EX-2.1 2 gpdocs12496696v4clceclifford.htm AGREEMENT FOR SHARE EXCHANGE AGREEMENT FOR SHARE EXCHANGE
This AGREEMENT FOR SHARE EXCHANGE (this “Agreement”) is made effective on December 31, 2008, by and among Xxxxxxxx China Estates, Inc., a Nevada corporation (“CLCE”) and Xxxxxxxx Manufacturing Co. Ltd. (“Xxxxxxxx Mfg.”).
RECITALS
WHEREAS, CLCE and Xxxxxxxx Mfg. desire to complete a transaction whereby Xxxxxxxx Mfg. shall acquire all of the equity ownership of Parkade International Ltd., a British Virgin Islands holding company (“Parkade”) in exchange for causing to be delivered to CLCE a certain number of the issued and outstanding shares of the capital stock of CLCE from certain affiliates of Xxxxxxxx Mfg. as described in this Agreement; and
WHEREAS, The Board of Directors of CLCE and the Board of Directors of Xxxxxxxx Mfg. have each approved the proposed transaction, contingent upon satisfaction prior to closing of all of the terms and conditions of this Agreement.
THE PARTIES desire to make certain representations, warranties and agreements in connection with completion of the transactions described above.
NOW, THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral part of this Agreement, and the covenants, conditions, representations and warranties hereinafter set forth, the parties hereby agree as follows:
ARTICLE I
THE EXCHANGE
1.1
The Exchange. At the Closing (as hereinafter defined), Xxxxxxxx Mfg. shall acquire 100% ownership of the issued and outstanding capital stock of Parkade, which are currently held by CLCE (the “Parkade Shares”). As consideration for the Parkade Shares, Xxxxxxxx Mfg. shall cause each of the following to be delivered to CLCE by the herein described affiliates of Xxxxxxxx Mfg. (collectively, the “Exchange Shares”): (a) 43,881,200 shares of CLCE’s common stock, par value $0.001 per share (“Common Shares”) and 2,111,880 shares of the CLCE’s Series A Preferred Stock, par value $0.001 per share (“Series A Preferred Shares”) held of record by Billion Express International Ltd. (“Billion Express”), and (ii) 4,092,000 Common Shares and 2,888,120 Series A Preferred Shares, held of record by Profit Garden International Ltd. (“Profit Garden”). The delivery of the Parkade Shares to Xxxxxxxx Mfg. and the Exchange Shares to CLCE will be referred to herein as the “Exchange.” The Exchange shall take place upon the terms and conditions provided for in this Agreement and in accordance with applicable law.
1.2
Closing and Effective Time. Subject to the provisions of this Agreement, the parties shall hold a closing (the "Closing") on (i) the first business day on which the last of the conditions set forth in Article V to be fulfilled prior to the Closing is fulfilled or waived or (ii) at such time and place as the parties hereto may agree. Such date shall be the date of Exchange (the "Effective Time").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1
Representations and Warranties of CLCE. CLCE represents and warrants to Xxxxxxxx Mfg. as follows:
(a)
Organization, Standing and Power. CLCE is a corporation duly organized and validly existing under the laws of the State of Nevada, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary.
(b)
Capital Structure. CLCE holds all of the issued and outstanding capital stock of Parkade. As of the date of execution of this Agreement, the authorized capital stock of CLCE consists of 225,000,000 shares of Common Stock and 5,000,000 shares of Series A Preferred Shares. CLCE has no other options, warrants, calls, agreements or other rights to purchase or otherwise acquire from CLCE at any time, or upon the happening of any stated event, any shares of the capital stock of CLCE whether or not presently issued or outstanding.
(c)
Articles of Incorporation, Bylaws, and Minute Books. The copies of the Articles of Incorporation and of the Bylaws of CLCE which have been delivered to Xxxxxxxx Mfg. are true, correct and complete copies thereof. The minute book of CLCE, which has been made available for inspection, contains accurate minutes of all meetings and accurate consents in lieu of meetings of the Board of Directors (and any committee thereof) and of the shareholders of CLCE since the date of incorporation and accurately reflects all transactions referred to in such minutes and consents in lieu of meetings.
(d)
Authority. CLCE has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Board of Directors of CLCE. No other corporate or shareholder proceedings on the part of CLCE are necessary to authorize the Exchange, or the other transactions contemplated hereby.
(e)
Conflict with Other Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a material right of termination, cancellation or acceleration of any obligation or the loss of a material benefit under, or the creation of a lien, pledge, security interest or other encumbrance on assets (any such conflict, violation, default, right of termination, cancellation or acceleration, loss or creation, a "violation") pursuant to any provision of the Articles of Incorporation or Bylaws or any organizational document of CLCE or, result in any violation of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to CLCE which violation would have a material adverse effect on CLCE taken as a whole. No consent, approval, order or authorization of, or registration, declaration or filing with, any
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court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity") is required by or with respect to CLCE in connection with the execution and delivery of this Agreement by CLCE or the consummation by CLCE of the transactions contemplated hereby.
(f)
Books and Records. CLCE has made and will make available for inspection by Xxxxxxxx Mfg. upon reasonable request all the books of CLCE relating to the business of CLCE. Such books of CLCE have been maintained in the ordinary course of business. All documents furnished or caused to be furnished to Xxxxxxxx Mfg. by CLCE are true and correct copies, and there are no amendments or modifications thereto except as set forth in such documents.
(g)
Compliance with Laws. CLCE is and has been in compliance in all material respects with all laws, regulations, rules, orders, judgments, decrees and other requirements and policies imposed by any Governmental Entity applicable to it, its properties or the operation of its businesses.
(h)
Litigation. There is no suit, action or proceeding pending, or, to the knowledge of CLCE, threatened against or affecting CLCE which is reasonably likely to have a material adverse effect on CLCE, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against CLCE having, or which, insofar as reasonably can be foreseen, in the future could have, any such effect.
(i)
Tax Returns. Except for U.S. federal income tax returns for 2006 and 2007 which will not be filed as of the Effective Time, CLCE has duly filed or will file prior to Closing any tax reports and returns required to be filed by it and has fully paid all taxes and other charges claimed to be due from it by any federal, state or local taxing authorities. There are not now any pending questions relating to or claims asserted for, taxes or assessments asserted upon CLCE.
(j)
Parkade Shares Free and Clear. The Parkade Shares are free and clear of any liens, claims, options, charges or encumbrances of any nature.
(k)
Unqualified Right to Transfer Parkade Shares. CLCE has the unqualified right to sell, assign, and deliver the Parkade Shares to Xxxxxxxx Mfg. and, upon consummation of the transactions contemplated by this Agreement, Xxxxxxxx Mfg. will acquire good and valid title to the Parkade Shares, free and clear of all liens, claims, options, charges, and encumbrances of whatsoever nature.
2.2
Representations and Warranties of Xxxxxxxx Mfg. Xxxxxxxx Mfg. represents and warrants to CLCE as follows:
(a)
Organization, Standing and Power. Xxxxxxxx Mfg. is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and Xxxxxxxx Mfg. has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted, and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary
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except for any such failure, which when taken together with all other failures, is not likely to have a material adverse effect on the business of Xxxxxxxx Mfg. taken as a whole. For purpose of this Agreement, “material adverse effect” shall mean, when used in this Agreement with respect to any of the parties to this Agreement, the result of one or more events, charges or effects which, individually or in the aggregate, would have a material adverse effect or impact on the business, assets, results of operations, intellectual property rights, prospects or financial condition of such party, taken as a whole, or is reasonably likely to delay or prevent the consummation of the transactions contemplated hereby.
(b)
Capital Structure. There are no options, warrants, calls, agreements or other rights to purchase or otherwise acquire from any party at any time, or upon the happening of any stated event, any share of the capital stock of Xxxxxxxx Mfg.
(c)
Authority. Xxxxxxxx Mfg. has all requisite power and authority to enter into this Agreement and has the requisite power and authority to consummate the transactions contemplated hereby. No other corporate or shareholder proceedings on the part of Xxxxxxxx Mfg. is necessary to authorize the Exchange and the other transactions contemplated hereby.
(d)
Conflict with Agreements; Approvals. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, conflict with, or result in any violation of any provision of the Certificate of Incorporation or Bylaws of Xxxxxxxx Mfg. or of any loan or credit agreement, note, mortgage, indenture, lease, benefit plan or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Xxxxxxxx Mfg., or its properties or assets except for any such conflict or violation, which when taken together with all other conflict or violation, is not likely to have a material adverse effect on the business of Xxxxxxxx Mfg. taken as a whole. No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required by or with respect to Xxxxxxxx Mfg. in connection with the execution and delivery of this Agreement by Xxxxxxxx Mfg. or the consummation by Xxxxxxxx Mfg. of the transactions contemplated hereby.
(e)
Exchange Shares Free and Clear. The Exchange Shares held by each of Billion Express and Profit Garden are free and clear of any liens, claims, options, charges or encumbrances of any nature.
(f)
Unqualified Right to Transfer Exchange Shares. Billion Express and Profit Garden each has the unqualified right to sell, assign, and deliver the Exchange Shares held by it to CLCE and, upon consummation of the transactions contemplated by this Agreement, CLCE will acquire good and valid title to the Exchange Shares, free and clear of all liens, claims, options, charges, and encumbrances of whatsoever nature.
(g)
Agreement and Transaction Duly Authorized. Each of Billion Express and Profit Garden is authorized to execute and deliver this Agreement and to consummate the Exchange and the other transactions described herein. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation or default under any term or provision of any contract,
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commitment, indenture, other agreement or restriction of any kind or character to which Billion Express or Profit Garden is a party or by which either of them is bound.
(h)
Share Ownership. Billion Express and Profit Garden collectively hold the Exchange Shares in the amounts described in Section 1.1 of this Agreement.
ARTICLE III
COVENANT
3.1
Delivery of Financial Statements. Following the Effective Time and the closing of the transactions contemplated by this Agreement, CLCE shall provide Xxxxxxxx Mfg. with all financial statements of Parkade (i) through December 31, 2008 and (ii) through the period until all transactions related to the transactions set forth herein are completed.
ARTICLE IV
ADDITIONAL AGREEMENTS AND RELATED TRANSACTIONS
4.1
Access to Information. Upon reasonable notice, CLCE and Xxxxxxxx Mfg. shall each afford to the officers, employees, accountants, counsel and other representatives of the other company access to all their respective properties, books, contracts, commitments and records and, during such period, each of CLCE and Xxxxxxxx Mfg. shall furnish promptly to the other (a) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its business, properties and personnel as such other party may reasonably request. Unless otherwise required by law, the parties will hold any such information which is nonpublic in confidence until such time as such information otherwise becomes publicly available through no wrongful act of either party, and in the event of termination of this Agreement for any reason each party shall promptly return all nonpublic documents obtained from any other party, and any copies made of such documents, to such other party.
4.2
Legal Conditions to Exchange. Each of CLCE and Xxxxxxxx Mfg. shall take all reasonable actions necessary to comply promptly with all legal requirements which may be imposed on itself with respect to the Exchange and will promptly cooperate with and furnish information to each other in connection with any such requirements imposed upon any of them or upon any of their related entities or subsidiaries in connection with the Exchange. Each party shall take all reasonable actions necessary to obtain (and will cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity or other public or private third party, required to be obtained or made by CLCE, Xxxxxxxx Mfg. or any of their related entities or subsidiaries in connection with the Exchange or the taking of any action contemplated thereby or by this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1
Conditions to Each Party's Obligation to Effect the Exchange. The respective obligations of each party to effect the Exchange shall be conditional upon the filing, occurring or obtainment of all authorizations, consents, orders or approvals of, or
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declarations or filings with, or expirations of waiting periods imposed by any governmental entity or by any applicable law, rule, or regulation governing the transactions contemplated hereby.
5.2
Conditions to Obligations of CLCE. The obligation of CLCE to effect the Exchange is subject to the satisfaction of the following conditions on or before the Closing Date unless waived by CLCE:
(a)
Representations and Warranties. The representations and warranties of Xxxxxxxx Mfg. set forth in this Agreement shall be true and correct in all respects as of the date of this Agreement and (except to the extent such representations and warranties speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, and Xxxxxxxx Mfg., Billion Express and/or Profit Garden shall complete all government and legal process to transfer 100% of the ownership of the Exchange Shares from Billion Express and Profit Garden to CLCE.
(b)
Tradability. The Common Stock of CLCE shall remain listed for trading on the OTC Bulletin Board and CLCE shall not have received any notice that its Common Stock is subject to being delisted therefrom.
(c)
Performance of Obligations of Xxxxxxxx Mfg. Xxxxxxxx Mfg. shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing.
(d)
Closing Documents. CLCE shall have received all closing documents as counsel for CLCE shall reasonably request.
(e)
Consents. Xxxxxxxx Mfg. shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby under any loan or credit agreement, note, mortgage, indenture, lease or other agreement or instrument, except those for which failure to obtain such consents and approvals would not, in the reasonable opinion of CLCE, individually or in the aggregate, have a material adverse effect on CLCE and of its subsidiaries and related entities taken as a whole upon the consummation of the transactions contemplated hereby.
(f)
Due Diligence Review. CLCE shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of Xxxxxxxx Mfg. and shall not have determined that any of the representations or warranties of Xxxxxxxx Mfg. contained herein are, as of the date hereof or the Closing, inaccurate in any material respect or that Xxxxxxxx Mfg. is otherwise in violation of any of the provisions of this Agreement.
(g)
Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of CLCE, made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against Xxxxxxxx Mfg., the consequences of which, in the judgment of CLCE, could be materially adverse to CLCE.
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5.3
Conditions to Obligations of Xxxxxxxx Mfg. The obligations of Xxxxxxxx Mfg. to effect the Exchange is subject to the satisfaction of the following conditions unless waived by Xxxxxxxx Mfg.:
(a)
Representations and Warranties. The representations and warranties of CLCE set forth in this Agreement shall be true and correct in all respects as of the date of this Agreement and (except to the extent such representations speak as of an earlier date) as of the Closing Date as though made on and as of the Closing Date, except as otherwise contemplated by this Agreement, Xxxxxxxx Mfg. shall have received a certificate signed on behalf of CLCE by the President to such effect.
(b)
Performance of Obligations of CLCE. CLCE shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date.
(c)
Closing Documents. Xxxxxxxx Mfg. shall have received all other closing documents as counsel for Xxxxxxxx Mfg. shall reasonably request.
(d)
Consents. CLCE shall have obtained the consent or approval of each person whose consent or approval shall be required in connection with the transactions contemplated hereby.
(e)
Due Diligence Review. Xxxxxxxx Mfg. shall have completed to its reasonable satisfaction a review of the business, operations, finances, assets and liabilities of CLCE and shall not have determined that any of the representations or warranties of CLCE contained herein are, as of the date hereof or the Closing Date, inaccurate in any material respect or that CLCE is otherwise in violation of any of the provisions of this Agreement.
(f)
Pending Litigation. There shall not be any litigation or other proceeding pending or threatened to restrain or invalidate the transactions contemplated by this Agreement, which, in the sole reasonable judgment of Xxxxxxxx Mfg., made in good faith, would make the consummation of the Exchange imprudent. In addition, there shall not be any other litigation or other proceeding pending or threatened against CLCE the consequences of which, in the judgment of Xxxxxxxx Mfg., could be materially adverse to Xxxxxxxx Mfg.
ARTICLE VI
TERMINATION AND AMENDMENT
6.1
Termination. This Agreement may be terminated at any time prior to the Effective Time:
(a)
by mutual consent of CLCE and Xxxxxxxx Mfg.;
(b)
by either CLCE or Xxxxxxxx Mfg. if there has been a material breach of any representation, warranty, covenant or agreement on the part of CLCE or Xxxxxxxx Mfg., as the case may be set forth in this Agreement which breach has not been cured within five (5)
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business days following receipt by the breaching party of notice of such breach, or if any permanent injunction or other order of a court or other competent authority preventing the consummation of the Exchange shall have become final and non-appealable.
6.2
Effect of Termination. In the event of termination of this Agreement by either CLCE or Xxxxxxxx Mfg. as provided in Section 6.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party hereto. In such event, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses.
6.3
Amendment. This Agreement may be amended by mutual agreement of CLCE and Xxxxxxxx Mfg. Any such amendment must be by an instrument in writing signed on behalf of each of the parties hereto.
6.4
Extension; Waiver. At any time prior to the Closing, the parties hereto, by action taken or authorized by their respective Board of Directors, may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties contained herein or in any document delivered pursuant hereto, and (c) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of such party.
ARTICLE VII
GENERAL PROVISIONS
7.1
Survival of Representations, Warranties and Agreements. All of the representations and warranties in this Agreement, or in any agreement, document, certificate or instrument delivered pursuant to this Agreement, shall terminate effective as of the Effective Time and will have no force and effect following the Effective Time. The covenants and other agreements in this Agreement, or in any agreement, document, certificate or instrument delivered pursuant to this Agreement shall survive the Effective Time until the applicable covenant or agreement has been fulfilled.
7.2
Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
(a) If to Xxxxxxxx Mfg.:
0/X, Xxxx Xxx Xxxxxxxxxx Xxxx, Xxxxx 2,
70 Wing Tai Road, Chai Wan,
Hong Kong
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(b) If to CLCE:
Xxxx 0000
Xxxxx 0
Xxxxx Xxxxx
Xxxxxx Xxx
Xxxx Xxxx
With a copy to:
Xxxxxxx & Xxxx, X.X.
175 East 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
7.3
Interpretation. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". The phrase "made available" in this Agreement shall mean that the information referred to has been made available if requested by the party to whom such information is to be made available.
7.4
Counterparts; Facsimile Signature Pages. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. Copies of the signature pages of this Agreement delivered by facsimile will have the force and effect of originals.
7.5
Entire Agreement; No Third Party Beneficiaries; Rights of Ownership. This Agreement (including the documents and the instruments referred to herein) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, and is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
7.6
Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Nevada without regard to principles of conflicts of law. Each party hereby irrevocably submits to the jurisdiction of any Nevada state court or any federal court in the State of Nevada in respect of any suit, action or proceeding arising out of or relating to this Agreement, and irrevocably accept for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts.
7.7
No Remedy in Certain Circumstances. Each party agrees that, should any court or other competent authority hold any provision of this Agreement or part hereof or thereof to be null, void or unenforceable, or order any party to take any action inconsistent herewith
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or not to take any action required herein, the other party shall not be entitled to specific performance of such provision or part hereof or thereof or to any other remedy, including but not limited to money damages, for breach hereof or thereof or of any other provision of this Agreement or part hereof or thereof as a result of such holding or order.
7.8
Publicity. Except as otherwise required by law or the rules of the SEC, so long as this Agreement is in effect, no party shall issue or cause the publication of any press release or other public announcement with respect to the transactions contemplated by this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld.
7.9
Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
[Remainder of page intentionally left blank; signature page to follow.]
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IN WITNESS WHEROF, this Agreement for Share Exchange has been signed to be made effective as of the date set forth above.
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XXXXXXXX CHINA ESTATES, INC., a Nevada corporation
/s/ Xxxxxxxx X.X. Xxxx | ||
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Xxxxxxxx X.X. Xxxx, CEO | ||
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XXXXXXXX MANUFACTURING CO., LTD. | ||
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/s/ Xxxxxxxx X.X. Xxxx | ||
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Xxxxxxxx X.X. Xxxx, CEO | ||
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