AGREEMENT FOR SHARE EXCHANGE
EXHIBIT
10.1
AGREEMENT FOR SHARE
EXCHANGE
THIS AGREEMENT FOR SHARE EXCHANGE (this
“Agreement”) is dated as of December 22, 2008, by and among (1) Chinaone
Investment Ltd., a Republic of Seychelles corporation, (“Chinaone”), (2) CHINA
SHOE HOLDINGS, INC., a Nevada corporation (the “COMPANY”), the Shareholders of
Chinaone listed in Exhibit A (“Chinaone SHAREHOLDERS”) who execute this
Agreement.
RECITALS:
THE COMPANY and Chinaone
desire to complete a share exchange transaction pursuant to which COMPANY shall
acquire all of the issued and outstanding common stock of Chinaone, a
Republic of Seychelles corporation, in exchange for the issuance of shares of
voting stock of the COMPANY; and
THE Board of Directors of the COMPANY,
the Board of Directors of Chinaone have each approved the
proposed transaction, contingent upon satisfaction prior to closing of all of
the terms and conditions of this Agreement; and
Chinaone is the ninety-five percent
(95%) owner Fuzhou Canyuan Herbal Health Drinks Co., Ltd. (“Fuzhou”), a
Sino-foreign JV registered in China.
All
PARTIES desire to make certain representations, warranties and agreements in
connection with completion of the proposed share exchange
transaction.
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
Exchanges. At the Closing (as hereinafter defined), the
COMPANY shall acquire all of the issued and outstanding common stock of
Chinaone. Consideration to be issued by the COMPANY shall be a total of
1,699,254,200 shares of its common stock (94% in the surviving entity), in which
27,118,260 shares (1.5% of the surviving entity) to be issued to certain
entities designated. The Exchanges shall take place upon the terms and
conditions provided for in this Agreement and in accordance with applicable
law. Immediately following completion of the share exchange
transaction through issuance of the Exchange Shares, the
COMPANY shall have a total of 1,807,717,242 shares of its common stock issued
and outstanding. For Federal income tax purposes, it is
intended that the Exchanges shall constitute a tax-free reorganization within
the meaning of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended (the “Code”).
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) such other date as
the parties hereto may agree (the "Closing Date"), at such time and place as the
parties hereto may agree. Such date shall be the date of Exchanges (the
"Effective Time").
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
2.1 Representations
and Warranties of the COMPANY. The COMPANY
represents and warrants to Chinaone as follows:
(a) Organization,
Standing and Power. The COMPANY is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, is a listed company on the OTC Bulletin Board of United States of
America, 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.
(b) Capital
Structure. As of the date of execution of this Agreement, the
authorized capital stock of the COMPANY consists of 310,000,000 shares of Common
Stock with a par value of USD $0.001 per share, of which
108,463,042 shares are currently issued and
outstanding. The Exchange Shares and to be issued respectively
pursuant to this Agreement shall be, when issued pursuant to the terms of the
resolution of the Board of Directors of the COMPANY approving such issuance,
validly issued, fully paid and non-assessable and not subject to preemptive
rights. Except as otherwise specified herein, as of the date of execution of
this Agreement, there are no other options, warrants, calls, agreements or other
rights to purchase or otherwise acquire from the COMPANY at any time, or upon
the happening of any stated event, any shares of the capital stock of the
COMPANY whether or not presently issued or outstanding.
(c) Certificate
of Incorporation, Bylaws, and Minute Books. The copies of the
Articles of Incorporation and of the Bylaws of the COMPANY which have been
delivered to Chinaone are true, correct and complete copies
thereof. The minute book of the COMPANY, 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 the COMPANY since the date of incorporation
and accurately reflects all transactions referred to in such minutes and
consents in lieu of meetings.
(d) Authority. The
COMPANY 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 the
COMPANY. No other corporate or shareholder proceedings on the part of
the COMPANY are necessary to authorize the Exchanges, or the other transactions
contemplated hereby.
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(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 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 the COMPANY 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 the COMPANY which violation would have a material adverse effect on the
COMPANY taken as a whole. No consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity") is required by or
with respect to the COMPANY in connection with the execution and delivery of
this Agreement by the COMPANY or the consummation by the COMPANY of the
transactions contemplated hereby.
(f) Books and
Records. The COMPANY has made and will make available for
inspection by Chinaone upon reasonable request all the books of the COMPANY
relating to the business of the COMPANY. Such books of the COMPANY
have been maintained in the ordinary course of business. All
documents furnished or caused to be furnished to Chinaone by the COMPANY are
true and correct copies, and there are no amendments or modifications thereto
except as set forth in such documents.
(g) Compliance
with Laws. The COMPANY 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)
SEC
Filings. The
COMPANY has filed all periodic reports required to be filed with the Securities
and Exchange Commission and as of the date hereof, is current in its filing
obligations.
(i) Financial
Statements and Tax Returns. Copies of the COMPANY’s audited
financial statements for the fiscal year ended December 31, 2007, its unaudited
financial statements for the period ended September 30, 2008, and of its tax
return for the fiscal year 2007 have been delivered to
Chinaone.
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(j) Litigation. There
is no suit, action or proceeding pending, or, to the knowledge of the COMPANY,
threatened against or affecting the COMPANY which is reasonably likely to have a
material adverse effect on the COMPANY, nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator outstanding
against the COMPANY having, or which, insofar as reasonably can be foreseen, in
the future could have, any such effect.
(k) Tax
Returns. The COMPANY has duly filed 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 the COMPANY.
2.2 Representations
and Warranties of Chinaone. Chinaone represents
and warrants to the COMPANY as follows:
(a)
Organization,
Standing and Power. Chinaone Investment Ltd., a
corporation duly organized, validly existing and in good standing under the laws
of Republic of Seychelles, 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.
(b) Capital
Structure. The authorized capital stock of Chinaone consists
of 1,000,000 shares of Common Stock with par value of US$1.00 per
share. As of the date of execution of this Agreement, it has a total
of one million (1,000,000) shares of common stock issued and
outstanding. All outstanding shares of Chinaone stock are validly
issued, fully paid and nonassessable and not subject to preemptive rights or
other restrictions on transfer. All of the issued and outstanding shares
of Chinaone were issued in compliance with all applicable securities
laws. Except as otherwise specified herein, there are no options,
warrants, calls, agreements or other rights to purchase or otherwise acquire
from Chinaone at any time, or upon the happening of any stated event, any shares
of the capital stock of Chinaone.
(c) Certificate
of Incorporation, Bylaws and Minute Books. The copies of the
Articles of Incorporation and of the other corporate documents of Chinaone which
have been delivered to the COMPANY are true, correct and complete copies
thereof. The minute books of Chinaone which have been made available
for inspection contain 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 Chinaone since the date of incorporation and accurately
reflect all transactions referred to in such minutes and consents in lieu of
meetings.
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(d) Authority. Chinaone
has all requisite power to enter into this Agreement and, subject to approval of
the proposed transaction by the holders of 100% of its issued and outstanding
shares which are entitled to vote to approve the proposed transaction, has the
requisite power and authority to consummate the transactions contemplated
hereby. Except as specified herein, no other corporate or shareholder
proceedings on the part of Chinaone are necessary to authorize the Exchange and
the other transactions contemplated hereby.
(e) 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 Chinaone 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 Chinaone or its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Chinaone in connection with the
execution and delivery of this Agreement by , or the consummation by Chinaone of
the transactions contemplated hereby.
(f) Financial
Statements. Copies of Fuzhou’s unaudited financial statements for the
fiscal year ended December 31, 2007, and its unaudited interim financial
statements for the period ended September 30, 2008, have been delivered to the
COMPANY. By execution of this Agreement Chinaone acknowledges and
represents that it will provide the COMPANY with financial statements
of Fuzhou for the fiscal year ended December 31, 2008, audited in
accordance with US GAAP within 60 days after the date of closing
hereunder.
(g) Books and
Records. Chinaone has made and will make available for
inspection by the COMPANY upon reasonable request all the books of account,
relating to the business of Fuzhou. Such books of account of Fuzhou have been
maintained in the ordinary course of business. All documents
furnished or caused to be furnished to the COMPANY by are true and correct
copies, and there are no amendments or modifications thereto except as set forth
in such documents.
(h) Compliance
with Laws. Fuzhou
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.
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(i) Liabilities
and Obligations. Fuzhou has no material liabilities or obligations
(absolute, accrued, contingent or otherwise) except (i) liabilities that are
reflected and reserved against on the Fuzhou financial statements that have not
been paid or discharged since the date thereof and (ii) liabilities incurred
since the date of such financial statements in the ordinary course of business
consistent with past practice and in accordance with this
Agreement.
(j) Litigation. There is no suit,
action or proceeding pending, or, to the knowledge of Chinaone threatened
against or affecting Fuzhou, which is reasonably likely to have a material
adverse effect on Fuzhou, nor is there any judgment, decree, injunction, rule or
order of any Governmental Entity or arbitrator outstanding
against Fuzhou, or which, insofar as reasonably can be foreseen, in
the future could have, any such effect.
(k) Taxes. Fuzhou has
filed or will file within the time prescribed by law (including extension of
time approved by the appropriate taxing authority) all tax returns and reports
required to be filed with all other jurisdictions where such filing is required
by law; and Fuzhou has paid, or made adequate provision for the payment of all
taxes, interest, penalties, assessments or deficiencies due and payable on, and
with respect to such periods. Chinaone knows of (i) no other tax returns or
reports which are required to be filed which have not been so filed and (ii) no
unpaid assessment for additional taxes for any fiscal period or any basis
therefore.
(l) Licenses,
Permits; Intellectual Property. Fuzhou owns or possesses in
the operation of its business all material authorizations which are necessary
for it to conduct its business as now conducted. Neither the
execution or delivery of this Agreement nor the consummation of the transactions
contemplated hereby will require any notice or consent under or have any
material adverse effect upon any such authorizations.
(m) Shares
Free and Clear. The shares of Fuzhou which Chinaone
are free and clear of any liens, claims, options, charges or encumbrances of any
nature.
(n) Unqualified
Right to Transfer Shares. Chinaone has the unqualified
right to sell, assign, and deliver the portion of the shares of Fuzhou and, upon
consummation of the transactions contemplated by this Agreement, the
COMPANY will acquire good and valid title to such shares, free and
clear of all liens, claims, options, charges, and encumbrances of whatsoever
nature.
ARTICLE
III
COVENANTS
RELATING TO CONDUCT OF BUSINESS
3.1 Covenants
of Chinaone and THE COMPANY. During the period from
the date of this Agreement and continuing until the Effective
Time, Chinaone and the COMPANY each agree as to themselves (except as
expressly contemplated or permitted by this Agreement, or to the extent that the
other party shall otherwise consent in writing):
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(a) Ordinary
Course. Each of the COMPANY and Fuzhou shall carry on its
respective businesses in the usual, regular and ordinary course in substantially
the same manner as heretofore conducted.
(b) Dividends;
Changes in Stock. Neither the COMPANY, nor Fuzhou
shall (i) declare or pay any dividends on or make other distributions in respect
of any of its capital stock, or (ii) repurchase or otherwise acquire, or permit
any subsidiary to purchase or otherwise acquire, any shares of its capital
stock.
(c) Issuance
of Securities. Except for issuance of shares upon
exercise of currently outstanding options, neither the COMPANY nor Fuzhou shall
issue, deliver or sell, or authorize or propose the issuance, delivery or sale
of, any shares of its capital stock of any class, any voting debt or any
securities convertible into, or any rights, warrants or options to acquire, any
such shares, voting debt or convertible securities.
(d) Governing
Documents. Neither the COMPANY nor Fuzhou shall
amend or propose to amend its Articles of Incorporation or Bylaws.
(e) No
Dispositions. Except for the transfer of assets in the
ordinary course of business consistent with prior practice, neither the COMPANY
nor Fuzhou shall sell, lease, encumber or otherwise dispose of, or agree to
sell, lease, encumber or otherwise dispose of, any of its assets, which are
material, individually or in the aggregate, to such party.
(f) Indebtedness. Neither
the COMPANY nor Fuzhou shall incur any indebtedness for borrowed money or
guarantee any such indebtedness or issue or sell any debt securities or warrants
or rights to acquire any debt securities of such party or guarantee any debt
securities of others other than in each case in the ordinary course of business
consistent with prior practice.
3.2 Other
Actions. No party shall take any action that would or is
reasonably likely to result in any of its representations and warranties set
forth in this Agreement being untrue as of the date made (to the extent so
limited), or in any of the conditions to the Exchange set forth in Article V not
being satisfied.
ARTICLE
IV
ADDITIONAL
AGREEMENTS AND RELATED TRANSACTIONS
4.1 Restricted
the COMPANY Shares. The Chinaone Exchange
Shares will not be registered under the Securities Act, but will be issued
pursuant to applicable exemptions from such registration requirements for
transactions not involving a public offering and/or for transactions which
constitute “offshore transactions” as defined in Regulation S under the
Securities Act of 1933. Accordingly, the Chinaone Exchange
Shares will constitute "restricted securities" for purposes of the
Securities Act and the holders of the Chinaone
Exchange Shares will not be able to transfer such shares except upon compliance
with the registration requirements of the Securities Act or in reliance upon an
available exemption therefrom. The certificates evidencing
the Chinaone Exchange Shares shall contain a legend to the foregoing effect
and the holders of such shares shall deliver at Closing an Investment Letter
acknowledging the fact that the Exchange Shares are restricted securities
and agreeing to the foregoing transfer restrictions.
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4.2 Access to
Information.
Upon
reasonable notice, the COMPANY and Chinaone shall each afford to the officers,
employees, accountants, counsel and other representatives of the other company,
access to all the respective properties, books, contracts, commitments and
records of the COMPANY and Chinaone and, during such period, each of
the COMPANY and Chinaone shall furnish promptly to the other (a) a
copy of each report, schedule, registration statement and other document of the
COMPANY and Fuzhou 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.
4.3 Legal
Conditions to Exchange. Each of the COMPANY and Chinaone shall
take all reasonable actions necessary to comply promptly with all legal
requirements which may be imposed on itself with respect to the Exchanges 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 Exchanges. 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 the COMPANY, Chinaone or any of their
related entities or subsidiaries in connection with the Exchanges or the taking
of any action contemplated thereby or by this Agreement.
4.4 The
COMPANY Board of Directors and Officers. The current directors
of the COMPANY shall resign after appointing successors designated
by Chinaone and after the COMPANY shall have taken the steps
necessary to notify shareholders of the change of directors through filing with
the SEC and mailing to the shareholders of record the information required by
Rule 14f-1 under the Securities Exchange Act of 1934.
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4.5 Current
Subsidiary of THE COMPANY. The COMPANY shall, simultaneously
with execution of this Agreement, enter into an agreement for disposition of its
interest in Wholly Success Technology Group Limited, its wholly owned
subsidiary. Such agreement shall provide for closing of the sale or
disposition of WHOLLY SUCCESS TECHNOLOGY GROUP LIMITED, simultaneously with, or
as soon as reasonably possible after, the Closing of the share exchange under
the terms of this Agreement. The plan should be acceptable, and the
COMPANY can avoid being considered a shell as long as the contract respectively
signed by Chianone is material and Chinaone has a specific plan to proceed with
implementation of its business.
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 Exchanges shall be
conditional upon the filing, occurring or obtainment of all authorizations,
consents, orders or approvals of, or 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 the COMPANY. The obligation of the COMPANY
to effect the Exchanges is subject to the satisfaction of the following
conditions on or before the Closing Date unless waived by the
COMPANY:
(a) Representations
and Warranties. The representations and warranties
of Chinaone set forth in this Agreement shall be true and correct in all
material 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.
(b) Performance
of the Obligations of Chinaone. Chinaone shall have performed in all
material respects all their respective obligations required to be performed by
them under this Agreement at or prior to the Closing Date.
(c) Closing
Documents. The COMPANY shall have received such closing
documents as counsel for the COMPANY shall reasonably request.
(d)
Consents. Chinaone
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 the COMPANY,
individually or in the aggregate, have a material adverse effect
on Chinaone and its related entities taken as a whole upon the
consummation of the transactions contemplated hereby. Chinaone shall also have
received the approval of its shareholders in accordance with applicable
law.
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(f) Due
Diligence Review. The COMPANY shall have completed to its
reasonable satisfaction a review of the business, operations, finances, assets
and liabilities of Fuzhou and shall not have determined that any of
the representations or warranties of Chinaone contained herein are,
as of the date hereof or the Closing Date, inaccurate in any material respect or
that Chinaone 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 the
COMPANY, made in good faith, would make the consummation of the Exchanges
imprudent. In addition, there shall not be any other litigation or
other proceeding pending or threatened against Fuzhou, the consequences of
which, in the judgment of the COMPANY, could be materially adverse to
Fuzhou.
5.3 Conditions
to Obligations of Chinaone. The obligation of
Chinaone to effect the Exchange is subject to the satisfaction of the following
conditions unless waived by Chinaone:
(a) Increase
in Authorized Capital. Prior to Closing Date, the shareholders
of the COMPANY shall approve the increase of the authorized share capital of
COMPANY from 300,000,000 to 20,000,000,000.
(b) Approval
of Allotment. Prior to Closing Date, the Board of Directors of
the COMPANY shall pass the director’s resolution to approve the allotment of
17,233,332,000 shares of the Company common shares at par value per
share.
(c) The
COMPANY’s liabilities. The COMPANY shall not have any debts or
liabilities, except legal and transfer agent fees (US$10,000) and accounting
fees (US$33,000).
(d) Representations
and Warranties. The
representations and warranties of the COMPANY set forth in this Agreement shall
be true and correct in all material 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, Chinaone shall have received a
certificate signed on behalf of the COMPANY by the President to such
effect.
(e) Performance
of Obligations of the COMPANY. The COMPANY 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, and Chinaone shall have
received a certificate signed on behalf of the COMPANY by the President to such
effect.
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(f) Closing
Documents. Chinaone shall have received such
certificates and other closing documents as counsel for Chinaone shall
reasonably request.
(g) Consents. The
COMPANY shall have obtained the consent or approval of each person whose consent
or approval shall be required in connection with the transactions contemplated
hereby.
(h) Due
Diligence Review. Chinaone shall have completed to its
reasonable satisfaction a review of the business, operations, finances, assets
and liabilities of the COMPANY and shall not have determined that any of the
representations or warranties of the COMPANY contained herein are, as of the
date hereof or the Closing Date, inaccurate in any material respect or that the
COMPANY is otherwise in violation of any of the provisions of this
Agreement.
(i) 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
Chinaone, 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 the COMPANY the consequences of
which, in the judgment of Chinaone, could be materially adverse to the
COMPANY.
ARTICLE
VI
TERMINATION
AND AMENDMENT
6.1 Termination. This
Agreement may be terminated at any time prior to the Effective
Time:
(a) by
overall consent of the COMPANY and Chinaone;
(b) by
any of the COMPANY or Chinaone if there has been a material breach of any
representation, warranty, covenant or agreement on the part of the other set
forth in this Agreement which breach has not been cured within five (5) 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 Exchanges shall have become final and
non-appealable; or
(c) by
any of the COMPANY or Chinaone, if the Exchanges shall not have been consummated
before December 22, 2008.
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6.2 Effect of
Termination. In the event of termination of this Agreement by
any of Chinaone or the COMPANY 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 the agreement of THE COMPANY and Chinaone, provided
that any such amendment must authorized by their respective Boards of Directors,
and to the extent required by law, approved by their respective
shareholders. 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 Effective Time, 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, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective Time
for a period of three years from the date of this Agreement.
7.2 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed) 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 the COMPANY:
|
0000
Xxxxx Xxxxx Xxxx
Xxxxx
Xxxxxx, XX 00000
XXX
|
|
(b)
|
If to
Chinaone:
|
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX, X0X, 0X0
Xxxxxx
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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. 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.
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 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.
13
IN WITNESS WHEREOF, this
Agreement for Share Exchange has been signed by the parties set forth below as
of the date set forth above.
|
Chinaone
Investment Ltd.
By:
/s/ Xxxx Xxx Xxxx Xx, President
Date
12/26/08
|
|
|
By:
/s/ Gu Xianzhong, President
Date
12/26/08
|
14
