SHARE EXCHANGE AGREEMENT
Exhibit
10.1
This
SHARE EXCHANGE AGREEMENT, dated December 31, 2008 (“Agreement”) is entered by
and among Masterise Holdings, Ltd., a limited liability company organized under
the laws of British Virgin Islands, whose address is Xxxx 000, Xxxxxxxx Xxxxxx,
00 Xxxxxx Xxxx Xxxx, Xxxxxxx, Xxxx Xxxx (“Masterise”), Geostar Mineral
Corporation , a Nevada corporation whose address is #15 Dovga Storona Street,
Gologory Village, Zolochivskij Region, Lvivska Oblast, Ukraine
80736 (“GEOS”), Titan Technology Development Limited a limited
liability company organized under the laws of Hong Kong, whose address is Room
1903, Xxxx Xxx Xxxxxxxxxx Xxxxxx, 000 Xxx Xxxxx Xxxx Xxxxxxx, Xxxx Xxxx
(“Titan”), and XXXX Xxx, an individual, whose address is Block A,
Long Xxxxx Xx Fa Industrial park, Long Gang, Shenzhen, China (Titan
and XXXX Xxx being the sole shareholders of Masterise hereinafter collectively
the “Masterise Shareholders”).
WHEREAS,
Masterise Shareholders own 100% of the issued and outstanding shares of common
stock of Masterise (the "Masterise
Shares");
WHEREAS,
Masterise Shareholders believe that it is in its best interests to exchange the
Masterise Shares for Fifty Thousand (50,000) shares of common stock of GEOS, par
value $ 0.00001 per share (“GEOS Shares”), and GEOS
believes it is in its best interests to acquire the Masterise Shares in exchange
for GEOS Shares, upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS,
it is the intention of the parties that: (i) GEOS shall acquire 100% of the
Masterise Shares in exchange solely for the GEOS Shares set forth herein; (ii)
said exchange of shares shall qualify as a tax-free reorganization under Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “Code”); and (iii) said
exchange shall qualify as a transaction in securities exempt from registration
or qualification under the Securities Act of 1933, as amended and in effect on
the date of this Agreement (the “Securities
Act”).
NOW,
THEREFORE, in consideration of the mutual terms, conditions and other agreements
set forth herein, the parties hereto hereby agree as follows:
ARTICLE
I
EXCHANGE
OF SHARES FOR COMMON STOCK
Section 1.1
Agreement to Exchange
Masterise Shares for GEOS Shares. On the Closing Date (as hereinafter
defined) and subject to the terms and conditions set forth in this Agreement,
Masterise Shareholders shall sell, assign, transfer, convey and deliver the
Masterise Shares (representing 100% of the issued and outstanding Masterise
Shares), to GEOS, and GEOS shall accept the Masterise Shares from the Masterise
Shareholders in exchange for the issuance to the Masterise Shareholders a total
of Fifty Thousand (50,000) shares of GEOS Shares as set forth opposite to the
names of the Masterise Shareholders on Exhibit A hereto.
Section 1.2
Capitalization. On
the Closing Date, immediately before the transactions to be consummated pursuant
to this Agreement, GEOS shall have authorized (a) 100,000,000 shares
of Common Stock, par value $ 0.00001 per share, of which
5,511,400 shares shall be issued and outstanding, all of which are
duly authorized, validly issued and fully paid.
Section 1.3
Closing. The closing
of the exchange to be made pursuant to this Agreement (“Closing”) shall take place at
10:00 a.m. E.S.T.
on the day when the conditions to closing set forth in Articles V and VI
have been satisfied or waived, or at such other time and date as the parties
hereto shall agree in writing but no later than December 31, 2008 (“Closing Date”) at the place
mutually designated by both parties. At the Closing, Masterise Shareholders
shall deliver to GEOS stock certificates representing 100% of the Masterise
Shares, duly endorsed in blank for transfer or accompanied by appropriate stock
powers duly executed in blank. In full consideration and exchange for the
Masterise Shares and payment, GEOS shall issue and exchange with Masterise
Shareholders Fifty Thousand (50,000) shares of common stock of
GEOS.
Section 1.4
Tax Treatment. The
exchange described herein is intended to comply with Section 368(a)(1)(B) of the
Code, and all applicable regulations thereunder. In order to ensure compliance
with said provisions, the parties agree to take whatever steps may be necessary,
including, but not limited to, the amendment of this Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF GEOS
GEOS
hereby, jointly and severally, represents, warrants and agrees as
follows:
Section 2.1
Corporate
Organization
a. GEOS
is a corporation duly organized, validly existing and in good standing under the
laws of Nevada, and has all requisite corporate power and authority to own its
properties and assets and to conduct its business and is duly qualified to do
business in good standing in each jurisdiction in which the nature of the
business conducted by GEOS or the ownership or leasing of its properties makes
such qualification and being in good standing necessary, except where the
failure to be so qualified and in good standing will not have a material adverse
effect on the business, operations, properties, assets, condition or results of
operation of GEOS (a "GEOS
Material Adverse Effect");
b. Copies
of the Articles of Incorporation and By-laws of GEOS, with all amendments
thereto to the date hereof, have been furnished to Masterise and the Masterise
Shareholders, and such copies are accurate and complete as of the date hereof.
The minute books of GEOS are current as required by law, contain the minutes of
all meetings of the Board of Directors and shareholders of GEOS from its date of
incorporation to the date of this Agreement, and adequately reflect all material
actions taken by the Board of Directors and shareholders of GEOS.
Section
2.2
Capitalization of
GEOS. The authorized capital stock of GEOS consists of (a)
100,000,000 shares of Common Stock, par value $0.00001 per share, of
which 5,511,400 shares are issued and outstanding, all of which are
duly authorized, validly issued and fully paid. The parties agree that they have
been informed of the issuances of these GEOS Shares, and that all such issuances
of GEOS Shares pursuant to this Agreement will be in accordance with the
provisions of this Agreement. All of the GEOS Shares to be issued pursuant to
this Agreement have been duly authorized and will be validly issued, fully paid
and non-assessable and no personal liability will attach to the ownership
thereof and in each instance, have been issued in accordance with the
registration requirements of applicable securities laws or an exemption
therefrom. As of the date of this Agreement there are no outstanding options,
warrants, agreements, commitments, conversion rights, preemptive rights or other
rights to subscribe for, purchase or otherwise acquire any shares of capital
stock or any un-issued or treasury shares of capital stock of GEOS.
Section 2.3
Subsidiaries and Equity
Investments. GEOS has no subsidiaries or equity interest in any
corporation, partnership or joint venture.
Section 2.4
Authorization and Validity
of Agreements. GEOS has all corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby and upon the execution and delivery by
Masterise and the Masterise Shareholders and the performance of their
obligations herein, will constitute, a legal, valid and binding obligation of
GEOS. The execution and delivery of this Agreement by GEOS and the consummation
by GEOS of the transactions contemplated hereby have been duly authorized by all
necessary corporate action of GEOS, and no other corporate proceedings on the
part of GEOS are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
Section 2.5
No Conflict or
Violation. The execution, delivery and performance of this Agreement by
GEOS do not and will not violate or conflict with any provision of its Articles
of Incorporation or By-laws, and does not and will not violate any provision of
law, or any order, judgment or decree of any court or other governmental or
regulatory authority, nor violate or result in a breach of or constitute (with
due notice or lapse of time or both) a default under, or give to any other
entity any right of termination, amendment, acceleration or cancellation of, any
contract, lease, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which GEOS is a party or by which it is
bound or to which any of their respective properties or assets is subject, nor
will it result in the creation or imposition of any lien, charge or encumbrance
of any kind whatsoever upon any of the properties or assets of GEOS, nor will it
result in the cancellation, modification, revocation or suspension of any of the
licenses, franchises, permits to which GEOS is bound.
Section 2.6
Consents and
Approvals. No consent, waiver, authorization or approval of any
governmental or regulatory authority, domestic or foreign, or of any other
person, firm or corporation, is required in connection with the execution and
delivery of this Agreement by GEOS or the performance by GEOS of its obligations
hereunder.
Section 2.7
Absence of Certain Changes
or Events. Since its inception:
a.
As of the
date of this Agreement, GEOS does not know or have reason to know of any event,
condition, circumstance or prospective development which threatens or may
threaten to have a material adverse effect on the assets, properties,
operations, prospects, net income or financial condition of GEOS;
b.
there has
not been any declaration, setting aside or payment of dividends or distributions
with respect to shares of capital stock of GEOS; and
c.
there has
not been an increase in the compensation payable or to become payable to any
director or officer of GEOS.
Section 2.8
Disclosure. This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of GEOS in connection with the transactions
contemplated by this Agreement, when taken together, do not contain any untrue
statement of a material fact or omit any material fact necessary in order to
make the statements contained herein and/or therein not misleading.
Section
2.9
Financial Statements.
The audited balance sheet of GEOS and related statements of operations, cash
flow and shareholders' equity (“GEOS Financial Statements”)
fairly present in all material respects the financial position of GEOS as of the
respective dates thereof, and the other related statements included therein
fairly present in all material respects the results of operations, changes in
shareholders' equity and cash flows of GEOS for the respective periods or as of
the respective dates set forth therein, all in conformity with generally
accepted accounting principles consistently applied during the periods involved,
except as otherwise noted therein.
Section
2.10
Absence of Changes; No
Undisclosed Liabilities. Except as disclosed in any Form 10-K and Form
10-Q, GEOS has not incurred any liability material to GEOS on a consolidated
basis, except in the ordinary course of its business, consistent with past
practices; suffered a change, or any event involving a prospective change, in
the business, assets, financial condition, or results of operations of GEOS
which has had, or is reasonably likely to have, individually or in the
aggregate, a GEOS Material Adverse Effect, (other than as a result of changes or
proposed changes in federal or state regulations of general applicability or
interpretations thereof, changes in generally accepted accounting principles,
and changes that could, under the circumstances, reasonably have been
anticipated in light of disclosures made in writing by GEOS to Masterise
pursuant hereto); or subsequent to the date hereof, conducted its business and
operations other than in the ordinary course of business and consistent with
past practices. GEOS has no liability (and GEOS is not aware of any basis for
any present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against any of them giving rising to any liability
which individually or is in the aggregate are reasonably likely to have a GEOS
Material Adverse Effect on GEOS) except for (a) liabilities set forth on the
face of the most recent balance sheet included in the GEOS Financial Statements,
and (b) liabilities which have arisen after the date of such balance sheet in
the ordinary course of business (none of which results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract, tort,
infringement, or violation of law).
Section
2.11
Litigation. There is
no action, suit, proceeding or investigation pending or threatened against the
Company or any subsidiary that may affect the validity of this Agreement or the
right of GEOS to enter into this Agreement or to consummate the transactions
contemplated hereby.
Section
2.12
Securities Laws. GEOS
has complied in all material respects with applicable federal and state
securities laws, rules and regulations, including the Sarbanes Oxley Act of
2002, as such laws, rules and regulations apply to GEOS and its securities; and
(b) all shares of capital stock of the Company have been issued in accordance
with applicable federal and state securities laws, rules and regulations. There
are no stop orders in effect with respect to any of the Company’s
securities.
Section
2.13
Tax. GEOS has paid
all taxes due to date, if any.
Section
2.14
34 Act Reports. None
of GEOS’s filings with the SEC, contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein not
misleading, in light of the circumstances in which they were made.
Section
2.15
Market Makers. GEOS
has four market makers in its Common Stock (four market makers on the bid, none
on the ask).
Section
2.16
Survival. Each of the
representations and warranties set forth in this Article II shall be deemed
represented and made by GEOS at the Closing as if made at such time and shall
survive the Closing for a period terminating on the second anniversary of the
date of this Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF MASTERISE AND MASTERISE SHAREHOLDERS
Masterise
and Masterise Shareholders, severally, represent, warrant and agree as
follows:
Section 3.1
Corporate
Organization.
a.
Masterise
is duly organized, validly existing and in good standing under the laws of the
British Virgin Islands and has all requisite corporate power and authority to
own its properties and assets and to conduct its business as now conducted and
is duly qualified to do business, is in good standing in each jurisdiction
wherein the nature of the business conducted by Masterise or the ownership or
leasing of its properties makes such qualification and being in good standing
necessary, except where the failure to be so qualified and in good standing will
not have a material adverse effect on the business, operations, properties,
assets, condition or results of operation of Masterise (a “Masterise Material Adverse
Effect”). As of the date of this Agreement, Masterise owns seventy
percent (70%) of the issued and outstanding equity or voting interests in
Shenzhen Changhua Biomedical Engineering Co., Ltd.(“Masterise Subsidiaries”).
Masterise Subsidiaries are duly organized, validly existing and in good standing
under the laws of the Peoples’ Republic of China (“PRC”) and have all requisite
corporate power and authority to own their properties and assets and to conduct
their business as now conducted and are duly qualified to do business, are in
good standing in each jurisdiction wherein the nature of the business conducted
by Masterise Subsidiaries or the ownership or leasing of their properties makes
such qualification and being in good standing necessary, except where the
failure to be so qualified and in good standing will not have a material adverse
effect on the business, operations, properties, assets, condition or results of
operation of Masterise Subsidiaries (a "Masterise Subsidiaries Material
Adverse Effect")
b.
Copies of
the Certificate of Incorporation and By-laws of Masterise with all amendments
thereto to the date hereof, have been furnished to GEOS, and such copies are
accurate and complete as of the date hereof. The minute books of Masterise are
current as required by law, contain the minutes of all meetings of the Board of
Directors and shareholders of Masterise, and adequately reflect all material
actions taken by the Board of Directors, shareholders of Masterise.
Section 3.2
Authorization and Validity
of Agreements. Masterise has all corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Masterise and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and no other corporate proceedings on the part of Masterise are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
The Masterise Shareholders have approved this Agreement on behalf of Masterise
and no other stockholder approvals are required to consummate the transactions
contemplated hereby. Masterise Shareholders are competent to execute this
Agreement, and have the power to execute and perform this Agreement. No other
proceedings on the part of Masterise or Masterise Shareholders are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby.
Section 3.3
No Conflict or
Violation. The execution, delivery and performance of this Agreement by
Masterise or Masterise Shareholders does not and will not violate or conflict
with any provision of the constituent documents of Masterise, and does not and
will not violate any provision of law, or any order, judgment or decree of any
court or other governmental or regulatory authority, nor violate, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under or give to any other entity any right of termination, amendment,
acceleration or cancellation of any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
Masterise or Masterise Shareholders is a party or by which it is bound or to
which any of its respective properties or assets is subject, nor result in the
creation or imposition of any lien, charge or encumbrance of any kind whatsoever
upon any of the properties or assets of Masterise or Masterise Shareholders, nor
result in the cancellation, modification, revocation or suspension of any of the
licenses, franchises, permits to which Masterise or Masterise Shareholders is
bound.
Section 3.4
Investment
Representations. (a) The GEOS Shares will be acquired hereunder solely
for the account of the Masterise Shareholders, for investment, and not with a
view to the resale or distribution thereof. Masterise Shareholders understand
and are able to bear any economic risks associated with such investment in the
GEOS Shares. Masterise Shareholders have had full access to all the information
such shareholders consider necessary or appropriate to make informed investment
decisions with respect to the GEOS Shares to be acquired under this Agreement.
Masterise Shareholders further have had an opportunity to ask questions and
receive answers from GEOS’s directors regarding GEOS and to obtain additional
information (to the extent GEOS’s directors possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify any
information furnished to such shareholder or to which such shareholder had
access. Masterise Shareholders are at the time of the offer and execution of
this Agreement, either domiciled and resident outside the United States (a “Non-U.S. Shareholder”) and or
are each an “accredited investor” (as such term is defined in Rule 501(a) of
Regulation D promulgated by the Securities and Exchange Commission under the
Securities Act).
(b) No
Non-U.S. Shareholder, nor any affiliate of any Non-U.S. Shareholder, nor any
person acting on behalf of any Non-U.S. Shareholder or any behalf of any such
affiliate, has engaged or will engage in any activity undertaken for the purpose
of, or that reasonably could be expected to have the effect of, conditioning the
markets in the United States for the GEOS Shares, including, but not limited to,
effecting any sale or short sale of securities through any Non-U.S. Shareholder
or any of affiliate of any Non-U.S. Shareholder prior to the expiration of any
restricted period contained in Regulation S promulgated under the Securities Act
(any such activity being defined herein as a “Directed Selling Effort”). To the
best knowledge of the Non-U.S. Shareholders, this Agreement and the transactions
contemplated herein are not part of a plan or scheme to evade the registration
provisions of the Securities Act, and the GEOS Shares are being acquired for
investment purposes by the Non-U.S. Shareholders. The Non-U.S. Shareholder
agrees that all offers and sales of GEOS Shares from the date hereof and through
the expiration of the any restricted period set forth in Rule 903 of Regulation
S (as the same may be amended from time to time hereafter) shall not be made to
U.S. Persons or for the account or benefit of U.S. Persons and shall otherwise
be made in compliance with the provisions of Regulation S and any other
applicable provisions of the Securities Act. Neither any Non-U.S. Shareholder
nor the representatives of any Non-U.S. Shareholder have conducted any Directed
Selling Effort as that term is used and defined in Rule 902 of Regulation S and
no Non-U.S. Shareholder nor any representative of any Non-U.S. Shareholder will
engage in any such Directed Selling Effort within the United States through the
expiration of any restricted period set forth in Rule 903 of Regulation
S.
Section 3.5
Brokers’ Fees. Masterise Shareholders
have no liability to pay any fees or commissions or other consideration to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement.
Section 3.6
Disclosure. This
Agreement, the schedules hereto and any certificate attached hereto or delivered
in accordance with the terms hereby by or on behalf of Masterise or the
Masterise Shareholders in connection with the transactions contemplated by this
Agreement, when taken together, do not contain any untrue statement of a
material fact or omit any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
Section
3.7
Survival. Each of the
representations and warranties set forth in this Article III shall be deemed
represented and made by Masterise and the Masterise Shareholders at the Closing
as if made at such time and shall survive the Closing for a period terminating
on the second anniversary of the date of this Agreement.
ARTICLE
IV
COVENANTS
Section 4.1
Certain Changes and Conduct
of Business.
a.
From and
after the date of this Agreement and until the Closing Date, GEOS shall conduct
its business solely in the ordinary course consistent with past practices and,
in a manner consistent with all representations, warranties or covenants of
GEOS, and without the prior written consent of Masterise will not, except as
required or permitted pursuant to the terms hereof:
i.
make any
material change in the conduct of its businesses and/or operations or enter into
any transaction other than in the ordinary course of business consistent with
past practices;
ii.
make any
change in its Articles of Incorporation or By-laws; issue any additional shares
of capital stock or equity securities or grant any option, warrant or right to
acquire any capital stock or equity securities or issue any security convertible
into or exchangeable for its capital stock or alter in any material term of any
of its outstanding securities or make any change in its outstanding shares of
capital stock or its capitalization, whether by reason of a reclassification,
recapitalization, stock split or combination, exchange or readjustment of
shares, stock dividend or otherwise;
iii.
incur,
assume or guarantee any indebtedness for borrowed money, issue any notes, bonds,
debentures or other corporate securities or grant any option, warrant or right
to purchase any thereof, except pursuant to transactions in the ordinary course
of business consistent with past practices, or issue any securities convertible
or exchangeable for debt or equity securities of GEOS;
iv.
make any
sale, assignment, transfer, abandonment or other conveyance of any of its assets
or any part thereof, except pursuant to transactions in the ordinary course of
business consistent with past practice;
v.
subject
any of its assets, or any part thereof, to any lien or suffer such to be imposed
other than such liens as may arise in the ordinary course of business consistent
with past practices by operation of law which will not have a GEOS Material
Adverse Effect;
vi.
acquire
any assets, raw materials or properties, or enter into any other transaction,
other than in the ordinary course of business consistent with past
practices;
vii.
enter
into any new (or amend any existing) employee benefit plan, program or
arrangement or any new (or amend any existing) employment, severance or
consulting agreement, grant any general increase in the compensation of officers
or employees (including any such increase pursuant to any bonus, pension,
profit-sharing or other plan or commitment) or grant any increase in the
compensation payable or to become payable to any employee, except in accordance
with pre-existing contractual provisions or consistent with past
practices;
viii.
make or
commit to make any material capital expenditures;
ix.
pay, loan
or advance any amount to, or sell, transfer or lease any properties or assets
to, or enter into any agreement or arrangement with, any of its
affiliates;
x.
guarantee
any indebtedness for borrowed money or any other obligation of any other
person;
xi.
fail to
keep in full force and effect insurance comparable in amount and scope to
coverage maintained by it (or on behalf of it) on the date hereof;
xii.
take any
other action that would cause any of the representations and warranties made by
it in this Agreement not to remain true and correct in all material
aspect;
xiii.
make any
material loan, advance or capital contribution to or investment in any
person;
xiv.
make any
material change in any method of accounting or accounting principle, method,
estimate or practice;
xv.
settle,
release or forgive any claim or litigation or waive any right;
xvi.
commit
itself to do any of the foregoing.
b.
From and
after the date of this Agreement, Masterise will cause Masterise Subsidiaries
to:
i.
continue
to maintain, in all material respects, its properties in accordance with present
practices in a condition suitable for its current use;
ii.
file,
when due or required, federal, state, foreign and other tax returns and other
reports required to be filed and pay when due all taxes, assessments, fees and
other charges lawfully levied or assessed against it, unless the validity
thereof is contested in good faith and by appropriate proceedings diligently
conducted;
iii.
continue
to conduct its business in the ordinary course consistent with past
practices;
iv.
keep its
books of account, records and files in the ordinary course and in accordance
with existing practices; and
v.
continue
to maintain existing business relationships with suppliers.
Section 4.2
Access to Properties and
Records. Masterise shall afford GEOS’s accountants, counsel and
authorized representatives, and GEOS shall afford to Masterise's accountants,
counsel and authorized representatives full access during normal business hours
throughout the period prior to the Closing Date (or the earlier termination of
this Agreement) to all of such parties’ properties, books, contracts,
commitments and records and, during such period, shall furnish promptly to the
requesting party all other information concerning the other party's business,
properties and personnel as the requesting party may reasonably request,
provided that no investigation or receipt of information pursuant to this
Section 4.2 shall affect any representation or warranty of or the conditions to
the obligations of any party.
Section 4.3
Negotiations. From
and after the date hereof until the earlier of the Closing or the termination of
this Agreement, no party to this Agreement nor its officers or directors
(subject to such director's fiduciary duties) nor anyone acting on behalf of any
party or other persons shall, directly or indirectly, encourage, solicit, engage
in discussions or negotiations with, or provide any information to, any person,
firm, or other entity or group concerning any merger, sale of substantial
assets, purchase or sale of shares of capital stock or similar transaction
involving any party. A party shall promptly communicate to any other party any
inquiries or communications concerning any such transaction which they may
receive or of which they may become aware of.
Section 4.4
Consents and
Approvals. The parties shall:
i.
use their
reasonable commercial efforts to obtain all necessary consents, waivers,
authorizations and approvals of all governmental and regulatory authorities,
domestic and foreign, and of all other persons, firms or corporations required
in connection with the execution, delivery and performance by them of this
Agreement; and
ii.
diligently
assist and cooperate with each party in preparing and filing all documents
required to be submitted by a party to any governmental or regulatory authority,
domestic or foreign, in connection with such transactions and in obtaining any
governmental consents, waivers, authorizations or approvals which may be
required to be obtained connection in with such transactions.
Section 4.5
Public Announcement.
Unless otherwise required by applicable law, the parties hereto shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to this Agreement and shall not issue any such press
release or make any such public statement prior to such
consultation.
Section 4.6
Stock Issuance. From
and after the date of this Agreement until the Closing Date, GEOS shall not
issue any additional shares of its capital stock.
Section 4.7
Notwithstanding
anything to the contrary contained herein, it is herewith understood and agreed
that both Masterise and GEOS may enter into and conclude agreements and/or
financing transactions as same relate to and/or are contemplated by any separate
written agreements either: (a) annexed hereto as exhibits; or (b) entered into
by GEOS with Masterise executed by both parties subsequent to the date hereof.
These Agreements shall become, immediately upon execution, part of this
Agreement and subject to all warranties, representations and conditions
contained herein.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF MASTERISE AND MASTERISE SHAREHOLDERS
The
obligations of Masterise and the Masterise Shareholders to consummate the
transactions contemplated by this Agreement are subject to the fulfillment, at
or before the Closing Date, of the following conditions, any one or more of
which may be waived by both Masterise and the Masterise Shareholders in their
sole discretion:
Section 5.1
Representations and
Warranties of GEOS. All representations and warranties made by GEOS in
this Agreement shall be true and correct on and as of the Closing Date as if
again made by GEOS as of such date.
Section 5.2
Agreements and
Covenants. GEOS shall have performed and complied in all material
respects to all agreements and covenants required by this Agreement to be
performed or complied with by it on or prior to the Closing Date.
Section 5.3
Consents and
Approvals. Consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement shall be in full force and effect on the
Closing Date.
Section 5.4
No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition of
GEOS shall be in effect; and no action or proceeding before any court or
governmental or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF GEOS
The
obligations of GEOS to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing Date, of the
following conditions, any one or more of which may be waived by GEOS in its sole
discretion:
Section 6.1
Representations and
Warranties of Masterise and Masterise Shareholders. All representations
and warranties made by Masterise and Masterise Shareholders in this Agreement
shall be true and correct on and as of the Closing Date as if again made by them
on and as of such date.
Section 6.2
Agreements and
Covenants. Masterise and Masterise Shareholders shall have performed and
complied in all material respects to all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
Section 6.3
Consents and
Approvals. All consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement, shall have been duly obtained and shall be in
full force and effect on the Closing Date.
Section 6.4
No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or other governmental or regulatory authority, domestic or foreign,
nor any statute, rule, regulation, decree or executive order promulgated or
enacted by any government or governmental or regulatory authority, domestic or
foreign, that declares this Agreement invalid or unenforceable in any respect or
which prevents the consummation of the transactions contemplated hereby, or
which materially and adversely affects the assets, properties, operations,
prospects, net income or financial condition of Masterise or Masterise
Subsidiaries, taken as a whole, shall be in effect; and no action or proceeding
before any court or government or regulatory authority, domestic or foreign,
shall have been instituted or threatened by any government or governmental or
regulatory authority, domestic or foreign, or by any other person, or entity
which seeks to prevent or delay the consummation of the transactions
contemplated by this Agreement or which challenges the validity or
enforceability of this Agreement.
Section
6.5.
Other Closing
Documents. GEOS shall have received such other certificates, instruments
and documents in confirmation of the representations and warranties of Masterise
or in furtherance of the transactions contemplated by this Agreement as GEOS or
its counsel may reasonably request.
ARTICLE
VII
TERMINATION
AND ABANDONMENT
SECTION 7.1
Methods of
Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time before the
Closing:
a.
By the
mutual written consent of Masterise, Masterise Shareholders, and
GEOS;
b.
By GEOS,
upon a material breach of any representation, warranty, covenant or agreement on
the part of Masterise or Masterise Shareholders set forth in this Agreement, or
if any representation or warranty of Masterise or the Masterise Shareholders
shall become untrue, in either case such that any of the conditions set forth in
Article VI hereof would not be satisfied (a "Masterise Breach"), and such
breach shall, if capable of cure, has not been cured within Thirty (30) days
after receipt by the party in breach of a notice from the non-breaching party
setting forth in detail the nature of such breach;
c.
By
Masterise, upon a material breach of any representation, warranty, covenant or
agreement on the part of GEOS set forth in this Agreement, or, if any
representation or warranty of GEOS shall become untrue, in either case such that
any of the conditions set forth in Article V hereof would not be satisfied (a
"GEOS Breach"), and such
breach shall, if capable of cure, not have been cured within Thirty (30) days
after receipt by the party in breach of a written notice from the non-breaching
party setting forth in detail the nature of such breach.;
d.
By either
GEOS or Masterise, if the Closing shall not have consummated before Ninety (90)
days after the date hereof; provided, however, that this Agreement may be
extended by written notice of either Masterise or GEOS, if the Closing shall not
have been consummated as a result of GEOS or Masterise having failed to receive
all required regulatory approvals or consents with respect to this transaction
or as the result of the entering of an order as described in this Agreement; and
further provided, however, that the right to terminate this Agreement under this
Section 7.1(d) shall not be available to any party whose failure to fulfill any
obligations under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before this date.
e.
By either
Masterise or GEOS if a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission shall have issued an order,
decree or ruling or taken any other action (which order, decree or ruling the
parties hereto shall use its best efforts to lift), which permanently restrains,
enjoins or otherwise prohibits the transactions contemplated by this
Agreement.
Section
7.2
Procedure Upon
Termination. In the event of termination and abandonment of this
Agreement by Masterise or GEOS pursuant to Section 7.1, written notice thereof
shall forthwith be given to the other parties and this Agreement shall terminate
and the transactions contemplated hereby shall be abandoned, without further
action. If this Agreement is terminated as provided herein, no party to this
Agreement shall have any liability or further obligation to any other party to
this Agreement; provided, however, that no termination of this Agreement
pursuant to this Article VII shall relieve any party of liability for a breach
of any provision of this Agreement occurring before such
termination.
ARTICLE
VIII
POST-CLOSING
AGREEMENTS
Section 8.1
Consistency in
Reporting. Each party hereto agrees that if the characterization of any
transaction contemplated in this agreement or any ancillary or collateral
transaction is challenged, each party hereto will testify, affirm and ratify
that the characterization contemplated in such agreement was the
characterization intended by the party; provided, however, that nothing herein
shall be construed as giving rise to any obligation if the reporting position is
determined to be incorrect by final decision of a court of competent
jurisdiction.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section 9.1
Survival of
Provisions. The respective representations, warranties, covenants and
agreements of each of the parties to this Agreement (except covenants and
agreements which are expressly required to be performed and are performed in
full on or before the Closing Date) shall survive the Closing Date and the
consummation of the transactions contemplated by this Agreement, subject to
Sections 2.15, 3.8 and 9.1. In the event of a breach of any of such
representations, warranties or covenants, the party to whom such
representations, warranties or covenants have been made shall have all rights
and remedies for such breach available to it under the provisions of this
Agreement or otherwise, whether at law or in equity, regardless of any
disclosure to, or investigation made by or on behalf of such party on or before
the Closing Date.
Section 9.2
Publicity. No party
shall cause the publication of any press release or other announcement with
respect to this Agreement or the transactions contemplated hereby without the
consent of the other parties, unless a press release or announcement is required
by law. If any such announcement or other disclosure is required by law, the
disclosing party agrees to give the non-disclosing parties prior notice and an
opportunity to comment on the proposed disclosure.
Section 9.3
Successors and
Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns; provided,
however, that no party shall assign or delegate any of the obligations created
under this Agreement without the prior written consent of the other
parties.
Section 9.4
Fees and Expenses.
Except as otherwise expressly provided in this Agreement, all legal and other
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs or expenses.
Section 9.5
Notices. All notices
and other communications given or made pursuant hereto shall be in writing and
shall be deemed to have been given or made if in writing and delivered
personally or sent by registered or certified mail (postage prepaid, return
receipt requested) to the parties or to such other persons or at such other
addresses as shall be furnished by any party by like notice to the others, and
such notice or communication shall be deemed to have been given or made as of
the date so delivered or mailed. No change in any of such addresses shall be
effective insofar as notices under this Section 9.5 are concerned unless such
changed address is located in the United States of America and notice of such
change shall have been given to such other party hereto as provided in this
Section 9.5
Section 9.6
Entire Agreement.
This Agreement, together with the exhibits hereto, represents the entire
agreement and understanding of the parties with reference to the transactions
set forth herein and no representations or warranties have been made in
connection with this Agreement other than those expressly set forth herein or in
the exhibits, certificates and other documents delivered in accordance herewith.
This Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the subject matter of this Agreement and all prior drafts of this Agreement, all
of which are merged into this Agreement. No prior drafts of this Agreement and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section 9.7
Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible so as to be
valid and enforceable.
Section 9.8
Titles and Headings.
The Article and Section headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
Section
9.9
Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed one and the same agreement.
Section
9.10
Convenience of Forum;
Consent to Jurisdiction. The parties to this Agreement, acting for
themselves and for their respective successors and assigns, without regard to
domicile, citizenship or residence, hereby expressly and irrevocably elect as
the sole judicial forum for the adjudication of any matters arising under or in
connection with this Agreement, and consent and subject themselves to the
jurisdiction of, the courts of the State of New York located in County of New
York, and/or the United States District Court for the Southern District of New
York, in respect of any matter arising under this Agreement. Service of process,
notices and demands of such courts may be made upon any party to this Agreement
by personal service at any place where it may be found or giving notice to such
party as provided in Section 9.5.
Section
9.11
Enforcement of the
Agreement. The parties hereto agree that irreparable damage would occur
if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereto, this being in addition to any other remedy to which they are entitled at
law or in equity.
Section
9.12
Governing Law. This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of New York without giving effect to the choice of law
provisions thereof.
Section
9.13
Amendments and
Waivers. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the parties hereto. No waiver by any
party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
Masterise Holdings,Ltd.
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By:
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/s/
Xxxx Xxx
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Print
Name:
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XXXX
Xxx
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Title:
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PRESIDENT
& CEO
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Masterise
Shareholders :
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By:
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/s/
Xxxx Xxx
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Print
Name:
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XXXX,
Xxx
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By:
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/s/
Xxx Xxxx Yu
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Titan
Technology Development Ltd. /Name: Xxx Xxxx Yu_
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| Title: | PRESIDENT & CEO | |
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By:
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/s/
Chi Xxxx Xx
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Print
Name:
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Chi
Xxxx XX
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Title:
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PRESIDENT
& CEO
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