EQUITY REORGANIZATION AGREEMENT BY AND BETWEEN CHINA CRESCENT ENTERPRISES, INC. AND NEWMARKET TECHNOLOGY, INC.
Exhibit 10.7
BY AND BETWEEN
AND
NEWMARKET TECHNOLOGY, INC.
This Equity Reorganization Agreement (“Agreement”) is entered into by and between NewMarket Technology, Inc., a Nevada Corporation (“NMKT”), and China Crescent Enterprises, Inc., a Nevada corporation (“CCTR”) as of the last date written below (“Effective Date”). NMKT and CCTR may each be referred to herein as a “Party” and may collectively be referred to herein as the “Parties.”
WITNESSETH:
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WHEREAS:
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NMKT is the holder of 250,000 shares of CCTR Series “A” Convertible Preferred Stock (the “Series A Preferred Stock”) and,
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WHEREAS:
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CCTR’s Articles of Incorporation authorize 20,000,000 shares of preferred stock (“Preferred Stock”), of which 250,750 are issued and outstanding on the date hereof and,
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WHEREAS:
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CCTR has expressed an interest in restructuring the equity held by NMKT and,
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WHEREAS:
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The Parties now desire to reorganize the preferred equity of CCTR held by NMKT.
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NOW THEREFORE: In consideration of the foregoing premises and the following promises contained herein and for other good and valuable consideration exchanged among the Parties, the receipt and sufficiency of which are hereby acknowledged by each, the Parties covenant and agree as follows:
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1.
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NMKT hereby agrees to submit for cancellation, the Series A Preferred Stock, in exchange for the issuance of 10,000 shares of CCTR Series C Convertible Preferred Stock with the Designations of Rights and Privileges as contained in Exhibit A hereto (the “Series C Shares”), and 5,000 shares of CCTR Series D Preferred Stock with the Designations of Rights and Privileges as contained in Exhibit B hereto (the “Series D Shares”).
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2.
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Time is of the Essence. The times for performance of the various obligations in this Agreement are essential due to the obligations and expenditures of the Parties. If a specific time is not specified, performance shall be prompt and with due regard to the conditions of performance of other parties in reliance thereon.
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3.
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Cooperation and Further Assurances. Approvals required by any Party shall not be unreasonably withheld or delayed. The Parties each agree to execute and deliver such documents and to perform such other acts, promptly upon request by another Party, which are, in the requesting Party’s reasonable judgment, necessary or appropriate to effectuate the purposes and intent of this Agreement.
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4.
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Binding Effect. This Agreement shall inure to the benefit of and shall be binding on the Parties and their respective successors and assigns.
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5.
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Notices. All notices, certificates, requests, or other communications required hereunder shall be sufficient only if given in writing and shall be deemed to have been duly given when delivered in person, sent by a nationally recognized courier which can track and verify delivery, or three (3) days after sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
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To NMKT: NewMarket Technology, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax no. (000) 000-0000
To CCTR: China Crescent Enterprises, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax no. (000) 000-0000
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Either Party hereunder may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, requests, or other communications shall be sent.
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6.
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Authority and Capacity to Execute. Each person signing this Agreement represents and warrants that he or she has complete authority and legal capacity to execute and enter into this Agreement on behalf of the Party for which he or she is signing, and agrees to defend, indemnify and hold harmless all other Parties if that authority or capacity is challenged.
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7.
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Knowing and Voluntary Agreement. The Parties each represent and warrant that they have read this Agreement and they understand it. The Parties each acknowledge and agree that they had a full and fair opportunity to consult with legal counsel of their own choosing in the negotiation, drafting and execution of this Agreement. In entering into this Agreement, each Party understands and agrees that it does so of its own free will, relying wholly upon its own individual judgment and the advice of its own legal counsel, and that it has not been influenced to any extent whatsoever by any representations or statements made by the Parties, persons, firms, or corporations which are hereby released, or by any person or persons representing, affiliated with or employed by any Party to this Agreement.
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8.
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No Drafting Party. No Party shall be deemed to be the “drafting party” of this Agreement and, consequently, this Agreement shall be construed as a whole, according to its fair meaning and intent, and not strictly for the benefit of or detriment to one Party or the other.
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9.
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Interpretation. The captions and headings of the various sections or provisions in this Agreement are solely for the convenience of the Parties and for reference, and shall not be construed in any way to interpret, define or limit the content of any provision or section hereof. In interpreting this Agreement, when applicable the singular form of any word shall mean or apply to the plural and the feminine form shall mean to apply to the masculine, and visa versa.
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10.
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Integration. This Agreement represents the entire agreement among the Parties, it supercedes all prior negotiations and agreements, and no statements, promises, or inducements made by any Party hereto not contained in this instrument shall be valid or binding.
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11.
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Amendments and Modifications. No change, amendment, or modifications to or extension of or waiver of any provisions of or consent provided under this Agreement shall be valid unless such change, amendment, modification, extension, consent, or waiver is in writing and signed by all the Parties to this Agreement, or, in the case of consent or waiver, by the Party granting the same.
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12.
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Severability. In case any section or provision of this Agreement, or in case any covenant, stipulation, obligation, agreement, act or action, or part thereof, made, assumed, entered into, or taken under this Agreement, or any application thereof, is, for any reason, held to be illegal or invalid, or is at any time inoperable by reason of any law, or actions thereunder, such illegality or invalidity or inoperability shall not affect the remainder thereof or any covenant, stipulation, obligation, agreement, act or action, or part thereof, made, assumed, entered into or taken under this Agreement, which shall, at the time, be construed and enforced as if such legal or invalid or inoperable portion were not contained therein.
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13.
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Governing Law; Jurisdiction and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of Nevada without reference to its choice of law or conflict of law provisions. The Parties agree to submit to the personal jurisdiction of the state courts of the State of Texas and agree that such courts are the required venue for the litigation of any dispute that may arise or result from this Agreement, unless all Parties agree otherwise in writing in a specific instance.
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14.
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Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Facsimile or electronically transmitted signatures shall be deemed to be effective as originals.
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[Signature page follows]
IN WITNESS WHEREOF: The Parties have executed and entered into this Agreement as of the last date written below.
NEWMARKET TECHNOLOGY, INC.
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By:
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/s/ Xxxxxx Xxxxxx
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Printed Name:
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Xxxxxx Xxxxxx
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Title:
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Chief Executive Officer
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Date:
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November 16, 2009
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By:
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/s/ Xxxx X. Xxxxxx
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Printed Name:
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Xxxx X. Xxxxxx
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Title:
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Chief Executive Officer
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Date:
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November 16, 2009
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