SHARE EXCHANGE AGREEMENT by and among CANG BAO TIAN XIA INTERNATIONAL ART TRADE CENTER, INC., a Nevada Company and ZHI YUAN LIMITED a Cayman Islands Company and THE SHAREHOLDERS OF ZHI YUAN LIMITED LISTED ON EXHIBIT A Dated as of July 27, 2020
EXHIBIT 2.1
by and among
XXXX XXX XXXX XXX INTERNATIONAL ART TRADE CENTER, INC.,
a Nevada Company
and
XXX XXXX LIMITED
a Cayman Islands Company
and
THE SHAREHOLDERS OF XXX XXXX LIMITED
LISTED ON EXHIBIT A
Dated as of July 27, 2020
THIS SHARE EXCHANGE AGREEMENT (this “ Agreement ”), dated as of July 27, 2020, is by and among Xxxx Xxx Tian Xia International Art Trade Center, Inc., a Nevada corporation (“Xxxx Xxx”), Xxx Xxxx Limited, a Cayman Islands company (“ CAYMAN Company ”), and the beneficial shareholders of CAYMAN Company identified on Exhibit A hereto (together referred to herein as the “ CAYMAN Company Shareholders ,” each a “ CAYMAN Company Shareholder ”). Each party to this Agreement is individually referred to herein as a “Party” and collectively, as the “Parties.”
WHEREAS, Xxxx Xxx is a publicly held corporation organized under the laws of the state of Nevada with no significant operations; and
WHEREAS, Xxxxxxx Xxxx (the “ Principal Shareholders”) is currently the Principal Shareholder of Xxxx Xxx owning, directly or indirectly, 17,904,771 shares of Xxxx Xxx Common Stock (as defined in Section 2.2 below), representing approximately 50.69% of the issued and outstanding Xxxx Xxx Common Stock as of the date hereof, and 100% of the 9,920,000 issued and outstanding preferred shares; and
WHEREAS, CAYMAN Company is a limited liability company organized under the laws of the Cayman Islands with one (1) share of common stock authorized, which one share was initially issued to Yung Lap Xxxxx (the “Transferor”), but which share has been transferred by the Transferor, so that, as of the date of this Agreement, the one share of CAYMAN Company is owned, beneficially, by the three CAYMAN Company Shareholders in the percentages set forth on Exhibit A; and
WHEREAS, CAYMAN Company owns 100% of the issued and outstanding capital stock of Cangyun (Hong Kong) Limited, a Hong Kong company (“Hong Kong Company”), and Hong Kong Company is the holder of 100% of the issued and outstanding capital stock of Shanghai Cangyun Management Consulting Co., Ltd. (“WFOE”), a wholly foreign owned enterprise with limited liability incorporated under the People’s Republic of China (the “ PRC ”), with agreements that allow WFOE to control the operations of Hainan Cangbao Tianxia Cultural Relic Co., Ltd and Cangbao Tianxia (Shanghai) Cultural Relic Co., Ltd.; and
WHEREAS , Xxxx Xxx agrees to acquire 100% of the issued and outstanding capital stock of CAYMAN Company in exchange for the issuance of 75,000,000 shares of Xxxx Xxx Common Stock (the “ Exchange ”) to the CAYMAN Company Shareholders, which will represent approximately 67.98% of the common shares outstanding of Xxxx Xxx at the Closing of the Share Exchange, and each CAYMAN Company Shareholder agrees to exchange his beneficial interest in his CAYMAN Company Shares for shares of Xxxx Xxx on the terms described herein; and
WHEREAS, the parties hereto intend for this transaction to constitute a tax-free reorganization pursuant to the provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
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NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
As an inducement to, and to obtain the reliance of, Xxxx Xxx, and except as set forth in the corresponding disclosure schedules delivered by CAYMAN Company in connection with this Agreement (the “ CAYMAN Company Schedules ”), CAYMAN Company represents and warrants, as of the date hereof and as of the Closing Date (defined in Section 4.2 ”), as defined below, as follows:
1.1 Organization . CAYMAN Company is a corporation duly organized, validly existing, and in good standing under the laws of Cayman Islands and has the corporate power and is duly authorized under all applicable laws, regulations, ordinances, and orders of public authorities to carry on its business in all material respects as it is now being conducted. Included in Schedule 1.1 of the CAYMAN Company Schedules are complete and correct copies of the articles of association (such documents, or other equivalent corporate organizational documents, the “ Organizational Documents ”) of CAYMAN Company as in effect on the date hereof. The execution and delivery of this Agreement does not, and the consummation of the Transactions (as defined in Section 1.4 ) will not, violate any provision of CAYMAN Company’ Organizational Documents. CAYMAN Company has full power, authority, and legal right and has taken all action required by law, its Organizational Documents, or otherwise to authorize the execution and delivery of this Agreement and to consummate the Transactions.
1.2 Capitalization . CAYMAN Company has authorized capital stock consisting of one (1) ordinary share with $1.00 par value (the “ CAYMAN Company Common Stock ”), which one share is currently issued and outstanding, and which share bas been transferred by duly executed stock power, so that it is now beneficially owned by the three CAYMAN Company Shareholders set forth in Exhibit “A,” attached hereto and made a part hereof. The CAYMAN Company Share is not subject to any preemptive or subscription right, any voting trust agreement or other contract, agreement, arrangement, option, warrant, call, commitment or other right of any character obligating or entitling CAYMAN Company to issue, sell, redeem or purchase any of its securities, and there is no outstanding security of any kind convertible into or exchangeable for CAYMAN Company Common Stock. The CAYMAN Company Share is owned beneficially by the CAYMAN Company Shareholders, free and clear of any liens, claims, encumbrances, or restrictions of any kind.
1.3 Subsidiaries and Predecessor Corporations. Except as set forth in Schedule 1.3 of the CAYMAN Company Schedules and in this Section 1.3, CAYMAN Company does not have any predecessor corporation(s) or subsidiaries, and does not own, beneficially or of record, any shares of any other corporation. CAYMAN Company owns 100% of the issued and outstanding capital stock of Cangyun (Hong Kong) Limited, a Hong Kong company (“Hong Kong Company”). Hong Kong Company is the owner of 100% of the issued and outstanding capital stock of Shanghai Cangyun Management Consulting Co., Ltd. (“WFOE”), a wholly foreign owned enterprise with limited liability incorporated under the People’s Republic of China (the “ PRC ”), with agreements that allow WFOE to control the operations of Hainan Cangbao Tianxia Cultural Relic Co., Ltd and Cangbao Tianxia (Shanghai) Cultural Relic Co., Ltd.; Hereinafter, the term “CAYMAN Company” also includes those subsidiaries set forth herein and in Schedule 1.3 of the CAYMAN Company Schedules.
1.4 Authority; Execution and Delivery; Enforceability of Agreement . CAYMAN Company has all requisite corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby (the “Transactions”). The execution and delivery by CAYMAN Company of this Agreement and the consummation by CAYMAN Company of the Transactions have been duly authorized and approved by the board of directors of CAYMAN Company and no other corporate proceedings on the part of CAYMAN Company are necessary to authorize this Agreement and the Transactions. When executed and delivered, this Agreement will be enforceable against CAYMAN Company in accordance with its terms.
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1.5 No Conflict with Other Instruments. The execution of this Agreement and the consummation of the Transactions will not result in the material breach of any term or provision of, constitute a default under, or terminate, accelerate or modify the terms of, any indenture, mortgage, deed of trust, or other material agreement, or instrument to which CAYMAN Company is a party or to which any of its assets, properties or operations are subject.
1.6 Taxes .
(a) CAYMAN Company has timely filed, or has caused to be timely filed on its behalf, all tax returns required to be filed by it, and all such tax returns are true, complete and accurate, except to the extent any failure to file or any inaccuracies in any filed tax returns, individually or in the aggregate, have not had and would not reasonably be expected to have a material adverse effect on CAYMAN Company. All taxes shown to be due on such tax returns, or otherwise owed, have been timely paid, except to the extent that any failure to pay, individually or in the aggregate, has not had and would not reasonably be expected to have a material adverse effect on CAYMAN Company. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of CAYMAN Company know of no basis for any such claim.
(b) The CAYMAN Company Financial Statements (as defined in Section 1.15 hereof) reflect an adequate reserve for all taxes payable by CAYMAN Company and its Subsidiaries (in addition to any reserve for deferred taxes to reflect timing differences between book and tax items) for all taxable periods and portions thereof through the date of such financial statements. No deficiency with respect to any taxes has been proposed, asserted or assessed against CAYMAN Company or any of its subsidiaries, and no requests for waivers of the time to assess any such taxes are pending, except to the extent any such deficiency or request for waiver, individually or in the aggregate, has not had and would not reasonably be expected to have a material adverse effect on CAYMAN Company.
(a) There has not been any material adverse change in the business, operations, properties, assets or condition (financial or otherwise) of CAYMAN Company;
(b) Except as required by this Agreement, CAYMAN Company has not (i) amended its Organizational Documents; (ii) declared or made, or agreed to declare or make any payment of dividends or distributions of any assets of any kind whatsoever to stockholders or purchased or redeemed, or agreed to purchase or redeem, any of its capital stock; (iii) made any material change in its method of management, operation or accounting; (iv) entered into any transactions or agreements; or (v) made any increase in or adoption of any profit sharing, bonus, deferred compensation, insurance, pension, retirement, or other employee benefit plan, payment, or arrangement, made to, for or with its officers, directors, or employees; and
(c) Except as required by this Agreement, CAYMAN Company has not (i) granted or agreed to grant any options, warrants, or other rights for its stock, bonds, or other corporate securities calling for the issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred, or become subject to, any material obligation or liability (absolute or contingent); (iii) sold or transferred, or agreed to sell or transfer, any of its assets, properties, or rights, or canceled, or agreed to cancel, any debts or claims; or (iv) issued, delivered or agreed to issue or deliver, any stocks, bonds or other corporate securities including debentures (whether authorized and unissued or held as treasury stock).
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arbitrator, or governmental agency or instrumentality or of any circumstances which, after reasonable investigation, would result in the discovery of such a default.
1.10 Brokers’ Fees . No broker, investment banker, financial advisor or other person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Transactions based upon arrangements made by or on behalf of CAYMAN Company.
1.11 Contracts .
(a) All “material” contracts, agreements, franchises, license agreements, debt instruments or other commitments to which CAYMAN Company is a party or by which it or any of its assets, products, technology, or properties are bound other than those incurred in the ordinary course of business are set forth in Schedule 1.11 of the CAYMAN Company Schedules. A “material” contract, agreement, franchise, license agreement, debt instrument or commitment is one which would be required to be disclosed in connection with a current report on Form 8-K by CAYMAN Company if CAYMAN Company were a registrant subject to Rule 13a-1 and Rule 13a-11 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”);
(b) All contracts, agreements, franchises, license agreements, and other commitments to which CAYMAN Company is a party or by which its properties are bound and which are material to the operations of CAYMAN Company taken as a whole are valid and enforceable by CAYMAN Company in all respects, except as limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and subject to the qualification that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefore may be brought (collectively, “ Bankruptcy and Equity Exceptions ”); and
(c) Except as included or described in Schedule 1.11 of the CAYMAN Company Schedules, CAYMAN Company is not a party to any oral or written (i) contract for the employment of any officer or employee; (ii) profit sharing, bonus, deferred compensation, stock option, severance pay, pension benefit or retirement plan, (iii) agreement, contract, or indenture relating to the borrowing of money, (iv) guaranty of any obligation; (vi) collective bargaining agreement; or (vii) agreement with any present or former officer or director of CAYMAN Company.
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(a) Included in Schedule 1.15 of the CAYMAN Company Schedules are the audited balance sheets of CAYMAN Company, as of September 30, 2019 (the “ CAYMAN Company Balance Sheets ”) and the related audited statements of operations, stockholders’ equity and cash flows for the fiscal years ended September 30, 2018 and September 30, 2019, together with the notes to such financial statements and the opinion of KCCW Accountancy, CPA, independent certified public accountants (the financial statements referred to herein collectively, the “ CAYMAN Company Financial Statements ”).
(b) The CAYMAN Company Financial Statements have been prepared in accordance with United States Generally Accepted Accounting Principles (“GAAP”) consistently applied throughout the periods involved. The CAYMAN Company Balance Sheets are true and accurate and fairly present, as of their respective dates, the financial condition of CAYMAN Company. As of the date of the CAYMAN Company Balance Sheets, except as and to the extent reflected or reserved against therein, CAYMAN Company had no liabilities or obligations (absolute or contingent) which should be reflected in the CAYMAN Company Balance Sheets or the notes thereto prepared in accordance with GAAP, and all assets reflected therein are properly reported and fairly present the value of the assets of CAYMAN Company, in accordance with GAAP. The statements of operations, stockholders’ equity and cash flows included in the CAYMAN Company Financial Statements reflect fairly the information required to be set forth therein by GAAP.
(c) CAYMAN Company has no liabilities with respect to the payment of any federal, state, county, local or other taxes (including any deficiencies, interest or penalties), except for taxes accrued but not yet due and payable.
(d) CAYMAN Company has timely filed all state, federal or local income and/or franchise tax returns required to be filed by it from inception to the date hereof. Each such income tax return reflects the taxes due for the period covered thereby, except for amounts which, in the aggregate, are immaterial.
(e) All of CAYMAN Company’s assets are reflected on the CAYMAN Company Financial Statements, and, except as set forth in the CAYMAN Company Schedules or the CAYMAN Company Financial Statements, CAYMAN Company has no material liabilities, direct or indirect, matured or unmatured, contingent or otherwise.
1.16 Transactions with Affiliates and Employees . Except as set forth in Schedule 1.16 of the CAYMAN Company Schedules, none of the officers or directors of CAYMAN Company and, to the knowledge of CAYMAN Company, none of the employees of CAYMAN Company is presently a party to any transaction with CAYMAN Company or any of its subsidiaries (other than for services as employees, officers and directors), including any Contract or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of CAYMAN Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.
1.17 Investment Company . CAYMAN Company is not, and is not an affiliate of, and immediately following the Closing will not have become, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
1.18 Foreign Corrupt Practices . Neither CAYMAN Company, nor, to CAYMAN Company’s knowledge, any director, officer, agent, employee or other person acting on behalf of CAYMAN Company, in the course of its actions for, or on behalf of, CAYMAN Company (a) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (d)
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made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF XXXX XXX
As an inducement to, and to obtain the reliance of CAYMAN Company, and except as set forth in the corresponding disclosure schedules delivered by Xxxx Xxx in connection with this Agreement (the “ Xxxx Xxx Schedules ”), Xxxx Xxx represents and warrants, as of the date hereof and as of the Closing Date (defined in Section 4.2 ”), as defined below, as follows:
2.1 Organization . Xxxx Xxx is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada and has the corporate power and is duly authorized under all applicable laws, regulations, ordinances, and orders of public authorities to carry on its business in all material respects as it is now being conducted. Included in Schedule 2.1 of the Xxxx Xxx Disclosure Schedules are complete and correct copies of the Organizational Documents of Xxxx Xxx as in effect on the date hereof. The execution and delivery of this Agreement does not, and the consummation of the Transactions will not, violate any provision of Xxxx Xxx’x Organizational Documents. Xxxx Xxx has full power, authority, and legal right and has taken all action required by law, its Organizational Documents, or otherwise to authorize the execution and delivery of this Agreement and to consummate the Transactions.
(a) Copies of the audited balance sheet of Xxxx Xxx as of June 30, 2019 and the related audited statements of operations, stockholders’ equity and cash flows for the fiscal year ended June 30, 2019, together with the notes to such statements and the opinion of XX Xxxxxxx CPA, P.C., independent certified public accountants (the “ Xxxx Xxx Financial Statements ”) have been filed with the SEC.
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(b) The Xxxx Xxx Financial Statements have been prepared in accordance with GAAP consistently applied throughout the periods involved. The Xxxx Xxx Balance Sheets are true and accurate and fairly present as of their respective dates the financial condition of Xxxx Xxx. As of the respective dates of the Xxxx Xxx Balance Sheets, except as and to the extent reflected or reserved against therein, Xxxx Xxx had no liabilities or obligations (absolute or contingent) which should be reflected in the Xxxx Xxx Balance Sheets or the notes thereto prepared in accordance with GAAP, and all assets reflected therein are properly reported and fairly present the value of the assets of Xxxx Xxx, in accordance with GAAP. The statements of operations, stockholders’ equity and cash flows in the Xxxx Xxx Financial Statements reflect fairly the information required to be set forth therein by GAAP.
(c) Xxxx Xxx has no liabilities with respect to the payment of any federal, state, county, local or other taxes (including any deficiencies, interest or penalties), except for taxes accrued but not yet due and payable.
(d) Xxxx Xxx has timely filed all state, federal or local income and/or franchise tax returns required to be filed by it from inception to the date hereof. Each such income tax return reflects the taxes due for the period covered thereby, except for amounts which, in the aggregate, are immaterial.
(e) All of Xxxx Xxx’x assets are reflected on the Xxxx Xxx Financial Statements, and, except as set forth in the Xxxx Xxx Schedules or the Xxxx Xxx Financial Statements, Xxxx Xxx has no material liabilities, direct or indirect, matured or unmatured, contingent or otherwise.
(f) Except as set forth on the Xxxx Xxx Balance Sheet as of the most recent date, and for liabilities since that date in the ordinary course of business, Xxxx Xxx shall have no liabilities on the Closing Date (as defined in Section 4.2).
2.7 Absence of Certain Changes or Events . Since the date of the most recent Xxxx Xxx Balance Sheet:
(a) There has not been any material adverse change in the business, operations, properties, assets or condition (financial or otherwise) of Xxxx Xxx;
(b) Except as required by this Agreement, Xxxx Xxx has not (i) amended its Organizational Documents; (ii) declared or made, or agreed to declare or make any payment of dividends or distributions of any assets of any kind whatsoever to stockholders or purchased or redeemed, or agreed to purchase or redeem, any of its capital stock; (iii) made any material change in its method of management, operation or accounting; (iv) entered into any transactions or agreements; or (v) made any increase in or adoption of any profit sharing, bonus, deferred compensation, insurance, pension, retirement, or other employee benefit plan, payment, or arrangement, made to, for or with its officers, directors, or employees; and
(c) Except as required by this Agreement, Xxxx Xxx has not (i) granted or agreed to grant any options, warrants, or other rights for its stock, bonds, or other corporate securities calling for the issuance thereof; (ii) borrowed or agreed to borrow any funds or incurred, or become subject to, any material obligation or liability (absolute or contingent); (iii) sold or transferred, or agreed to sell or transfer, any of its assets, properties, or rights, or canceled, or agreed to cancel, any debts or claims; or (iv) issued, delivered or agreed to issue or deliver, any stock, bonds or other corporate securities including debentures (whether authorized and unissued or held as treasury stock).
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(a) any contract, agreement, franchise, license, debt instrument, or other commitment, whether such agreement is in writing or oral;
(b) any charter or other corporate restriction, except as set forth in the Organizational Documents of Xxxx Xxx;
(c) any judgment, order, writ, injunction, decree, or award; or
(d) any oral or written (i) contract for the employment of any officer or employee; (ii) profit sharing, bonus, deferred compensation, stock option, severance pay, pension benefit or retirement plan, (iii) agreement, contract, or indenture relating to the borrowing of money, (iv) guaranty of any obligation, (vi) collective bargaining agreement; or (vii) agreement with any present or former officer or director of Xxxx Xxx.
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authorized to act on behalf of Xxxx Xxx with respect to any matter, other than its officers and directors, and a summary of the terms of such powers or authorizations, and (e) a list of all the current officers and directors of Xxxx Xxx.
2.17 Shell Company Status. As of the date of this Agreement, Xxxx Xxx is a “shell company,” as defined in Rule 12b-2 of the Exchange Act pursuant to the terms of this Share Exchange Agreement.
2.19 SEC Filings; Financial Statements .
(a) Xxxx Xxx has made available to CAYMAN Company a correct and complete copy, or there has been available on XXXXX, copies of each report, registration statement and definitive information statement filed by Xxxx Xxx with the SEC for the 24 months prior to the date of this Agreement (the “ Xxxx Xxx SEC Reports ”), which, to Xxxx Xxx’x knowledge, are all the forms, reports and documents filed by Xxxx Xxx with the SEC for the 36 months prior to the date of this Agreement. As of their respective dates, to Xxxx Xxx’x knowledge, the Xxxx Xxx SEC Reports: (i) were prepared in accordance and complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Xxxx Xxx SEC Reports, and (ii) did not at the time they were filed (and if amended or superseded by a filing prior to the date of this Agreement then on the date of such filing and as so amended or superceded) 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.
(b) Each set of financial statements (including, in each case, any related notes thereto) contained in the Xxxx Xxx SEC Reports comply as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with U.S. GAAP applied on a consistent basis throughout the periods involved, and each fairly presents in all material respects the financial position of Xxxx Xxx at the respective dates thereof and the results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal adjustments which were not or are not expected to have a Material Adverse Effect on Xxxx Xxx taken as a whole.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE CAYMAN COMPANY SHAREHOLDERS
Each CAYMAN Company Shareholder hereby represents and warrants, severally and not jointly, to Xxxx Xxx as follows:
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Stock, free and clear of all liens expecting only such restrictions upon future transfers by Xxxx Xxx, if any, as may be imposed by applicable law.
3.2 Power and Authority . The CAYMAN Company Shareholders have the legal power, capacity and authority to execute and deliver this Agreement to consummate the transactions contemplated by this Agreement, and to perform their obligations under this Agreement. All acts required to be taken by the CAYMAN Company Shareholders and the Transferor to enter into this Agreement and to carry out the Transactions have been properly taken. This Agreement constitutes a legal, valid and binding obligation of the CAYMAN Company Shareholders, enforceable against the CAYMAN Company Shareholders in accordance with the terms hereof.
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3.9 Acquisition of Exchange Shares for Investment .
(a) Each CAYMAN Company Shareholder is acquiring the Exchange Shares for investment for such CAYMAN Company Shareholder’s own account and not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and each CAYMAN Company Shareholder has no present intention of selling, granting any participation in, or otherwise distributing the same. Each CAYMAN Company Shareholder further represents that he or she does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of the Exchange Shares.
(b) Each CAYMAN Company Shareholder represents and warrants that it: (i) can bear the economic risk of its respective investments, and (ii) possesses such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment in Xxxx Xxx and its securities.
(c) Each CAYMAN Company Shareholder is not a “U.S. Person” as defined in Rule 902(k) of Regulation S of the Securities Act (“ Regulation S ”) (each a “ Non-U.S. Shareholder ”), and understands that the Exchange Shares are not registered under the Securities Act, and further understands that the issuance thereof to such CAYMAN Company Shareholders is intended to be exempt from registration under the Securities Act pursuant to Regulation S. Each Non-U.S. Shareholder has no intention of becoming a U.S. Person. At the time of the origination of contact concerning this Agreement and the date of the execution and delivery of this Agreement, each Non-U.S. Shareholder was outside of the United States. Each certificate representing the Exchange Shares shall be endorsed with the following legends, in addition to any other legend required to be placed thereon by applicable federal or state securities laws:
“THE SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES ACT.”
“TRANSFER OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
In addition to the foregoing legend, each certificate representing the Exchange Shares issued to such CAYMAN Company Shareholders shall be endorsed with the following legends, in addition to any other legend required to be placed thereon by applicable federal or state securities laws:
“THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”), OR APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS.”
“TRANSFER OF THESE SECURITIES IS PROHIBITED UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT WITH RESPECT TO SUCH SECURITY SHALL THEN BE IN EFFECT AND SUCH TRANSFER HAS BEEN QUALIFIED UNDER ALL APPLICABLE STATE SECURITIES OR “BLUE SKY” LAWS, OR AN EXEMPTION THEREFROM SHALL BE AVAILABLE UNDER THE ACT AND SUCH LAWS.”
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(e) Each CAYMAN Company Shareholder acknowledges that neither the SEC, nor the securities regulatory body of any state or other jurisdiction, has received, considered or passed upon the accuracy or adequacy of the information and representations made in this Agreement.
(f) Each CAYMAN Company Shareholder acknowledges that he, she or it has carefully reviewed such information as it has deemed necessary to evaluate an investment in Xxxx Xxx and its securities, and with respect to each U.S. Shareholder, that all information required to be disclosed to such CAYMAN Company Shareholder under Regulation D has been furnished to such CAYMAN Company Shareholder by Xxxx Xxx. To the full satisfaction of each CAYMAN Company Shareholder, he has been furnished all materials that he has requested relating to Xxxx Xxx and the issuance of the Exchange Shares hereunder, and each CAYMAN Company Shareholder has been afforded the opportunity to ask questions of Xxxx Xxx’x representatives to obtain any information necessary to verify the accuracy of any representations or information made or given to the CAYMAN Company Shareholders. Notwithstanding the foregoing, nothing herein shall derogate from or otherwise modify the representations and warranties of Xxxx Xxx set forth in this Agreement, on which each of the CAYMAN Company Shareholders have relied in making an exchange of its shares CAYMAN Company for the Exchange Shares.
(g) Each CAYMAN Company Shareholder understands that the Exchange Shares may not be sold, transferred, or otherwise disposed of without registration under the Securities Act or an exemption therefrom, and that in the absence of an effective registration statement covering the Exchange Shares or any available exemption from registration under the Securities Act, the Exchange Shares may have to be held indefinitely. Each CAYMAN Company Shareholder further acknowledges that the Exchange Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act unless all of the conditions of Rule 144 are satisfied (including, without limitation, Xxxx Xxx’x compliance with the reporting requirements under the Securities Exchange Act of 1934, as amended (“ Exchange Act ”)).
(h) Each CAYMAN Company Shareholder agrees that, notwithstanding anything contained herein to the contrary, the warranties, representations, agreements and covenants of such CAYMAN Company Shareholder under this Section 3.09 shall survive the Closing.
ARTICLE IV
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ARTICLE V
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(a) From and after the date of this Agreement until the Closing Date and except as set forth in the Xxxx Xxx Schedules or CAYMAN Company Schedules or as permitted or contemplated by this Agreement, Xxxx Xxx (subject to paragraph (b) below) and CAYMAN Company respectively, will each:
(i) | carry on its business in substantially the same manner as it has heretofore; |
(ii) | maintain and keep its properties in states of good repair and condition as at present, except for depreciation due to ordinary wear and tear and damage due to casualty; |
(iii) | maintain in full force and effect insurance comparable in amount and in scope of coverage to that now maintained by it; |
(iv) | perform in all material respects all of its obligations under any material contracts, leases, and instruments relating to or affecting its assets, properties, and business; |
(v) | use its best efforts to maintain and preserve intact its business organization, to retain its key employees, and to maintain its relationship with its material suppliers and customers; and |
(vi) | fully comply with and perform in all material respects all obligations and duties imposed on it by all federal and state laws and all rules, regulations, and orders imposed by federal or state governmental authorities. |
(b) From and after the date of this Agreement until the Closing Date, neither Xxxx Xxx nor CAYMAN Company will:
(i) | make any changes in their Organizational Documents, including any change of name, except as contemplated by this Agreement; |
(ii) | take any action described in Section 1.07, in the case of CAYMAN Company, or in Section 2.07, in the case of Xxxx Xxx (all except as permitted therein or as disclosed in the CAYMAN Company Schedules or Xxxx Xxx Schedules, as applicable); |
(iii) | enter into or amend any contract, agreement, or other instrument of any of the types described in the CAYMAN Company Schedules or Xxxx Xxx Schedules, except that a party may enter into or amend any contract, agreement, or other instrument in the ordinary course of business involving the sale of goods or services; or |
(iv) | sell any assets or discontinue any operations, sell any shares of capital stock or conduct any similar transactions other than in the ordinary course of business. |
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(a) In connection with the Transactions, Xxxx Xxx and CAYMAN Company shall each file, with the assistance of the other party and their respective legal counsel, such notices, applications, reports, or other instruments as may be deemed by them to be necessary or appropriate in an effort to document reliance on such exemptions, and the appropriate regulatory authority in the states where the stockholders of CAYMAN Company reside unless an exemption requiring no filing is available in such jurisdiction, all to the extent and in the manner as may be deemed by such party to be appropriate.
(b) In order to more fully document reliance on the exemptions from registration as provided herein, CAYMAN Company, the CAYMAN Company Shareholders, and Xxxx Xxx shall execute and deliver to the other party, at or prior to the Closing, such further letters of representation, acknowledgment, suitability, or the like as CAYMAN Company or Xxxx Xxx and their respective counsel may reasonably request in connection with reliance on exemptions from registration under such securities laws.
(c) The CAYMAN Company Shareholders acknowledge that the basis for relying on exemptions from registration or qualifications are factual, depending on the conduct of the various parties, and that no legal opinion or other assurance will be required or given to the effect that the Transactions are in fact exempt from registration or qualification.
5.8 Sales of Securities Under Rule 144, If Applicable.
(a) Xxxx Xxx will use its best efforts to at all times satisfy the current public information requirements of Rule 144 promulgated under the Securities Act so that its stockholders can sell restricted securities that have been held for one (1) year or more after Xxxx Xxx files “Form 10 Information” with the SEC, or such other restricted period as required by Rule 144 as it is from time to time amended.
(b) Upon being informed in writing by any person holding restricted stock of Xxxx Xxx that such person intends to sell any shares under Rule 144 promulgated under the Securities Act (including any rule adopted in substitution or replacement thereof), and provided that Xxxx Xxx is in compliance with its requirements under Rule 144, Xxxx Xxx will certify in writing to such person that it is compliance with Rule 144 current public information requirement to enable such person to sell such person’s restricted stock under Rule 144, as may be applicable under the circumstances.
(c) If any certificate representing any such restricted stock is presented to Xxxx Xxx’x transfer agent for registration or transfer in connection with any sales theretofore made under Rule 144, provided such certificate is duly endorsed for transfer by the appropriate person(s) or accompanied by a separate stock power duly executed by the appropriate person(s), in each case with reasonable assurances that such endorsements are genuine and effective and is accompanied by a legal opinion that such transfer has complied with the requirements of Rule 144, as the case may be, Xxxx Xxx will promptly instruct its transfer agent to register such transfer and to issue one or more new certificates representing such shares to the transferee and, if appropriate under the provisions of Rule 144, as the case may be, free of any stop transfer order or restrictive legend.
(d) This Section 5.10 shall survive the Closing of this Agreement for a period of two (2) years.
(a) CAYMAN Company hereby agrees to indemnify Xxxx Xxx and each of the officers, agents and directors of Xxxx Xxx as of the date of execution of this Agreement against any loss, liability, claim, damage, or expense (including, but not limited to, any and all expense whatsoever reasonably incurred in investigating, preparing, or defending against any litigation, commenced or threatened, or any claim whatsoever) (“ Loss ”), to which it or they may become subject arising out of or based on any inaccuracy appearing in or misrepresentations made under Article I . The indemnification provided for in this paragraph shall survive the Closing and consummation of Transactions and termination of this Agreement for one (1) year following the Closing.
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(b) The CAYMAN Company Shareholders, agree to indemnify Xxxx Xxx and each of the officers, agents and directors of Xxxx Xxx as of the date of execution of this Agreement against any Loss, to which it or they may become subject arising out of or based on any inaccuracy appearing in or misrepresentations made under Article III . The indemnification provided for in this paragraph shall survive the Closing and consummation of the contemplated Transactions and termination of this Agreement for one (1) year following the Closing.
(c) Xxxx Xxx hereby agrees to indemnify CAYMAN Company and each of the officers, agents, and directors of CAYMAN Company and the CAYMAN Company Shareholders as of the date of execution of this Agreement against any Loss to which it or they may become subject arising out of or based on any inaccuracy appearing in or misrepresentation made under Article II . The indemnification provided for in this paragraph shall survive the Closing and consummation of the contemplated Transactions and termination of this Agreement for one (1) year following the Closing.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
OF XXXX XXX
The obligations of Xxxx Xxx under this Agreement are subject to the satisfaction, at or before the Closing Date, of the following conditions:
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ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF CAYMAN COMPANY
AND THE CAYMAN COMPANY STOCKHOLDERS
The obligations of CAYMAN Company and the CAYMAN Company Shareholders under this Agreement are subject to the satisfaction, at or before the Closing Date, of the following conditions:
7.3 Good Standing . CAYMAN Company shall have received a certificate of good standing from the Secretary of State of the State of Nevada, dated as of a date within ten (10) days prior to the Closing Date, certifying that Xxxx Xxx is in good standing as a corporation in the State of Nevada and has filed all tax returns required to have been filed by it to date and has paid all taxes reported as due thereon.
ARTICLE VIII
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8.2 Governing Law . This Agreement shall be governed by, enforced, and construed under and in accordance with the laws of the United States of America and, with respect to the matters of state law, with the laws of the State of Nevada. Venue for all matters shall be in Nevada, without giving effect to principles of conflicts of law thereunder. Each of the parties irrevocably consents and agrees that any legal or equitable action or proceedings arising under or in connection with this Agreement shall be brought exclusively in the federal courts of the United States. By execution and delivery of this Agreement, each party hereto irrevocably submits to and accepts, with respect to any such action or proceeding, generally and unconditionally, the jurisdiction of the aforesaid court, and irrevocably waives any and all rights such party may now or hereafter have to object to such jurisdiction.
If to CAYMAN Company or CAYMAN Company Shareholders, to:
Xxx Xxxx Limited
c/o ___________________________
email: __________________
Address: _____________________
_____________________
With copies (with shall not constitute notices) to:
_________________, attorneys
Email: ____________________
Address: _____________________
____________________________
If to Xxxx Xxx, to:
Xxxx Xxx Xxxx Xxx Inertnational Art Trade Center, Inc.
Attn.: Xxxxxxx Xxxx, CEO
Email: _______________
Address: _________________
_________________________
________________________
With copies (which shall not constitute notices) to:
Xxxx X. Xxxx
Email: xxxxx@xxxxxxxxxxx.xxx
000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Shareholders of Xxx Xxxx Limited:
___________________________
___________________________
___________________________
or such other addresses as shall be furnished in writing by any party in the manner for giving notices hereunder, and any such notice or communication shall be deemed to have been given (a) upon receipt, if personally delivered, (b) on the day after dispatch, if sent by overnight courier, (c) upon dispatch, if transmitted by facsimile and receipt is confirmed by telephone, or (d) three (3) days after mailing, if sent by registered or certified mail.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first-above written.
XXXX XXX XXXX XXX INTERNATIONAL ART TRADE CENTER, INC.
| By: | /s/ Xxxxxxx Xxxx |
| Name: Xxxxxxx Xxxx |
| Title: CEO |
XXX XXXX LIMITED
| By: | /s/ Xxxxxxx Xxxx |
| Name: |
| Title: |
XXX XXXX LIMITED’S SHAREHOLDERS:
/s/ Xxxxxxx Xxxx |
| /s/ Yaqin Fu |
| /s/ Xxx Xxxx |
Xxxxxxx Xxxx |
| Yaqin Fu |
| Xxx Xxxx |
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EXHIBIT A
CAYMAN COMPANY BENEFICIAL SHAREHOLDERS
Xxxxxxx Xxxx-56% [42,000,000 shares]
Yaqin Fu-20% [15,000,000 shares]
Xxx Xxxx-24% [18,000,000 shares]