurisdiction; and
(ii) formed by a U.S. person principally for the purpose of
investing in securities not registered under the Securities Act, unless it is
organized or incorporated, and owned, by accredited investors (as defined in
Rule 501(a) under the Securities Act) who are not natural persons, estates or
trusts.
(2) At the time of the origination of contact concerning this
agreement and the date of the execution and delivery of this agreement, the
Former CDG Shareholder was outside of the United States.
3. Representations and Warranties of the Company. The Company represents and
warrants to the Former DCG Shareholders as follows:
(a) The Company is a duly organized and validly existing in good standing
under the laws of the jurisdiction of its incorporation.
(b) The Company has full right, power and authority to enter into this
agreement and to consummate the transactions contemplated hereby.
(c) This agreement has been duly and validly executed and delivered by the
Company, and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as such enforceability may be subject to: (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights; or
(ii) the remedy of specific performance and injunction and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(d) The execution, delivery and performance of this agreement by the
Company does not and will not conflict with or violate any provision of law or
regulation, or any writ, order or decree of any court, governmental regulatory
authority or agency or any applicable license, franchise, certificate, permit,
authorization, approval or consent, applicable to the Company, or any provision
of its Articles of Incorporation or by-laws, and does not and will not result in
a breach of, or constitute a default under or require any consent pursuant to
any agreement, contract, arrangement or understanding to which it is a party.
The execution and delivery of this agreement and the consummation of the
transactions contemplated hereby (i) requires no consent, approval or
authorization from any court, governmental regulatory authority or agency or any
other person; and (ii) will not result in the execution or imposition of any
lien, charge or encumbrance upon the fractional shares of common stock to be
issued to the Former CDG Shareholders under any indenture or instrument to which
the Company is a party, or by which any of the Company's property or business
may be bound.
4. Releases
(a) Except for causes of action, demands, claims and damages related
specifically to the parties' representations, warranties and obligations under
this agreement, each of the Former CDG Shareholders, for themselves, their
executors, heirs, successors, parents, subsidiaries, affiliates, assigns,
current and former officers, directors, shareholders, transferees,
representatives, principals, agents, attorneys and employees, hereby release and
forever discharge the Company, their heirs, successors, parents, subsidiaries,
affiliates, assigns and their current and former and its officers, directors,
shareholders, transferees, representatives, principals, agents, attorneys, and
employees from and against all actions, causes of actions, claims, suits, debts,
liens, damages, judgments, and demands whatsoever, whether matured or unmatured,
whether at law or in equity, and whether now known or unknown, that the Former
CDG Shareholders for themselves, their officers, directors, managers and their
heirs, successors and assigns, agents, executors, and administrators, or any
successor or assigns, now have or may have had, or hereafter claim to have, at
any time, arising out of or relating to any warranties, covenants,
representations, acts or omissions done or occurring prior to and including the
date of this agreement, involving or arising out of or related in any way to the
Agreement and Plan of Merger referenced herein, and the operation of the
business of the Company and CDG.
(b) Except for causes of action, demands, claims and damages related
specifically to the parties' representations and obligations under this
agreement, the Company for itself, its successors, parents, subsidiaries,
affiliates, assigns, current and former officers, directors, shareholders,
transferees, representatives, principals, agents, attorneys and employees,
hereby release and forever discharge each of the Former CDG Shareholders, their
heirs, successors, parents, subsidiaries, affiliates, assigns and their current
and former officers, directors, shareholders, transferees, representatives,
principals, agents, attorneys, and employees from and against all actions,
causes of actions, claims, suits, debts, liens, damages, judgments, and demands
whatsoever, whether matured or unmatured, whether at law or in equity, and
whether now known or unknown, that the Company for itself, its officers,
directors, managers and their heirs, successors and assigns, agents, executors,
and administrators, or any successor or assigns, now have or may have had, or
hereafter claim to have, at any time, arising out of or relating to any
warranties, covenants, representations, acts or omissions done or occurring
prior to and including the date of this agreement, involving or arising out of
or related in any way to the Agreement and Plan of Merger referenced herein and
the operation of the business of the Company and CDG.
(c) Nothing in this Section 5 shall prevent the parties from asserting or
pursuing any claim to enforce the terms of this agreement.
6. Miscellaneous
(a) This agreement represents the entire agreement between the parties
hereto with respect to the transactions contemplated hereby and supersedes all
prior agreements with respect thereto, whether written or oral.
(b) This agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard, however, to such
jurisdiction's principles of conflict of laws.
(c) This agreement may be executed in counterparts, each of which shall be
an original, but all of which shall constitute but one Agreement.
[signatures appear on following page]
IN WITNESS WHEREOF, the parties hereto being duly authorized have executed this
agreement as of the date first written above.
China 9D Construction Group, Inc.]
By: /s/ ▇▇▇▇ ▇▇▇▇
-----------------------
▇▇▇▇ ▇▇▇▇
Chief Executive Officer
Former CDG Shareholders:
/s/ Guo-▇▇▇▇ ▇▇▇▇ /s/ Guo-▇▇▇▇ ▇▇▇▇ /s/ Li-▇▇▇▇ ▇▇
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Guo-▇▇▇▇ ▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇-▇▇▇▇ ▇▇
/s/ Qiao-▇▇▇▇ ▇▇▇▇ /s/ ▇▇▇ ▇▇▇▇
------------------ ------------
Qiao-▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
Innovation Gaining Investments Limited Shenzhen Huayin Guaranty & Investment
Company Limited
By: /s/ Yu Wanli By: /s/ Yu Guoqiong
------------------------ -------------------------
Name: Yu Wanli Name: Yu Guoqiong
Title: Sole Director Title: Sole Director
Nation City Investments Limited Arjuno Investments Limited
By: /s/ ▇▇▇ ▇▇▇▇ By: /s/ Li Xiyan
------------------------ -------------------------
Name: ▇▇▇ ▇▇▇▇ Name: Li Xiyan
Title: Sole Director Title: Sole Director
Quick Agent Investments Limited Billion Hero Investments Limited
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ Xu Zhuzhuan
------------------------ -------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: Xu Zhuzhuan
Title: Sole Director Title: Sole Director
Volento Investments Limited Even Bright Investment Limited
By: /s/ Fang Zaorong By: /s/ Fang Zaojie
------------------------ -------------------------
Name: Fang Zaorong Name: Fang Zaojie
Title: Sole Director Title: Sole Director
SCHEDULE A
CDG SHAREHOLDERS
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Name of CDG Shareholder Shares of Company Shares of CDG CDG Common Stock
Common Stock Ownership %
---------------------------------------------------- ----------------------- -------------------- --------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ 6,762,677 7,329 14.66%
---------------------------------------------------- ----------------------- -------------------- --------------------------
Zhou GuoTuan 6,762,677 7,329 14.66%
---------------------------------------------------- ----------------------- -------------------- --------------------------
Yu Ling Li 3,381,338 3,665 7.33%
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▇▇▇▇ ▇▇▇▇ qiao 3,921,060 4,251 8.50%
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▇▇▇▇ ▇▇▇ 539,722 586 1.17%
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Quick Agent Investment Limited 3,123,010 3,384 6.77%
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Volento Investment limited 3,123,010 3,384 6.77%
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Shenzhen Huayin Guaranty & Investment Company 2,901,588 3,150 6.30%
Limited
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Arjuno Investments Limited 3,123,010 3,384 6.77%
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Billion Hero Investments Limited 3,123,010 3,384 6.77%
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Even Bright Investments Limited 3,123,010 3,386 6.77%
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Innovation Gaining Investments Limited 3,123,010 3,384 6.77%
---------------------------------------------------- ----------------------- -------------------- --------------------------
Nation City Investments Limited 3,123,010 3,384 6.77%
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Total 46,130,132 50,000 100%
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