AGREEMENT
Exhibit
99.8
This
Agreement (the “Agreement”) is made as of the 12th
day of
September, 2007 by and between Lincoln International Corporation, a Delaware
corporation having its offices at 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the “Issuer”), and Xxxxxx Low, individually and on
behalf of NFS/FMTC Xxxx XXX FBO Xx. Xxxxxx Low, with an address at 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (the “Seller”).
WITNESSETH:
WHEREAS,
the Seller, individually and through his Xxxx XXX, is the owner of an aggregate
of 2,175,000 shares (the “Shares”) of the Issuer’s common stock, par value
$.0001 per share (“Common Stock”), and
WHEREAS,
the Seller desires to sell the Shares to the Issuer, and the Issuer desires
to
purchase the Shares from the Seller, on and subject to the terms of this
Agreement;
WHEREFORE,
the parties hereto hereby agree as follows:
1. Sale
of the Shares.
Subject
to the terms and conditions of this Agreement, and in reliance upon the
representations, warranties, covenants and agreements contained in this
Agreement, the Seller shall sell the Shares to the Issuer, and the Issuer shall
purchase the Shares from the Seller for a purchase price (the “Purchase Price”)
equal to $340,133.13. The Purchase Price, together with the payment of the
obligations to Xxxxxx Low pursuant to Section 2(b)(iii) of this Agreement,
shall
be wired in accordance with Exhibit A to this Agreement.
2. Closing.
(a) The
purchase and sales of the Shares shall take place at a closing (the “Closing”),
to occur immediately following execution and delivery of this
Agreement.
(b) At
the
Closing:
(i) The
Seller shall deliver to the Issuer certificates for the Shares, duly endorsed
in
form for transfer to the Issuer.
(ii) The
Issuer shall pay the purchase price for the Shares.
(iii)
The
Issuer shall pay its obligations to Xxxxxx Low on due to him in the aggregate
amount of $284,866.87.
(iv)
The
Seller shall deliver evidence that, as of Closing, the Issuer has no direct,
contingent or other obligations of any kind or any commitment or contractual
obligations of any kind and description, and that all liabilities and
obligations of any kind and description, whether immediate, direct, contingent
or indirect, shall have been cancelled, with the result that the Issuer has,
as
of the Closing, no liabilities or obligations of any kind. All legal and
accounting fees and expenses shall be paid or provided for at the Closing,
and
any fees and expenses not so paid shall be payable by Seller.
(v)
The
Issuer shall deliver or cause the Issuer’s transfer agent to deliver a certified
copy of the stock ledger of the Issuer listing every stockholder of record
as of
the most recent practicable date.
(vi)
The
Issuer shall confirm that it has obtain the agreement of Xxxxx Xxxxx to continue
to maintain the transfer books of the Issuer for a reasonable time until the
Issuer can engage a transfer agent.
(vii)
The
Issuer shall take such steps as are necessary to become a corporation in good
standing in New York.
(viii)
The Issuer shall at Seller’s cost, take such steps as may be necessary to
prepare and file tax returns for any periods ending on or prior to the Closing
Date for which such returns are required to be filed.
(xi)
Counsel for the Issuer shall have given its opinion to the Issuer, which may
be
relied on by any subsequent purchasers of the Issuer’s capital stock and their
counsel if such purchases take place as part of the next direct or indirect
merger or similar transaction with an operating business that results in a
change of control of the Issuer (“Reverse Merger Issuances”), to the effect that
all of the issued and outstanding capital stock has been duly and validly
authorized and issued and is fully paid and non-assessable and not issued in
violation of any preemptive right, right of first refusal or other right known
to such counsel after review of the corporate records, and that the issuance
of
such capital stock was exempt from the registration requirements of the
Securities Act of 1933, as amended, by virtue of Section 4(2)
thereunder.
(x)
The
Issuer shall deliver a good standing certificate issued by the Secretary of
State of the State of Delaware and a certified copy of the Issuer’s Articles of
Incorporation, as currently in effect, certified by the Secretary of State
of
the State of Delaware.
(xi)
The
Seller will provide evidence that all liabilities of the Issuer have been paid
and the Issuer has no obligation with respect to legal, accounting or other
professional fees relating to the transactions contemplated by this Agreement
or
a proposed reverse acquisition (the “Reverse Acquisition Transaction”) with Keep
On Holding Limited, a British Virgin Island corporation, and a related
financing.
(d) The
Seller understands that following the Closing, the Issuer may engage a different
accounting firm. At and at any time after the Closing, the parties shall duly
execute, acknowledge and deliver all such further assignments, conveyances,
instruments and documents, and shall take such other action consistent with
the
terms of this Agreement to carry out the transactions contemplated by this
Agreement. Without limiting the foregoing, the Issuer and Seller jointly and
severally agree that they shall cause the Issuer’s current management to execute
such certificates, auditor representation letters and other representations
(“Certifications”) as the Issuer may reasonably request in order to enable the
Issuer to prepare and file future reports with the Securities and Exchange
Commission (“SEC”), including the Issuer’s Report on Form 8-K relating to this
Agreement, and shall take such steps as may be necessary to facilitate the
Issuer’s auditor’s preparation of the financial statements and its report
related thereto for the current fiscal year. Such Certifications shall
specifically include a representation letter for the benefit of the Issuer’s
auditor in the form requested by its auditors. Any such Certifications shall
treat only periods and events prior to Closing. Seller will also cause the
Issuer to deliver the Issuer’s tax returns for the past three years at or as
soon as practical after the Closing.
3. Representations
and Warranties of the
Issuer and Seller.
The
Issuer and Seller hereby jointly and severally make the following
representations and warranties to each other and to any persons who acquire
the
Issuer’s capital stock following the Closing in Reverse Merger Issuances,
provided, that such representations and warranties shall survive the Closing
for
a period of one (1) year and provided further that the Seller makes no
representations and warranties other than with respect to himself and the Shares
to be sold hereunder:
(a) The
Issuer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Issuer has the corporate power
to
own its properties and to carry on its business as now being conducted and
is
duly qualified to do business and is in good standing in each jurisdiction
in
which the failure to be so qualified and in good standing would have a material
adverse effect on the Issuer. The Issuer is not in violation of any of the
provisions of its certificate of incorporation or by-laws. No consent, approval
or agreement of any individual or entity is required to be obtained by the
Issuer in connection with the execution and performance by the Issuer of this
Agreement or the execution and performance by the Issuer of any agreements,
instruments or other obligations entered into in connection with this Agreement.
The Issuer has no subsidiary, and it does not have any equity investment or
other interest, direct or indirect, in, or any outstanding loans, advances
or
guarantees to or on behalf of, any domestic or foreign individual or
entity.
(b) The
Issuer has authorized capital stock consisting of 500,000,000 shares of Issuer
Common Stock, and 50,000,000 shares of preferred stock, no par value (the
“Preferred Stock”), of which 2,610,000 shares of Common Stock, including the
Shares, and no shares of Preferred Stock are presently issued and outstanding.
Seller owns the Shares free and clear of any and all liens, claims,
encumbrances, preemptive rights, right of first refusal and adverse interests
of
any kind. The Issuer has not created or authorized any series of Preferred
Stock
and has no obligation or understanding to do so, except as contemplated in
that
certain securities purchase agreement to be executed in connection with a
Reverse Acquisition Transaction with Keep On Holding Limited (the “Purchase
Agreement”), between the Issuer and the Investors named therein.
(c) Neither
the Issuer nor Seller are party to any agreement or understanding pursuant
to
which any securities of any class of capital stock are to be issued or created
or transferred. The Issuer has not acquired any shares of Common Stock, and
has
no formal or informal agreements or understandings pursuant to which it can
or
will acquire any shares of Issuer Common Stock (other than this Agreement).
Except as contemplated in the Purchase Agreement, neither the Issuer nor Seller
nor any officer, director or 5% stockholder of the Issuer has any agreements,
plans, understandings or proposals, whether formal or informal or whether oral
or in writing, pursuant to which it or he granted or may have issued or granted
any individual or entity any Convertible Security or any interest in the Issuer
or the Issuer’s earnings or profits, however defined. As used in this Agreement,
the term “Convertible Securities” shall mean any options, rights, warrants,
convertible debt, equity securities or other instrument or agreement upon the
exercise or conversion of which or upon the exchange of which or pursuant to
the
terms of which additional shares of any class of capital stock of the Issuer
may
be issued.
(d) There
is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the Issuer’s Best Knowledge, threatened against the Issuer or any of its
properties or any of its officers or directors (in their capacities as such).
There is no judgment, decree or order against the Issuer that could prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement.
The term “Best Knowledge” of the Issuer shall mean and include (i) actual
knowledge and (ii) that knowledge which a prudent businessperson would
reasonably have obtained in the management of such Person’s business affairs
after making due inquiry and exercising the due diligence which a prudent
businessperson should have made or exercised, as applicable, with respect
thereto.
(e) There
are
no material claims, actions, suits, proceedings, inquiries, labor disputes
or
investigations (whether or not purportedly on behalf of the Issuer) pending
or,
to the Issuer’s Best Knowledge, threatened against the Issuer or any of its
assets, at law or in equity or by or before any governmental entity or in
arbitration or mediation. No bankruptcy, receivership or debtor relief
proceedings are pending or, to the best of the Issuer’s knowledge, threatened
against the Issuer.
(f) The
Issuer has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
Law,
judgment, decree, injunction or order, applicable to it, the conduct of its
business, or the ownership or operation of its business. References in this
Agreement to “Laws” shall refer to any laws, rules or regulations of any
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including, without
limitation, any federal or state securities law, regulation, rule or
administrative order).
(g) The
Issuer has properly filed all tax returns required to be filed and has paid
all
taxes shown thereon to be due. To the Best Knowledge of the Issuer, all tax
returns previously filed are true and correct in all material
respects.
(h) The
Issuer has no outstanding liabilities or obligations to any party except as
reflected on the Issuer’s Form 10-QSB for the quarter ended April 30, 2007,
other than charges since such date similar to those incurred in past periods
and
consistent with past practice, all of which will be discharged prior to or
at
the Closing so that, at the Closing, the Issuer will have no direct, contingent
or other obligations of any kind or any commitment or contractual obligations
of
any kind and description.
(i) All
of
the business and financial transactions of the Issuer have been fully and
properly reflected in the books and records of the Issuer in all material
respects and in accordance with generally accepted accounting principles
consistently applied.
(j)
The
Issuer’s Form 10-KSB for the year ended July 31, 2006, contains the audited
financial statements of the Issuer, certified by Sherb & Co., LLP,
(“Sherb”), the Issuer’s independent registered accounting firm, and the Issuer’s
Form 10-QSB for the quarter ended April 30, 2007 contains the unaudited
financial statements of the Issuer which have been reviewed by Sherb. The
balance sheets fairly present the financial position of the Issuer, as of their
respective dates, and each of the consolidated statements of income,
stockholders’ equity and cash flows (including any related notes and schedules
thereto) fairly presents the results of operations, cash flows and changes
in
stockholders’ equity, as the case may be, of the Issuer for the periods to which
they relate, in each case in accordance with generally accepted accounting
principles (“GAAP”) consistently applied during the periods involved. Sherb is
independent as to the Issuer in accordance with the rules and regulations of
the
SEC. The books and records of the Issuer have been, and are being, maintained
in
all material respects in accordance with GAAP and any other applicable legal
and
accounting requirements and reflect only actual transaction. The Issuer has
not
received any letters of comments from the SEC relating to any filing made by
the
Issuer with the SEC which has not been addressed by an amended filing, and
each
amended filing fully responds to the questions raised by the staff of the SEC.
The Issuer maintains disclosure controls and procedures that are effective
to
ensure that information required to be disclosed by the Issuer in its annual
and
quarterly reports filed with the SEC is accumulated and communicated to the
Issuer’s management, including its principal executive and financial officers as
appropriate, to allow timely decisions regarding required disclosure. There
were
no significant changes in the Issuer’s internal controls or other factors that
could significantly affect such controls subsequent to December 31, 2006. The
Issuer has not received any advice from Sherb to the effect that there is any
significant deficiency or material weakness in the Issuer’s controls or
recommending any corrective action on the part of the Issuer or any subsidiary
of the Issuer. The Issuer does not have any contingent liabilities
(k) The
Issuer’s Common Stock is registered pursuant to Section 12(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). The Issuer is current
with its reporting obligations under the Exchange Act. The Common Stock is
listed on the OTC Bulletin Board of the National Association of Securities
Dealers, Inc. The Issuer has received no notice, either oral or written, with
respect to the continued listing of the Common Stock on the OTC Bulletin Board.
The Issuer has not provided to any investor any information that, according
to
applicable law, rule or regulation, should have been disclosed publicly prior
to
the date hereof by the Issuer, but which has not been so disclosed. As of their
respective dates, the Issuer’s filings made pursuant to the Exchange Act (the
“Issuer SEC Documents”) complied in all material respects with the requirements
of the Exchange Act, and rules and regulations of the SEC promulgated thereunder
and the Issuer SEC Documents 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.
(l) The
execution and delivery of this Agreement by the Issuer and the consummation
of
the transactions contemplated by this Agreement will not result in any material
violation of the Issuer’s certificate of incorporation or by-laws, or any
applicable Law.
(m) All
representations, covenants and warranties of the Issuer and Seller contained
in
this Agreement shall be true and correct on and as of the Closing Date with
the
same effect as though the same had been made on and as of such
date.
4. Finder’s
Fee.
Seller
represents and warrants that no person is entitled to receive a finder’s fee
from Seller in connection with this Agreement as a result of any action taken
by
the Issuer or Seller pursuant to this Agreement (other than any finder’s fee
payment at the Closing from the Purchase Price), and agrees to indemnify and
hold harmless the Issuer, its officers, directors and affiliates, in the event
of a breach of the representation and warranty set forth in this Section 4.
This
representation and warranty shall survive the Closing.
5. Termination
by Mutual Agreement.
This
Agreement may be terminated at any time by mutual consent of the parties hereto,
provided that such consent to terminate is in writing and is signed by each
of
the parties hereto.
6. Miscellaneous.
(a) Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties, superseding and
terminating any and all prior or contemporaneous oral and written agreements,
understandings or letters of intent between or among the parties with respect
to
the subject matter of this Agreement. No part of this Agreement may be modified
or amended, nor may any right be waived, except by a written instrument which
expressly refers to this Agreement, states that it is a modification or
amendment of this Agreement and is signed by the parties to this Agreement,
or,
in the case of waiver, by the party granting the waiver. No course of conduct
or
dealing or trade usage or custom and no course of performance shall be relied
on
or referred to by any party to contradict, explain or supplement any provision
of this Agreement, it being acknowledged by the parties to this Agreement that
this Agreement is intended to be, and is, the complete and exclusive statement
of the agreement with respect to its subject matter. Any waiver shall be limited
to the express terms thereof and shall not be construed as a waiver of any
other
provisions or the same provisions at any other time or under any other
circumstances.
(b) Severability.
If any
section, term or provision of this Agreement shall to any extent be held or
determined to be invalid or unenforceable, the remaining sections, terms and
provisions shall nevertheless continue in full force and effect.
(c) Notices.
All
notices provided for in this Agreement shall be in writing signed by the party
giving such notice, and delivered personally or sent by overnight courier,
mail
or messenger against receipt thereof or sent by registered or certified mail,
return receipt requested, or by facsimile transmission or similar means of
communication if receipt is confirmed or if transmission of such notice is
confirmed by mall as provided in this Section 6(c). Notices shall be deemed
to
have been received on the date of personal delivery or telecopy or attempted
delivery. Notice shall be delivered to the parties at the following
addresses:
|
If
to the Issuer (after the Closing):
|
Xxxxxxxx
Xxxx-Xxx Xxxx, CEO
|
|
c/o
Suny Electronics (Shenzhen) Company, Limited
|
|
|
00X
Xxxxx, Xxxxx Xxxx, Xxxxxxx Xx. 0
|
|
|
Xxxxxxxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxx
|
|
|
Xxxxxxxx,
XXXXX 000000
|
|
|
E-mail:
xxx0000@000.xxx and
|
|
|
xxxxxxxxxxx.xx@xxxxx.xxx
|
|
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Fax:
00 0000-00000000
|
|
|
With
a copy to
|
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
|
|
00
Xxxxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
Xxxxx X. Xxxxxxxx PC
|
|
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E-mail:
xxxxxxxxx@xxxx.xxx
|
|
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Fax:
(000) 000-0000
|
|
|
If
to Seller:
|
Xx.
Xxxxxx Low
|
|
000
Xxxxxxxxx Xxxxxx
|
|
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Xxx
Xxxx, Xxx Xxxx 00000
|
|
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E-mail:
Xxxxxx@xxxxxxxxxxx.xxx
|
|
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Fax:
(000) 000-0000
|
|
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With
a copy to:
|
Xxxxxx
Xxxxxx & Xxxxxxxxx PLLC
|
|
2000
Xxxxxxxxx Tower
|
|
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000
Xxxxx Xxxxxx Xxxxxx
|
|
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Xxxxxxxxxx,
XX 00000
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Attention:
Xxxxx Xxxxxx, Esq.
|
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E-mail:
xxxxxxx@xxxx.xxx
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|
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Fax:
000-000-0000
|
Any
party
may, by like notice, change the address, person or telecopier number to which
notice shall be sent.
(d) Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State of New York applicable to agreements executed and to be performed wholly
within such State, without regard to any principles of conflicts of law. Each
of
the parties hereby irrevocably consents and agrees that any legal or equitable
action or proceeding arising under or in connection with this Agreement shall
be
brought in the federal or state courts located in the County of New York in
the
State of New York, by execution and delivery of this Agreement, irrevocably
submits to and accepts the jurisdiction of said courts, (iii) waives any defense
that such court is not a convenient forum, and (iv) consent to any service
of
process made either (x) in the manner set forth in Section 10(c) of this
Agreement (other than by telecopier), or (y) any other method of service
permitted by law.
(e) Waiver
of Jury Trial.
EACH
PARTY, TO THE EXTENT PERMITTED BY LAW, HEREBY EXPRESSLY WAIVES ANY RIGHT TO
A
TRIAL BY JURY IN THE EVENT OF ANY SUIT, ACTION OR PROCEEDING TO ENFORCE THIS
AGREEMENT OR ANY OTHER ACTION OR PROCEEDING WHICH MAY ARISE OUT OF OR IN ANY
WAY
BE CONNECTED WITH THIS AGREEMENT OR ANY OF THE OTHER
DOCUMENTS.
(h) Expenses.
Seller
shall be responsible and liable for his and the Issuer’s expenses incurred in
connection with the preparation of this Agreement, the consummation of the
transactions contemplated by this Agreement.
(g) Successors.
This
Agreement shall be binding upon the parties and their respective heirs,
executors, administrators, legal representatives, successors and assigns;
provided, however, that the Issuer may not assign this Agreement or any of
its
rights under this Agreement without the prior written consent of the Seller,
and
Seller may not assign this Agreement or any of his rights under this Agreement
without the prior written consent of the Issuer.
(h) Further
Assurances.
Each
party to this Agreement agrees, without cost or expense to any other party,
to
deliver or cause to be delivered such other documents and instruments as may
be
reasonably requested by any other party to this Agreement in order to carry
out
more fully the provisions of, and to consummate the transaction contemplated
by,
this Agreement.
(i) Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original but all of which together shall constitute
one
and the same instrument.
(j) No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties with the advice of counsel to express their mutual intent, and no rules
of strict construction will be applied against any party.
(k) Headings.
The
headings in the Sections of this Agreement are inserted for convenience only
and
shall not constitute a part of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
|
By:
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/s/
Xxxxxxxx Xxxx-Xxx Xxxx
|
|
Name:
Xxxxxxxx Xxxx-Xxx Xxxx, CEO
|
|
|
Xxxxxx Low, individually and on behalf of NFS/FMTC
Xxxx
XXX FBO Xx. Xxxxxx Low
|
|
Exhibit
A
Allocation
of funds for (i) stock purchase and (ii) repayment of loan due to Xxxxxx
Low
|
Payee
|
Wire
Instruction
|
Amount
|
||||
|
Xxxxxx
Low
|
XX
Xxxxxx Chase
ABA
# 000000000
F/A/O
NFS
A/C
066 196 221
F/B/O
(SR3-000930)
Acct
name: Xxxxxx A Low
|
$
|
8,000.00
|
|||
|
Xxxxxx
Low Xxxx XXX
|
XX
Xxxxxx Xxxxx
ABA
# 000000000
F/A/O
NFS
A/C
066 196 221
F/B/O
(SR3-000949)
Acct
name: Xxxxxx Low Xxxx XXX
|
$
|
592,000.00
|
|||
|
Gemini
Business Consultants, Inc.
|
Washington
Mutual
0000
Xxxx Xxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
ABA
No. 000000000
Account
Name: Gemini Business Consultants, Inc.
Account
No. 3092897724
|
$
|
25,000.00
|
|||
|
Total
|
$
|
625,000.00
|
||||
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