STOCK PURCHASE AGREEMENT by and among APEXTALK HOLDINGS, INC. a Delaware Corporation and APEXTALK, INC. a California Corporation and GLOBAL APEX HOLDINGS, INC. a Delaware Corporation and GLOBAL APEX, INC. a California Corporation and SHAREHOLDERS OF...
Exhibit 10.1
by
and among
APEXTALK
HOLDINGS, INC.
a
Delaware Corporation
and
APEXTALK,
INC.
a
California Corporation
and
GLOBAL
APEX HOLDINGS, INC.
a
Delaware Corporation
and
GLOBAL
APEX, INC.
a
California Corporation
and
SHAREHOLDERS
OF APEXTALK HOLDINGS, INC. LISTED ON EXHIBIT A
and
PURCHASERS
LISTED ON EXHIBIT B
Dated
December 14, 2009
AGREEMENT
This
Stock Purchase Agreement (this “Agreement”), is made and entered
into on this 17th day of November, 2009, is by and among, Apextalk Holdings,
Inc. (the “Company”), a Delaware corporation, having its principal place of
business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; Apextalk, Inc., a
California corporation and a wholly owned subsidiary of the Company; Global Apex
Holdings, Inc., a Delaware corporation; each of the shareholders of the Company
whose names are set forth on Exhibit A
(Collectively,
“Shareholders,” and individually, “Shareholder”), and Global Apex, Inc., a California
corporation, each of the Purchasers whose names are set forth on Exhibit
B hereto (collectively,
“Purchasers,” and individually, “Purchaser”). All parties to this Agreement are
hereinafter sometimes individually referred to as a “Party” and collectively as
the “Parties.”
RECITALS
WHEREAS, effective November
12, 2009, the Company executed a 20 for 1 reverse stock split (the “Split”) on its issued
and outstanding common stock as of the date thereof;
WHEREAS, prior to the
effectiveness of the Split, the Company had 9,194,110 shares of common stock
issued and outstanding, and as a result of the Split, the issued and outstanding
common shares of the Company were reduced to 459,706 shares.
WHEREAS, the Shareholders
desire to sell and the Purchasers desire to purchase 90% of the issued and
outstanding common stock of the Company at a purchase price of $0.724 per share
for an aggregate price of Three Hundred Thousand Dollars
($300,000).
The
Parties hereto agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF COMMON STOCK
Section
1.01 Purchase and Sale of Common
Stock. Upon the following terms and conditions, the Shareholders
agree to transfer and sell to the Purchasers, and the Purchasers shall purchase
from the Shareholders an aggregate of 413,736 shares of the common stock
representing approximately 90% of the Company’s currently outstanding shares of
common stock (the “Common Shares”) at a
purchase price per share of $0.724 for an aggregate purchase price of Three
Hundred Thousand Dollars ($300,000) (the “Purchase Price”).
Among the Common Shares, 73,000 shares (the “Registered Common
Shares”) have been registered under the Securities Act of 1933, amended,
and the remaining 386,706 shares (the “Restricted Common
Shares”) have not been registered under the Securities Act or any state
securities laws. Each Purchaser shall purchase the number of
Registered Common Shares and Restricted Common Shares set forth opposite their
respective names on Exhibit B. The
Company and the Purchasers are executing and delivering this Agreement in
accordance with and in reliance upon the exemption from securities registration
afforded by Section 4(2) of the U.S. Securities Act of 1933, as amended, and the
Regulation D promulgated under Section 4(2) of the Securities Act, and/or upon
such other exemption from the registration requirements of the Securities Act as
may be available with respect to any or all of the investments to be made
hereunder.
Section
1.02 Closing. The
Closing under this Agreement (the “Closing”) shall take
place at the offices of ▇▇▇▇▇▇ & Jaclin, LLP, ▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ upon the completion of the terms and conditions set forth
herein (the “Closing
Date).
Section 1.03 Payment Terms. The
Purchasers shall deposit a total purchase price of $300,000 into the escrow
account of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP (the “Escrow Agent”) on or
before the Closing Date. Each Purchaser shall contribute to the Purchase Price,
the dollar amount as set forth opposite their respective names in Exhibit
B.
Section 1.04 Spin-Out of Apextalk, Inc.
and Additional Consideration.
(a) Current
Company management will form a company (“Global Apex Holdings,
Inc.”) whose shareholders are identical to that of the Company and a
subsidiary company Global Apex, Inc. Pursuant to the Transaction and as
additional consideration to the Shareholders, the parties hereby agree that the
Company will transfer 70% of its equity interest in Apextalk, Inc. to Global
Apex, Inc. (the “Subsidiary
Shares”). The Company shall retain the remaining 30%
equity interest in Apextalk, Inc.
(b) As
additional consideration to the Shareholders, the Company agrees that Global
Apex Holdings shall receive cash of $30,000, for each $1,000,000 investment made
into the Company from outside investors, of up to $4,000,000 in the
aggregate. This right shall survive for a one year period following
the close of this Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to the Purchasers as follows, as of the
date hereof (or other applicable date as stated in this Section 2.1) and the
Closing Date, except as set forth on the Company Disclosure Schedules attached
hereto with each numbered Schedule corresponding to the section number
herein:
Section
2.01 Organization, Good Standing
and Power. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite corporate power to own, lease and operate its properties and
assets and to conduct its business as it is now being conducted. The Company
does not have any Subsidiaries (as defined in Section 2.6) or own securities of
any kind in any other entity except as set forth on Schedule 2.6 hereto.
The Company and each such Subsidiary is duly qualified to do business as a
foreign corporation and is in good standing in every jurisdiction in which the
nature of the business conducted or property owned by it makes such
qualification necessary except for any jurisdiction(s) (alone or in the
aggregate) in which the failure to be so qualified will not have a Material
Adverse Effect. For the purposes of this Agreement, “Material Adverse
Effect” means any effect on the business, results of operations, assets
or condition (financial or otherwise) of the Company that is material and
adverse to the Company and its Subsidiaries (as hereafter
defined)
taken as a whole, and/or any condition, circumstance, or situation that would
prohibit or otherwise materially interfere with the ability of the Company from
entering into and performing any of its obligations under the Transaction
Documents (as defined below) in any material respect; provided, however, that
Material Adverse Effect shall not be deemed to include: (i) changes in
applicable law or (ii) any effect resulting from the public announcement of the
transactions contemplated by this Agreement or the consummation of the transactions
contemplated by this Agreement.
Section
2.02 Authorization;
Enforcement. The Company has the requisite corporate power and authority
to enter into and perform this Agreement by and among the Company, the
Shareholders and the Purchasers. The execution, delivery and performance of the
Agreement by the Company and the consummation by it of the transaction
contemplated hereunder have been duly and validly authorized by all necessary
corporate action, and, except as set forth on Schedule 2.02, no
further consent or authorization of the Company, its board of directors or
shareholder is required. When executed and delivered by the Company,
the Agreement constitute a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution may be limited by federal or state securities laws
and except as such enforceability may be limited by applicable bankruptcy,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general
application.
Section 2.03 Capitalization. The
Company is authorized to issue 1,000,000,000 shares of common stock, par value
$0.001 per share (the “Common Stock”). As of
the date hereof, there are 459,706 shares of Common Stock and no shares of
preferred stock issued and outstanding. All of the outstanding shares of the
Common Stock have been duly and validly authorized and validly issued, fully
paid and nonassessable and were issued in accordance with the registration or
qualification provisions of the Securities Act, or pursuant to valid exemptions
therefrom. Except as disclosed in the Schedule 2.03, there
are not other bonds, debentures, notes or other indebtedness of the
Company having the right to vote (or convertible into, or exchangeable for,
securities having right to the vote (“Voting Company
Debt”). Except as disclosed in the Schedule 2.03, there
are not other options, warrants, rights, stock-based performance units,
commitments, contracts, arrangements or undertakings of any kind to which the
Company is a party or by which any of them is bound (a) obligating the Company
to issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity interests in, or any security
convertible or exercisable for or exchangeable into any capital stock of or
other equity interest in the Company or any Voting Company Debt, (b) obligating
the Company to issue, grant, extend or enter into any such option, warrant,
call, right, security, commitment, contract, arrangement or undertaking or (c)
that give any person the right to receive any economic benefit or right similar
to or derived from the economic benefits and rights occurring to holders of the
capital stock of the Company. As of the date of this Agreement, there are not
any outstanding contractual obligations of the Company to repurchase, redeem or
otherwise acquire any shares of capital stock of the Company.
Section
2.04 No Conflicts. The
execution, delivery and performance of the Agreement by the Company and the
consummation by the Company of the transaction contemplated hereby do not and
will not (i) violate any provision of the Company's certificate of incorporation
(the “Certificate of
Incorporation”) or bylaws (the “Bylaws”), each as
amended to date, or any Subsidiary's comparable charter documents, (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, mortgage, deed of
trust, indenture, note, bond, license, lease agreement, instrument or obligation
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries' respective properties or assets are bound,
or (iii) result in a violation of any federal, state or local statute, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any of its Subsidiaries or by
which any property or asset of the Company or any of its Subsidiaries is bound
or affected, except, in all cases, other than violations pursuant to clauses (i)
or (iii) (with respect to federal and state securities laws) above, for such
conflicts, defaults, terminations, amendments, acceleration, cancellations and
violations as would not, individually or in the aggregate, have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is required
under federal, state, foreign or local law, rule or regulation to obtain any
consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any
of its obligations under the Agreement or issue and sell the securities in
accordance with the terms hereof.
Section
2.05 Commission Documents,
Financial Statements. The Common Stock of the Company is registered
pursuant to Section 12(b) or 12(g) of the Exchange Act, and, except as disclosed
on Schedule 2.5
hereto, the Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the Securities and Exchange
Commission (the “Commission”) pursuant
to the reporting requirements of the Exchange Act, including pursuant to
Sections 13, 14 or 15(d) thereof (all of the foregoing and all exhibits included
therein and financial statement and schedules thereto, including filings
incorporated by reference therein being referred to herein as the “Commission
Documents”). At the times of their respective filings, the Form 10-Qs for
the fiscal quarter ended March 31, 2009 and June 30, 2009 (the “Form 10Qs”) and the
Form 10-K for the fiscal year ended December 31, 2008 (the “Form 10-K”) complied
in all material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission promulgated thereunder, and, to the Knowledge
of the Company, the Form 10-Qs and Form 10-K at the time of their respective
filings did not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. As of their respective dates, the financial statements of the
Company included in the Commission Documents complied as to form and substance
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules and
regulations with respect thereto. Such financial statements, together with the
related notes and schedules thereto, have been prepared in accordance with GAAP
applied on a consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the Notes thereto or (ii) in
the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed or summary statements), and fairly present in all
material respects the financial position of the Company and its Subsidiaries as
of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
Section
2.06 Subsidiaries. The
Commission Documents or Schedule 2.6 hereto
sets forth each Subsidiary of the Company, showing the jurisdiction of its
incorporation or organization and showing the percentage of each person's
ownership of the outstanding stock or other interests of such Subsidiary. For
the purposes of this Agreement, “Subsidiary” shall
mean any corporation or other entity of which at least a majority of the
securities or other ownership interest having ordinary voting power (absolutely
or contingently) for the election of directors or other persons performing
similar functions are at the time owned directly or indirectly by the Company
and/or any of its other Subsidiaries. All of the outstanding shares of capital
stock of each Subsidiary have been duly authorized and validly issued, and are
fully paid and nonassessable. Except as set forth in the Commission Documents,
there is no
outstanding preemptive, conversion or other rights, options, warrants or
agreements granted or issued by or binding upon any Subsidiary for the purchase
or acquisition of any shares of capital stock of any Subsidiary or any other
securities convertible into, exchangeable for or evidencing the rights to
subscribe for any shares of such capital stock. Neither the Company nor any
Subsidiary is subject to any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any shares of the capital stock of any Subsidiary
or any convertible securities, rights, warrants or options of the type described
in the preceding sentence except as set forth on Schedule 2.1(g)
hereto or in the Commission Documents. Except as set forth in the Commission
Documents, neither the Company nor any Subsidiary is party to, nor has any
Knowledge of, any
agreement restricting the voting or transfer of any shares of the capital stock
of any Subsidiary.
Section
2.07 No Material Adverse
Change. Since June 30, 2009, the Company has not experienced or suffered
any Material Adverse Effect, except as disclosed in the Commission Documents or
on Schedule
2.07 hereto.
Section
2.08 No Undisclosed
Liabilities. Except as disclosed in the Commission Documents or on Schedule 2.8 hereto,
since June 30, 2009, neither the Company nor any of its Subsidiaries has
incurred any liabilities, obligations, claims or losses (whether liquidated or
unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise)
that would be required to be disclosed on a balance sheet of the Company or any
Subsidiary (including the notes thereto) in conformity with GAAP and are not
disclosed in the Commission Documents, other than those incurred in the ordinary
course of the Company's or its Subsidiaries respective businesses or which,
individually or in the aggregate, are not reasonably likely to have a Material
Adverse Effect. Since June 30, 2008, except as disclosed in Commission Documents
or on Schedule
2.08 hereto, none of the Company or any of its Subsidiaries has
participated in any transaction material to the condition of the Company which
is outside of the ordinary course of its business.
Section
2.09 No Undisclosed Events or
Circumstances. Since December 31, 2008, except as disclosed in the
Commission Documents or on Schedule 2.9 hereto,
no event or circumstance has occurred or exists with respect to the Company or
its Subsidiaries or their respective businesses, properties, operations or
financial condition, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company but which has not been so
publicly announced or disclosed and which, individually or in the aggregate,
would have a Material Adverse Effect.
Section
2.10 Indebtedness. The
Commission Documents or Schedule 2.10 hereto
sets forth as of the date hereof all outstanding secured and unsecured
Indebtedness of the Company or any Subsidiary, or for which the Company or any
Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” shall
mean (a) any liabilities for borrowed money or amounts owed in excess of $5,000
(other than trade accounts payable incurred in the ordinary course of business),
(b) all guaranties, endorsements and other contingent obligations in respect of
liabilities for borrowed money of others in excess of $5,000, whether or not the
same are or should be reflected in the Company’s balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of business; and
(c) the present value of any lease payments in excess of $25,000 due under
leases required to be capitalized in accordance with GAAP. Neither the Company
nor any Subsidiary is in default with respect to any Indebtedness.
Section
2.11 Title to Assets. Each
of the Company and the Subsidiaries has good and marketable title to all of its real
and personal property reflected in the Commission Documents that is material to the
business of the Company, free and clear of any mortgages, pledges, charges,
liens, security interests or other encumbrances, except for those indicated in
the Commission Documents or on Schedule 2.11 hereto
or such that, individually or in the aggregate, do not cause a Material Adverse
Effect, and except for Permitted Liens. All such leases of the Company and each
of its Subsidiaries are valid and subsisting and in full force and effect in all
material respects. “Permitted Liens”
means (i) statutory liens for taxes, assessments and other governmental charges
which are not yet due and payable or are due but not delinquent or are being
contested in good faith by appropriate proceedings, (ii) statutory or common law
liens to secure landlords, sublandlords, licensors or sublicensors under leases
or rental agreements, (iii) deposits or pledges made in connection with, or to
secure payment of, workers’ compensation, unemployment insurance, old age
pension or other social security programs mandated under applicable laws, (iv)
statutory or common law liens in favor of carriers, warehousemen, mechanics,
workmen, repairmen and materialmen to secure claims for labor, materials or
supplies and other like liens, (v) restrictions on transfer of securities
imposed by applicable state and federal securities laws, (vi) any other
encumbrance affecting any asset which does not materially impede or otherwise
affect the ownership or operation of such asset, (vii) liens resulting from a
filing by a lessor as a precautionary filing for a true lease, (viii) deposits
to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds another obligations of a
like nature incurred in the ordinary course of business, (ix) vendor’s liens to
secure payment, or (x) rights or claims of customers or tenants under licenses
or leases.
Section
2.12 Actions Pending.
Except as set forth in the Commission Documents or on Schedule 2.12 hereto,
there is no action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or other proceeding pending or, to the Knowledge of the
Company, threatened against the Company or any Subsidiary which questions the
validity of this Agreement or any of the transactions contemplated hereby or
thereby or any action taken or to be taken pursuant hereto. Except as set forth
in the Commission Documents or on Schedule 2.12 hereto,
there is no action, suit, claim, investigation, arbitration, alternate dispute
resolution proceeding or other proceeding pending or, to the Knowledge of the
Company, threatened against or involving the Company, any Subsidiary or any of
their respective properties or assets,
which
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Except as set forth in the Commission Documents, there
are no outstanding orders, judgments, injunctions, awards or decrees of any
court, arbitrator or governmental or regulatory body against the Company or any
Subsidiary or any officers or directors of the Company or any Subsidiary in
their capacities as such, which individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
Section
2.13 Compliance with Law.
The business of the Company and the Subsidiaries has been and is presently being
conducted in accordance with all applicable federal, state and local
governmental laws, rules, regulations and ordinances, except as set forth in the
Commission Documents or on Schedule 2.13 hereto
or such that, individually or in the aggregate, the noncompliance therewith
would not reasonably be expected to have a Material Adverse Effect. The Company
and each of its Subsidiaries have all franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals necessary for
the conduct of its business as now being conducted by it unless the failure to
possess such franchises, permits, licenses, consents and other governmental or
regulatory authorizations and approvals, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
Section
2.14 Taxes. Except as set
forth in the Commission Documents or on Schedule 2.14 hereto,
and except for matters that would not, individually or in the aggregate, have or
reasonably be expected to have a Material Adverse Effect, the Company and each
of the Subsidiaries has accurately prepared and filed all federal, state and
other tax returns required by law to be filed by it, has paid all taxes shown to
be due and all additional assessments, and adequate provisions have been and are
reflected in the financial statements of the Company and the Subsidiaries for
all current taxes and other charges to which the Company or any Subsidiary is
subject and which are not currently due and payable. Except as disclosed on
Schedule 2.14
hereto, none of the federal income tax returns of the Company or any Subsidiary
has been audited by the Internal Revenue Service. The Company has no Knowledge
of any additional assessments, adjustments or contingent tax liability (whether
federal or state) of any nature whatsoever, whether pending or threatened
against the Company or any Subsidiary for any period, nor of any basis for any
such assessment, adjustment or contingency.
Section
2.15 Certain Fees. Except
as set forth on Schedule 2.15 hereto,
the Company has not employed any broker or finder or incurred any liability for
any brokerage or investment banking fees, commissions, finders' structuring
fees, financial advisory fees or other similar fees in connection with the
Transaction Documents.
Section
2.16 Disclosure. Neither
this Agreement or the Schedules hereto nor any other documents, certificates or
instruments furnished to the Purchasers by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by this Agreement
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements made herein or therein, in the
light of the circumstances under which they were made herein or therein, not
misleading.
Section
2.17 Operation of
Business. The Company and each of the Subsidiaries owns or possesses the
rights to use all patents, trademarks, domain names (whether or not registered)
and any patentable improvements or copyrightable derivative works thereof,
websites and intellectual property rights relating thereto, service marks, trade
names, copyrights, licenses and authorizations which are necessary for the
conduct of its business as now conducted, which the failure to so have would
reasonably be expected to have a Material Adverse Effect. Except as set forth in
the Commission Documents, neither the Company nor any Subsidiary has received
written notice that the intellectual property rights used by the Company or any
Subsidiary, and necessary for their respective business, violates or infringes
upon the rights of any third party.
Section
2.18 Environmental
Compliance. Except as disclosed in the Commission Documents or on Schedule 2.18 hereto,
the Company and each of its Subsidiaries have obtained all material approvals,
authorization, certificates, consents, licenses, orders and permits or other
similar authorizations of all governmental authorities, or from any other
person, that are required under any Environmental Laws, except where failure to
obtain such material approvals, authorization, certificates, consents, licenses,
orders and permits or other similar authorizations would not individually or in
the aggregate have a Material Adverse Effect. “Environmental Laws”
shall mean all applicable laws relating to the protection of the environment
including, without limitation, all requirements pertaining to reporting,
licensing, permitting, controlling, investigating or remediating emissions,
discharges, releases or threatened releases of hazardous substances, chemical
substances, pollutants, contaminants or toxic substances, materials or wastes,
whether solid, liquid or gaseous in nature, into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
material or wastes, whether solid, liquid or gaseous in nature. Except as set
forth in the Commission Documents or on Schedule 2.18 hereto,
the Company has all necessary governmental approvals required under all
Environmental Laws and used in its business or in the business of any of its
Subsidiaries, except for such instances as would not individually or in the
aggregate have a Material Adverse Effect. Except as disclosed in the Commission
Documents, the Company and each of its
Subsidiaries are also in compliance with all other limitations, restrictions,
conditions, standards, requirements, schedules and timetables required or
imposed under all Environmental Laws, except where failure to be in
compliance would
not individually or in the aggregate have a Material Adverse Effect. Except as
disclosed in the Commission Documents or for such instances as would not
individually or in the aggregate have a Material Adverse Effect, there are no
past or present events, conditions, circumstances, incidents, actions or
omissions relating to or in any way affecting the Company or its Subsidiaries
that violate or would be reasonably likely to violate any Environmental Law
after the Closing or that would be reasonably likely to give rise to any
environmental liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation (i) under any
Environmental Law or (ii) based on or related to the manufacture, processing,
distribution, use, treatment, storage (including, without limitation,
underground storage tanks), disposal, transport or handling, or the emission,
discharge, release or threatened release of any hazardous
substance.
Section
2.19 Books and Records; Internal
Accounting Controls. The records and documents of the Company and its
Subsidiaries accurately reflect in all material respects the information
relating to the business of the Company and its Subsidiaries, the location and
collection of their assets, and the nature of all transactions giving rise to
the obligations or accounts receivable of the Company or any Subsidiary. The
Company and each of its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate actions are
taken with respect to any differences and (v) accounts, notes and other
receivables and inventory are recorded accurately, and proper and adequate
procedures are implemented to effect the collection thereof on a current and
timely basis. Except as set forth on Schedule 2.17 hereto
or in the Commission Documents, there are no significant deficiencies or
material weaknesses in the design or operation of internal controls over
financial reporting that would reasonably be expected to materially and
adversely affect the Company’s ability to record, process, summarize and report
financial information, and there is no fraud, whether or not material, that
involves management or, to the Knowledge of the Company, other employees who
have a significant role in the Company’s internal controls and the Company has
provided to the Purchaser copies of any written materials relating to the
foregoing.
Section
2.20 Material Agreements.
Except as set forth in the Commission Documents or on Schedule 2.20 hereto,
or as would not be reasonably likely to have a Material Adverse Effect, (i) the
Company and each of its Subsidiaries have performed all obligations required to
be performed by them to date under any written or oral contract, instrument,
agreement, commitment, obligation, plan or arrangement, filed or required to be
filed with the Commission (the “Material
Agreements”), (ii) neither the Company nor any of its Subsidiaries has
received any notice of default under any Material Agreement and, (iii) to the
Company's Knowledge, neither the Company nor any of its Subsidiaries is in
default under any material provision of any Material Agreement.
Section
2.21 Securities Act of
1933. Neither the Company nor anyone acting on its behalf,
directly or indirectly, has or will sell, offer to sell or solicit offers to buy
any of the Common Stock or similar securities to, or solicit offers with respect
thereto from, or enter into any negotiations relating thereto with, any person,
or has taken or will take any action so as to bring the issuance and sale of any
of the Common Stock under the registration provisions of the Securities Act and
applicable state securities laws, and neither the Company nor any of its
affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
any of the Common Stock.
Section
2.22 Governmental
Approvals. Except as set forth on Schedule 2.22 hereto
or disclosed in the Commission Documents, and except for the filing of any
notice prior or subsequent to the Closing that may be required under applicable
state and/or federal securities laws (which if required, shall be filed on a
timely basis), no authorization, consent, approval, license, exemption of,
filing or registration with any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, is or will be
necessary
for, or in connection with, the execution or delivery of the Securities, or for
the performance by the Company of its obligations under the Agreement except for
such authorizations, consents, approvals, licenses, exemptions, filings or
registrations the Company’s failure of which to obtain would not, individually
or in the aggregate, constitute a Material Adverse Effect.
Section
2.23 Employees. Neither
the Company nor any Subsidiary has any collective bargaining arrangements or
agreements covering any of its employees, except as set forth on Schedule 2.23 hereto
or disclosed in the Commission Documents. Except as set forth on Schedule 2.23 hereto
or disclosed in the Commission Documents, neither the Company nor any Subsidiary
has any employment contract, agreement regarding proprietary information,
non-competition agreement, non-solicitation agreement, confidentiality
agreement, or any other similar contract or restrictive covenant, relating to
the right of any officer, employee or consultant to be employed or engaged by
the Company or such Subsidiary required to be disclosed in the Commission
Documents that is not so disclosed. Since December 31, 2008, no officer,
consultant or key employee of the Company or any Subsidiary whose termination,
either individually or in the aggregate, would be reasonably likely to have a
Material Adverse Effect, has terminated, or indicated to the Company his or her
intent to terminate, his or her employment or engagement with the Company or any
Subsidiary.
Section
2.24 Labor Relations.
Except as set forth in the Commission Documents or as could not reasonably be
expected to have a Material Adverse Effect, (i) neither the Company nor any of
its Subsidiaries is engaged in any unfair labor practice, (ii) there is no
strike, labor dispute, slowdown or stoppage pending or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries, and (iii)
neither the Company nor any of its Subsidiaries is a party to any collective
bargaining agreement or contract.
Section
2.25 Absence of Certain
Developments. Except as disclosed in the Commission Documents or on Schedule 2.25 hereto,
since June 30, 2009, neither the Company nor any Subsidiary has:
(i) issued
any stock, bonds or other corporate securities or any right, options or warrants
with respect thereto other than under the Company’s stock option plan(s)
and
otherwise
in the ordinary course of business;
(ii) borrowed
any amount or incurred or become subject to any liabilities (absolute or
contingent) except current liabilities incurred in the ordinary course of
business which are comparable in nature and amount to the current liabilities
incurred in the ordinary course of business during the comparable portion of its
prior fiscal year, as adjusted to reflect the current nature and volume of the
Company’s or such Subsidiary’s business;
(iii) discharged
or satisfied any lien or encumbrance or paid any obligation or liability
(absolute or contingent), other than Permitted Liens and current liabilities
paid in the ordinary course of business;
(iv) declared
or made any payment or distribution of cash or other property to stockholders
with respect to its stock, or purchased or redeemed, or made any agreements so
to purchase or redeem, any shares of its capital stock other than under any
equity incentive plans of the Company;
(v) sold,
assigned or transferred any other tangible assets, or canceled any debts or
claims, except in the ordinary course of business;
(vi) sold,
assigned or transferred any patent rights, trademarks, trade names, copyrights,
trade secrets or other intangible assets or intellectual property rights
necessary for the conduct of its business as presently conducted;
(vii) suffered
any material losses or waived any rights of material value, whether or not in
the ordinary course of business;
(viii) made
any changes in employee compensation except in the ordinary course of business
and consistent with past practices;
(ix) made
capital expenditures or commitments there for that aggregate in excess of
$10,000;
(x) made
charitable contributions or pledges in excess of $10,000;
(xi) experienced
any material problems with labor or management in connection with the terms and
conditions of their employment; or
(xii) entered
into an agreement, written or otherwise, to take any of the foregoing
actions.
Section
2.26 Public Utility Holding
Company Act and Investment Company Act Status. The Company is not a
“holding company” or a “public utility company” as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended. The Company is not, and
as a result of and immediately upon the Closing will not be, an “investment
company” or a company “controlled” by an “investment company,” within the
meaning of the Investment Company Act of 1940, as amended.
Section
2.27 ERISA. Except as set
forth in the Commission Documents, no liability to the Pension Benefit Guaranty
Corporation has been incurred with respect to any Plan by the Company or any of
its Subsidiaries which is or would be materially adverse to the Company and its
Subsidiaries. The execution and delivery of this Agreement and the issuance and
sale of the Securities will not involve any transaction which is subject to the
prohibitions of Section 406 of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”) or in
connection with which a tax could be imposed pursuant to Section 4975 of the
Internal Revenue Code of 1986, as amended, provided that, if any of the
Purchasers, or any person or entity that owns a beneficial interest in any of
the Purchasers, is an “employee pension benefit plan” (within the meaning of
Section 3(2) of ERISA) with respect to which the Company is a
“party in
interest” (within the meaning of Section 3(14) of ERISA), the requirements of
Sections 407(d)(5) and 408(e) of ERISA, if applicable, are met. As used in this
Section 2.1(cc), the term “Plan” shall mean an “employee pension benefit plan”
(as defined in Section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company or
any Subsidiary or by any trade or business, whether or not incorporated, which,
together with the Company or any Subsidiary, is under common control, as
described in Section 414(b) or (c) of the Code.
Section
2.28 Independent Nature of
Purchasers. The Company acknowledges that the obligations of each
Purchaser under the Agreement are several and not joint with the obligations of
any other Purchaser, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser hereby and the Company
shall not be excused from performance of its obligations to any Purchaser hereby
as a result of nonperformance or breach by any other Purchaser. The Company
acknowledges that the decision of each Purchaser to purchase Securities pursuant
to this Agreement has been made by such Purchaser independently of any other
purchaser and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Company or of its Subsidiaries which may have made or given by
any other Purchaser or by any agent or employee of any other Purchaser. The
Company acknowledges that nothing contained herein and no action taken by any
Purchaser pursuant hereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated
hereby. The Company acknowledges that each Purchaser shall be entitled to
independently protect and enforce its rights, including without limitation, the
rights arising out of this Agreement, and it shall not be necessary for any
other Purchaser to be joined as an additional party in any proceeding for such
purpose.
ARTICLE
III
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
THE
PURCHASERS
Each
Purchaser hereby represents and warrants, severally and not jointly, to the
Company and the Shareholders as follows.
Section
3.01 Power and Authority.
Each Purchaser has the legal power, capacity and authority to execute and
deliver this Agreement to consummate the transactions contemplated by this
Agreement, and to perform the Purchaser’s obligations under this
Agreement. This Agreement constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with the terms hereof.
Section
3.02 No
Conflicts. The execution and delivery of this Agreement by the
Purchaser and the performance by the Purchaser of its obligations hereunder in
accordance with the terms hereof: (a) will not require the consent of any third
party or governmental entity under any laws; (b) will not violate any laws
applicable to the Purchaser and (c) will not violate or breach any contractual
obligation to which the Purchaser is a party.
Section
3.03 Finder’s
Fee. The Purchaser represents and warrants that it has not
created any obligation for any finder’s, investment banker’s or broker’s fee in
connection with the transaction contemplated hereunder.
Section
3.04 Purchase Entirely for Own
Account. The Common Shares proposed to be purchased by the Purchaser
hereunder will be acquired for investment for its own account, and not with a
view to the resale or distribution of any part thereof, and the Purchaser has no
present intention of selling or otherwise distributing the Common Shares, except
in compliance with applicable securities laws.
Section
3.05 Sophistication. The
Purchaser is a sophisticated investor, as described in Rule 506(b)(2)(ii)
promulgated under the Securities Act and has such experience in business and
financial matters that it is capable of evaluating the merits and risk of an
investment in the Company.
Section
3.06 Legends.
The
Purchaser hereby agrees with the Company that the stock certificate(s) of
Restricted Common Shares will bear the following legend or one that is
substantially similar to the following legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS AND
NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, IN
WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AN
OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR
OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS.
Section
3.07 Additional Legend;
Consent. Additionally, the stock certificate(s) of Restricted Common
Shares will bear any legend required by the “blue sky” laws of any state to the
extent such laws are applicable to the securities represented by the certificate
so legended. The Purchaser consents to the Company making a notation on its
records or giving instructions to any transfer agent of Restricted Common Shares
in order to implement the restrictions on transfer of the Restricted Common
Shares.
Section
3.08 No Shorting. No
Purchaser has engaged in any short sales of any securities of the Company or
instructed any third parties to engage in any short sales of securities of the
Company on its behalf prior to the Closing Date. Each Purchaser covenants and
agrees that it will not be in a net short position with respect to the shares of
Common Stock issued or issuable to it.
ARTICLE
IV
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
THE
SHAREHOLDERS
Each
Shareholder hereby represents and warrants, severally and not jointly, to the
Purchasers as follows.
Section
4.01 Good
Title.
The
Shareholder is the record and beneficial owner, and has good title to its Common
Stock, with the right and authority to sell and deliver such Common
Stock. Upon delivery of any certificate or certificates duly
assigned, representing the same as herein contemplated, the Purchaser(s) will
receive good title to such Common Stock, free and clear of all
liens.
Section
4.02 Power and Authority.
The Shareholder has the legal power, capacity and authority to execute and
deliver this Agreement to consummate the transaction contemplated hereunder, and
to perform the Shareholder’s obligations under this Agreement. This
Agreement constitutes a legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with the terms
hereof.
Section
4.03 No
Conflicts. The execution and delivery of this Agreement by the
Shareholder and the performance by the Shareholder of its obligations hereunder
in accordance with the terms hereof: (a) will not require the consent of any
third party or governmental entity under any laws; (b) will not violate any laws
applicable to the Shareholder and (c) will not violate or breach any contractual
obligation to which the Shareholder is a party.
Section
4.04 Finder’s
Fee. The Shareholder represents and warrants that it has not
created any obligation for any finder’s, investment banker’s or broker’s fee in
connection with the transaction hereunder.
ARTICLE
V
COVENANTS
The
Company covenants with each Purchaser as follows, which covenants are for the
benefit of each Purchaser and their respective permitted
assignees.
Section
5.01 Securities
Compliance. The Company shall notify the Commission in accordance with
its rules and regulations, of the transaction contemplated hereunder and shall
take all other necessary action and proceedings as may be required and permitted
by applicable law, rule and regulation, for the legal and valid issuance of the
Common Shares to the Purchasers, or their respective subsequent
holders.
Section
5.02 Registration and
Listing. The Company shall use commercially reasonable efforts to (i)
cause its Common Stock to continue to be registered under Sections 12(b) or
12(g) of the Exchange Act, (ii) to comply in all respects with its reporting and
filing obligations under the Exchange Act, (iii) to comply with all requirements
related to any registration statement filed pursuant to this Agreement, and (iv)
to not take any action or file any document (whether or not permitted by the
Securities Act or the rules promulgated thereunder) to terminate or suspend such
registration or to terminate or suspend its reporting and filing obligations
under the Exchange Act or Securities Act, except as permitted herein. The
Company will use commercially reasonable efforts to continue the listing or
trading of its Common Stock on the OTC Bulletin Board or any successor market.
Subject to the terms of the Transaction Documents, the Company further covenants
that it will take such further action as the Purchasers may reasonably request,
all to the extent required from time to time to enable the Purchasers to sell
the Restricted Common Shares without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 promulgated under
the Securities Act. Upon the request of the Purchasers, the Company shall
deliver to the Purchasers a written certification of a duly authorized officer
as to whether it has complied with such requirements.
Section
5.03 Inspection Rights.
The Company shall permit, during normal business hours and upon reasonable
request and reasonable notice, each Purchaser or any employees, agents or
representatives thereof, so long as such Purchaser shall be obligated hereunder
to purchase the Common Shares or shall beneficially own any Common Stock, for
purposes reasonably related to such Purchaser's interests as a stockholder to
examine and make reasonable copies of the records and books of account of, and
visit and inspect the properties, assets, operations and business of the Company
and any Subsidiary, and to discuss the affairs, finances and accounts of the
Company and any Subsidiary with any of its officers, consultants, directors, and
key employees.
Section
5.04 Compliance with Laws.
The Company shall comply, and cause each Subsidiary to comply, with all
applicable laws, rules, regulations and orders, noncompliance with which would
be reasonably likely to have a Material Adverse Effect.
Section
5.05 Keeping of Records and Books
of Account. The Company shall keep and cause each Subsidiary to keep
adequate records and books of account, in which complete entries will be made in
accordance with GAAP consistently applied, reflecting all financial transactions
of the Company and its Subsidiaries.
Section
5.06 Reporting
Requirements. If the Company ceases to file its periodic reports with the
Commission, or if the Commission ceases making these periodic reports available
via the Internet without charge, then the Company shall, promptly after filing
with the Commission, furnish the following to each Purchaser so long as such
Purchaser shall be obligated hereunder to purchase the Securities or shall
beneficially own Shares or Warrant Shares:
(a) Quarterly
Reports filed with the Commission on Form 10-Q;
(b) Annual
Reports filed with the Commission on Form 10-K; and
(c) Copies
of all notices, information and proxy statements in connection with any
meetings, that are, in each case, provided to holders of shares of Common Stock,
contemporaneously with the delivery of such notices or information to such
holders of Common Stock.
Section
5.07 Other Agreements. The
Company shall not enter into any agreement in which the terms of such agreement
would restrict or impair the right or ability of the Company or any Subsidiary
to perform its material obligations hereunder.
Section
5.08 No Integrated
Offerings. The Company shall not make any offers or sales of any security
(other than the Securities being offered or sold hereunder) under circumstances
that would require registration of the Securities being offered or sold
hereunder under the Securities Act.
Section 5.09 Designation of New
Directors. Effective as of the Closing Date, and subject to
applicable regulatory requirements, ▇▇▇▇▇▇ Ma, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ Seo and ▇▇▇▇▇▇▇ ▇▇ shall resign from the
board of directors of the Company and Zhuanda Zeng and ▇▇▇ ▇▇▇ shall be
appointed to the board of the Company.
Section
5.10 Designation of New
Officers. Effective as of the Closing Date, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Seo, and ▇▇▇▇▇ ▇▇▇ shall resign from each officer
position held at the Company, and ▇▇▇ ▇▇▇ and ▇▇▇▇ ▇▇▇ shall be appointed as the
Chief Executive Officer and Chief Financial Officer, respectively.
ARTICLE
VI
CONDITIONS
Section
6.01 Conditions Precedent to the
Obligation of the Company and the Shareholders. The obligations hereunder
of the Company and the Shareholders at each Closing Date is subject
to the satisfaction or waiver, at or before such Closing, of the conditions set
forth below. These conditions are for the Company's sole benefit and may be
waived by the Company and Shareholders at any time in its sole
discretion.
(a) Accuracy of the Purchasers’
Representations and Warranties. The representations and warranties of
each Purchaser shall be true and correct in all material respects (except for
those representations and warranties that are qualified by materiality or
Material Adverse Effect, which shall be true and correct in all respects) as of
the date when made and as of the Closing Date, as though made at that time,
except for representations and warranties that are expressly made as of a
particular date, which shall be true and correct in all material respects
(except for those representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all
respects) as of such date.
(b) Performance by the
Purchasers. Each Purchaser shall have performed, satisfied and complied
in all material respects with all covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by such Purchaser
at or prior to the Closing Date.
(c) No Injunction. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any of
the transactions contemplated by this Agreement.
(d) Delivery of Purchase
Price. The Purchasers shall have delivered to the Company the applicable
purchase price for the Common Shares to be purchased by each
Purchaser.
Section
6.02 Conditions Precedent to the
Obligation of the Purchasers. The obligation hereunder of each Purchaser
to purchase the Common Shares consummate the transactions contemplated by this
Agreement is subject to the satisfaction or waiver, at or before each Closing
Date, of each of the conditions set forth below. These conditions are for the
Purchaser’s sole benefit and may be waived by the Purchaser at any time in its
sole discretion.
(a) Accuracy of the Company's
Representations and Warranties. Each of the representations and
warranties of the Company and the Shareholders in this Agreement shall be true
and correct in all material respects (except for those representations and
warranties that are qualified by materiality or Material Adverse Effect, which
shall be true and correct in all respects) as of the date when made and as of
the Closing Date as though made at that time, except for representations and
warranties that are expressly made as of a particular date, which shall be true
and correct in all material respects (except for those representations and
warranties that are qualified by materiality or Material Adverse Effect, which
shall be true and correct in all respects) as of such date.
(b) Performance by the Company
and Shareholders. The Company and the Shareholders shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing Date.
(c) No Suspension, Etc.
Trading in the Common Stock shall not have been suspended by the Commission or
the OTC Bulletin Board (except for any suspension of trading of limited duration
agreed to by the Company, which suspension shall be terminated prior to the
Closing), and, at any time prior to the Closing Date, trading in securities
generally as reported by Bloomberg Financial Markets (“Bloomberg”) shall not
have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by Bloomberg, or on the New
York Stock Exchange, nor shall a banking moratorium have been declared either by
the United States or New York State authorities.
(d) No Injunction. No
statute, rule, regulation, executive order, decree, ruling or injunction shall
have been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction which prohibits the consummation of any of
the transactions contemplated by this Agreement.
(e) No Proceedings or
Litigation. No action, suit or proceeding before any arbitrator or any
governmental authority shall have been commenced, and no investigation by any
governmental authority shall have been threatened, against the Company or any
Subsidiary, or any of the officers, directors or affiliates of the Company or
any Subsidiary seeking to restrain, prevent or change the transactions
contemplated by this Agreement, or seeking damages in connection with such
transactions.
(f) Opinion of Counsel.
The Purchasers shall have received an opinion of counsel to the Company, dated
the date of such Closing, substantially in the form of Exhibit C hereto,
with such exceptions and limitations as shall be reasonably acceptable to
counsel to the Purchasers.
(g) Share Certificates.
At or prior to the Closing, the Shareholders shall have delivered to the
Purchasers certificates representing the Common Shares (in such denominations as
each Purchaser may request) executed by the Company, in each case, being
acquired by the Purchasers at such Closing.
(h) Secretary's
Certificate. The Company shall have delivered to the Purchasers a
secretary's certificate, dated as of the Closing Date, as to (i) the
resolution(s) adopted by the Board of Directors approving the transactions
contemplated hereby, (ii) the Certificate of Incorporation (iii) the Bylaws,
each as in effect at such Closing, and (iv) the authority and incumbency of the
officers of the Company executing the Transaction Documents and any other
documents required to be executed or delivered in connection
therewith.
(i) Officer's
Certificate. On the Closing Date, the Company shall have delivered to the
Purchasers a certificate signed by an executive officer on behalf of the
Company, dated as of the Closing Date, confirming the accuracy of the Company's
representations, warranties and its compliance with covenants as of the Closing
Date and confirming the compliance by the Company with the conditions precedent
set forth in paragraphs (b)-(e) of this Section 6.2 as of the Closing Date
(provided that, with respect to the matters in paragraphs (d) and (e) of this
Section 6.2, such confirmation shall be based on the Knowledge of the
Company).
(j) Material Adverse
Effect. No Material Adverse Effect shall have occurred at or before the
Closing Date.
ARTICLE
VII
INDEMNIFICATION
Section
7.01 Company and Shareholder
Indemnity. The Company and the Shareholders agree, severally and
jointly, to indemnify and hold harmless the Purchasers (and their
respective directors, officers, affiliates, agents, successors and assigns) (each, a “Purchaser Indemnified
Party” and collectively, the “Purchaser Indemnified
Parties”) from and against any and all losses, liabilities, deficiencies,
costs, damages and expenses (including, without limitation, reasonable
attorneys’ fees, charges and disbursements) (“Damages”) incurred by the
Purchaser Indemnified Parties as a result of any
inaccuracy in or breach of the representations, warranties or covenants made by
the Company herein; provided, however, that the
Company shall not be liable under this Section 7.1 to a Purchaser Indemnified
Party to the extent that such Damages resulted or arose from the breach by a
Purchaser Indemnified Party of any representation, warranty, covenant or
agreement of a Purchaser Indemnified Party contained in the Transaction
Documents or the gross negligence, recklessness, willful misconduct or bad faith
of a Purchaser Indemnified Party.
Section
7.02 Indemnification
Procedure. Any party entitled to indemnification under this Article VII
(an “indemnified
party”) will give written notice to the indemnifying party of any matters
giving rise to a claim for indemnification; provided, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under this Article VII except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action, proceeding or claim is brought against an
indemnified party in respect of which indemnification is sought hereunder, the
indemnifying party shall be entitled to participate in and, unless in the
reasonable judgment of the indemnifying party a conflict of interest between it
and the indemnified party exists with respect to such action, proceeding or
claim (in which case the indemnifying party shall be responsible for the
reasonable fees and expenses of one separate counsel for the indemnified
parties), to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. In the event that the indemnifying party advises an
indemnified party that it will not contest such a claim for indemnification
hereunder, or fails, within thirty (30) days of receipt of any indemnification
notice to notify, in writing, such person of its election to defend, settle or
compromise, at its sole cost and expense, any action, proceeding or claim (or
discontinues its defense at any time after it commences such defense), then the
indemnified party may, at its option, defend, settle or otherwise compromise or
pay such action or claim. In any event, unless and until the indemnifying party
elects in writing to assume and does so assume the defense of any such claim,
proceeding or action, the indemnified party's costs and expenses arising out of
the defense, settlement or compromise of any such action, claim or proceeding
shall be losses subject to indemnification hereunder. The indemnified party
shall cooperate fully with the indemnifying party in connection with any
negotiation or defense of any such action or claim by the indemnifying party and
shall furnish to the indemnifying party all information reasonably available to
the indemnified party which relates to such action or claim. The indemnifying
party shall keep the indemnified party fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. If
the indemnifying party elects to defend any such action or claim, then the
indemnified party shall be entitled to participate in such defense with counsel
of its choice at its sole cost and expense. The indemnifying party shall not be
liable for any settlement of any action, claim or proceeding effected without
its prior written consent which shall not be unreasonably withheld.
Notwithstanding anything in this Article VI to the
contrary,
the indemnifying party shall not, without the indemnified party's prior written
consent, settle or compromise any claim or consent to entry of any judgment in
respect thereof which imposes any future obligation on the indemnified party or
which does not include, as an unconditional term thereof, the giving by the
claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such claim. The indemnification required by this Article
VI shall be made by periodic payments of the amount thereof during the course of
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred, so long as the indemnified party irrevocably
agrees to refund such moneys if it is ultimately determined by a court of
competent jurisdiction that such party was not entitled to indemnification. The
indemnity agreements contained herein shall be in addition to (a) any cause of
action or similar rights of the indemnified party against the indemnifying party
or others, and (b) any liabilities the indemnifying party may be subject to
pursuant to the law.
ARTICLE
VIII
MISCELLANEOUS
Section
8.01 Brokers. The
Company, Shareholders and Purchasers agree that there were no finders or brokers
involved in bringing the parties together or who were instrumental in the
negotiation, execution or consummation of this Agreement. The
Company, Shareholder and Purchaser each agree to indemnify each other against
any claim by any third person other than those described above for any
commission, brokerage, or finder’s fee arising from the transactions
contemplated hereby based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying party.
Section
8.02 Governing
Law. This
Agreement shall be governed by, enforced, and construed under and in accordance
with the laws of the United States of America and, with respect to the matters
of state law, with the laws of the State of Delaware. Venue for all
matters shall be in Wilmington, Delaware without giving effect to principles of
conflicts of law thereunder. Each of the parties (a) irrevocably
consents and agrees that any legal or equitable action or proceedings arising
under or in connection with this Agreement shall be brought exclusively in the
federal courts of the United States. By execution and delivery of this
Agreement, each party hereto irrevocably submits to and accepts, with respect to
any such action or proceeding, generally and unconditionally, the jurisdiction
of the aforesaid court, and irrevocably waives any and all rights such party may
now or hereafter have to object to such jurisdiction.
Section
8.03 Notices. Any
notice or other communications required or permitted hereunder
shall be in writing and shall be sufficiently given if personally
delivered to it or sent by telecopy, overnight courier or registered mail or
certified mail, postage prepaid, addressed as follows:
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If
to Apextalk Holdings, Inc. to:
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Apextalk
Holdings, Inc.
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Attn.:▇▇▇▇
▇▇▇
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▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Tel.:
(▇▇▇) ▇▇▇ ▇▇▇▇
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With
copies (which shall not constitute notice) to:
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▇▇▇▇▇▇
& Jaclin, LLP
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Attn.:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
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▇▇▇
▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Tel.:
▇▇▇-▇▇▇-▇▇▇▇
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If
to the Shareholder, to:
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At the
address of such Shareholders set forth on Exhibit A to this
Agreement
If to the
Purchaser, to
At the
address of such Shareholders set forth on Exhibit B to this
Agreement
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given (i) upon receipt, if personally delivered, (ii) on the day
after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section
8.04 Attorney’s
Fees. In the
event that either party institutes any action or suit to enforce this Agreement
or to secure relief from any default hereunder or breach hereof, the prevailing
party shall be reimbursed by the losing party for all costs, including
reasonable attorney’s fees, incurred in connection therewith and in enforcing or
collecting any judgment rendered therein.
Section
8.05 Confidentiality. Each
party hereto agrees with the other that, unless and until the transactions
contemplated by this Agreement have been consummated, it and its representatives
will hold in strict confidence all data and information obtained with respect to
another party or any subsidiary thereof from any representative, officer,
director or employee, or from any books or records or from personal inspection,
of such other party, and shall not use such data or information or disclose the
same to others, except (i) to the extent such data or information is published,
is a matter of public knowledge, or is required by law to be published; or (ii)
to the extent that such data or information must be used or disclosed in order
to consummate the transactions contemplated by this Agreement. In the
event of the termination of this Agreement, each party shall return to the other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, work papers, abstracts or other materials
relating thereto, and each party will continue to comply with the
confidentiality provisions set forth herein.
Section
8.06 Schedules;
Knowledge. Each
party is presumed to have full knowledge of all information set forth in the
other party’s schedules delivered pursuant to this Agreement.
Section
8.07 Expenses. Subject
to Section 8.04 above, whether or not the transaction is consummated, each of
Party will bear their own respective expenses, including legal, accounting and
professional fees, incurred in connection with the Exchange or any of the other
transactions contemplated hereby.
Section
8.08 Entire
Agreement. This
Agreement represents the entire agreement between the parties relating to the
subject matter thereof and supersedes all prior agreements, understandings and
negotiations, written or oral, with respect to such subject matter.
Section
8.09 Survival;
Termination. The
representations, warranties, and covenants of the respective parties shall
survive the Closing Date and the consummation of the transactions herein
contemplated for a period of two years.
Section
8.10 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
Section
8.11 Amendment or
Waiver. Every
right and remedy provided herein shall be cumulative with every other right and
remedy, whether conferred herein, at law, or in equity, and may be enforced
concurrently herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same or any other
default then, theretofore, or thereafter occurring or existing. At
any time prior to the Closing Date, this Agreement may by amended by a writing
signed by all parties hereto, with respect to any of the terms contained herein,
and any term or condition of this Agreement may be waived or the time for
performance may be extended by a writing signed by the party or parties for
whose benefit the provision is intended.
Section
8.12 Best
Efforts. Subject
to the terms and conditions herein provided, each party shall use its best
efforts to perform or fulfill all conditions and obligations to be performed or
fulfilled by it under this Agreement so that the transactions contemplated
hereby shall be consummated as soon as practicable. Each party also
agrees that it shall use its best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
this Agreement and the transactions contemplated herein.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to be
executed by their respective officers, hereunto duly authorized, as of the date
first-above written.
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Apextalk
Holding, Inc.
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By:
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/s/ ▇▇▇▇
▇▇▇
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Name:
▇▇▇▇ ▇▇▇
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Title: Chief
Executive Officer
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Apextalk,
Inc.
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By:
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/s/ ▇▇▇▇
▇▇▇
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Name:
▇▇▇▇ ▇▇▇
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Title: Chief
Executive Officer
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Global
Apex Holdings, Inc.
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By:
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/s/ ▇▇▇▇
▇▇▇
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Name: ▇▇▇▇
▇▇▇
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Title: Chief
Executive Officer
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Global
Apex, Inc.
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By:
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/s/ ▇▇▇▇
▇▇▇
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Name: ▇▇▇▇
▇▇▇
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Title: Chief
Executive Officer
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Shareholders
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Name
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Signature
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Date
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1
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▇▇▇▇
Au
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/s/ ▇▇▇▇ Au
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2
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▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
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3
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▇▇▇▇▇▇▇
▇ ▇▇▇▇
|
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇
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|
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4
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Da
▇▇▇▇ ▇▇▇
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/s/ Da ▇▇▇▇ ▇▇▇
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5
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Kanffee
Chan
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/s/ Kanffee Chan
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6
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▇▇▇▇
▇▇▇ ▇▇▇
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/s/ ▇▇▇▇ ▇▇▇ ▇▇▇
|
|
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7
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K
& K Machinery, Inc
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/s/ K & K Machinery, Inc
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8
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▇▇▇
& Associates
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/s/ ▇▇▇ & Associates
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|
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9
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▇▇▇▇▇▇
▇▇▇
|
/s/ ▇▇▇▇▇▇ ▇▇▇
|
|
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10
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
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11
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
|
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
|
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12
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Wai
Lap ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇
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/s/ Wai Lap ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇
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13
|
▇▇▇
Lap ▇▇▇▇
|
/s/ Wai Lap ▇▇▇▇
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|
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14
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▇▇▇▇▇▇▇
▇▇▇
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇
|
|
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15
|
▇▇▇▇▇▇
▇. ▇▇▇
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
|
|
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16
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▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ Corp
|
/s/ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corp
|
|
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17
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▇▇▇▇▇
▇▇▇ Huh
|
/s/ ▇▇▇▇▇ ▇▇▇ Huh
|
|
|
18
|
Bum
▇▇▇▇ ▇▇▇▇
|
/s/ Bum ▇▇▇▇ ▇▇▇▇
|
|
|
▇▇
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇
|
/s/ Beom Shik Park
|
|
|
20
|
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
|
|
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21
|
▇▇▇▇▇
▇▇▇▇▇ Seo
|
/s/ Yeong Cheol Seo
|
|
|
22
|
▇▇▇▇▇
▇▇▇ Seo
|
/s/ ▇▇▇▇▇ ▇▇▇ Seo
|
|
|
23
|
▇▇▇▇
▇▇▇ Seo
|
/s/ ▇▇▇▇ ▇▇▇ Seo
|
|
|
24
|
Bairong
Liang
|
/s/ Bairong Liang
|
|
|
25
|
Helam
▇▇▇ ▇▇▇
|
/s/ Helam ▇▇▇ ▇▇▇
|
|
|
26
|
▇▇▇▇▇▇
▇. ▇. ▇▇▇▇
|
/s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇
|
|
|
27
|
▇▇▇
▇▇▇ ▇▇▇▇
|
/s/ Sze ▇▇▇ ▇▇▇▇
|
|
|
28
|
▇▇▇
▇▇
|
/s/ ▇▇▇ ▇▇
|
|
|
29
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Equipment
& Machining Corp
|
/s/ Equipment & Machining Corp
|
|
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30
|
▇▇▇▇▇
J Law
|
/s/ ▇▇▇▇▇ J Law
|
|
|
31
|
▇▇▇▇▇▇
▇▇▇
|
/s/ ▇▇▇▇▇▇ ▇▇▇
|
|
|
32
|
▇▇▇▇▇▇
▇▇
|
/s/ ▇▇▇▇▇▇ ▇▇
|
|
|
33
|
Yangguang
Jiang
|
/s/ Yangguang Jiang
|
|
|
34
|
TLMS
International
|
/s/ TLMS International
|
|
|
35
|
▇▇▇▇▇▇▇
▇▇▇
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇
|
|
|
36
|
Global
Talker, Inc.
|
/s/ Global Talker, Inc.
|
|
|
37
|
Apex
Telecom, Inc.
|
/s/ Apex Telecom, Inc.
|
|
|
▇▇
|
▇▇▇▇▇▇
▇▇
|
/s/ ▇▇▇▇▇▇ Ma
|
|
|
39
|
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
|
/s/ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
|
|
|
40
|
▇▇▇▇▇
▇. ▇▇▇▇
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
|
|
|
41
|
▇▇▇▇▇▇
▇▇▇
|
/s/ ▇▇▇▇▇▇ ▇▇▇
|
|
42
|
▇▇▇▇▇
▇. ▇▇▇
|
/s/
▇▇▇▇▇ ▇. ▇▇▇
|
|
|
43
|
Helam
▇▇▇ ▇▇▇
|
/s/Helam
▇▇▇ ▇▇▇
|
|
|
44
|
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
|
/s/
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
|
|
|
45
|
May
Shum
|
/s/
May Shum
|
|
|
46
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
47
|
Tak
▇▇▇ ▇▇
|
/s/Tak
▇▇▇ ▇▇
|
Purchasers
|
Name
|
Signature
|
|
▇▇▇▇▇▇
▇▇▇
|
/s/ ▇▇▇▇▇▇ ▇▇▇ |
|
▇▇▇▇▇▇
▇▇▇▇▇
|
/s/
▇▇▇▇▇▇
▇▇▇▇▇
|
|
▇▇▇
▇▇▇
|
/s/
▇▇▇ ▇▇▇
|
|
ZhuanDa
Zeng
|
/s/
ZhuanDa
Zeng
|
|
▇▇
▇▇▇▇
|
/s/
▇▇ ▇▇▇▇
|