ACQUISITION AGREEMENT AND PLAN OF MERGER
Exhibit 10.13
THIS ACQUISITION AGREEMENT AND PLAN OF
MERGER (this “Agreement”) is made and entered
into on this 29th day of December,
2017, by and among SeD Intelligent Home Inc., a Nevada corporation
(the “Public Company”), SeD Acquisition Corp., a
Delaware corporation (the “Merger Sub”), SeD Home
International, Inc., a Delaware corporation (“SeD Home
International”), and SeD Home, Inc., a corporation
incorporated under the laws of the State of Delaware (“SeD
Home”).
W I T N E S S E T H:
WHEREAS, the Public Company is the sole
shareholder of the Merger Sub;
WHEREAS, SeD Home International, Inc. is
the sole shareholder of SeD Home;
WHEREAS, SeD Home International, Inc. is
the owner of the majority of the shares of the common stock of the
Public Company, and owns 74,015,730 of the 74,043,324 issued and
outstanding shares of the common stock of the Public
Company;
WHEREAS, the board of directors of each
of the Public Company and the Merger Sub have each determined that
a merger of the Merger Sub with and into SeD Home (the
“Merger”), upon the terms and subject to the conditions
set forth in this Agreement, is in the best interests of the Merger
Sub, the Public Company, and the shareholders thereof, and
accordingly, their respective boards of directors have each
approved the Merger;
WHEREAS, the board of directors of each
of SeD Home and its sole shareholder SeD Home International have
determined that the Merger, upon the terms and subject to the
conditions set forth in this Agreement, is in the best interests of
the shareholders of SeD Home and SeD Home International, and
accordingly each board of directors has approved the
Merger;
WHEREAS, each of the Public Company,
Merger Sub, SeD Home International and SeD Home acknowledge that
the Public Company is a “shell” company, as that term
is defined in Rule 12b-2 under the Exchange Act of 1934, as
amended (17 CFR 240.12b-2), and accordingly has nominal activities
and assets;
WHEREAS, SeD Home International has
determined that it is advisable to transfer the ownership of all of
the issued and outstanding shares of SeD Home to the Public
Company, with the understanding that the Public Company’s
ownership of SeD Home will be beneficial to SeD Home
International;
WHEREAS, each of the Public Company,
Merger Sub, SeD Home International and SeD Home acknowledge that
SeD Home International has agreed to the transfer of all of the
issued and outstanding shares of SeD Home only as a result of its
present ownership of 74,015,730 shares of the Public
Company’s common stock;
WHEREAS, the Public Company has agreed
to issue 630,000,000 shares of the Public Company’s common
stock to SeD Home International;
WHEREAS, each of the Public Company,
Merger Sub, SeD Home International and SeD Home desire to make
certain representations, warranties, covenants and agreements in
connection with the Merger; and
WHEREAS, for federal income tax
purposes, the parties intend that the Merger shall qualify as a
reorganization under the provisions of Section 368(a)(2)(E) of the
Internal Revenue Code of 1986, as amended (the “Code”)
and shall be a tax free exchange;
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained
herein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
When
used in this Agreement, the following terms shall have the
following meanings:
1.01
Certificate of Merger. “Certificate of Merger” shall
mean a Certificate of Merger in substantially the form attached to
this Agreement as Exhibit
A and to be filed with the Secretary of State of the State
of Delaware.
1.02
Closing. “Closing” and “Closing Date” shall
mean the closing of the transactions contemplated by this
Agreement.
1.03
Effective Time. “Effective Time” shall mean the date of
which the Certificate of Merger is properly filed with the
Secretary of State of the State of Delaware, as required under the
applicable provisions of the law of such jurisdiction, or at such
other time as is permissible in accordance with the
DGCL.
1.04
SeD Home Shares. “SeD Home Share(s)” shall mean the
shares of common stock, par value $0.0001 per share, of SeD Home,
Inc.
1.05
Material Adverse Change; Material Adverse Effect. “Material
Adverse Change” or “Material Adverse Effect”
means, when used in connection with SeD Home, the Public Company or
Merger Sub, any change or effect that either individually or in the
aggregate with all other such changes or effects is materially
adverse to the business, assets, properties, condition (financial
or otherwise) or results of operations of such party taken as a
whole.
1.06
Person. “Person” means an individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
1.07
Subsidiary. A “Subsidiary” of any person means another
person, an amount of the voting securities, other voting ownership
or voting partnership interests of which is sufficient to elect at
least a majority of its Board of Directors or other governing body
(or, if there are no such voting interests, fifty percent (50%) or
more of the equity interests) is owned directly or indirectly by
such first person.
1.08
Surviving Corporation. “Surviving Corporation” shall
have the meaning set forth in Section 2.01.
ARTICLE II.
THE MERGER
2.01
The Merger. Upon the terms and subject to the conditions set forth
in this Agreement, the Certificate of Merger and in accordance with
the Delaware General Corporation Law (the “DGCL”), at
the Effective Time of the Merger, the Merger Sub shall merge with
SeD Home, and SeD Home shall continue as a subsidiary of the Public
Company and shall continue its corporate existence under the laws
of the State of Delaware (the “Surviving
Corporation”).
2.02
Effective Time. The Merger shall become effective on the date and
at the time the Certificate of Merger is filed with the Secretary
of State of Delaware in accordance with provisions of the DGCL, or
at such other time as is permissible in accordance with the DGCL.
The time at which the Merger shall become effective as aforesaid is
referred to hereinafter as the “Effective
Time.”
2.03
Closing. The closing of the Merger (the “Closing”)
shall occur concurrently with the Effective Time (the
“Closing Date”). The Closing shall occur at 0000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000, unless another
place is agreed to in writing by the parties hereto.
2.04
Manner and Basis of Converting Shares. At the Effective Time, the
500,000,000 SeD Home Shares that shall be outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted
into 630,000,000 shares of the common stock of the Public Company
to be held by SeD Home International. As of the Effective Time, all
of the common stock of the Merger Sub issued and outstanding
immediately prior to the Effective Time shall no longer be
outstanding and shall automatically be exchanged for 500,000,000
shares of SeD Home, all of which shares of SeD Home shall be held
by the Public Company as the sole shareholder of the Surviving
Corporation following the Effective Time. Accordingly, SeD Home
International shall have received an aggregate total of 630,000,000
shares of the common stock of the Public Company and the Public
Company shall own all of the issued and outstanding shares of SeD
Home. All shares to be issued hereby shall be issued as of the
Effective Time of the Merger, by virtue of the Merger and without
any action on the part of SeD Home International. The 630,000,000
shares of the Public Company’s common stock to be issued to
SeD Home International pursuant to this Agreement shall upon
issuance be duly authorized, validly issued, fully paid and
non-assessable. The 500,000,000 shares of the Surviving Corporation
to be issued to the Public Company shall be duly authorized,
validly issued, fully paid and non-assessable. The certificates
representing the shares of common stock to be issued pursuant to
this Agreement shall bear an appropriate legend indicating that
such shares have not been registered pursuant to the Securities Act
of 1933, as amended.
2.05
Effective Date of Merger. As soon as practicable, the parties shall
file the Certificate of Merger with the Secretary of State of the
State of Delaware executed in accordance with the relevant
provisions of the DGCL and shall make all other filings or
recordings required thereunder. The Merger shall become effective
at such date as the Certificate of Merger is duly filed with the
Secretary of State of Delaware, or at such other time as is
permissible in accordance with the DGCL (the time the Merger
becomes effective being the “Effective Time of the
Merger”). The Public Company shall use reasonable efforts to
have the Closing Date and the Effective Time of the Merger to be
the same day.
2.06
Effects of the Merger. The Merger shall have the effects set forth
in the applicable provisions of the DGCL.
2.07
Articles of Incorporation; Bylaws; Purposes.
(a) The
Articles of Incorporation of SeD Home in effect immediately prior
to the Effective Time of the Merger shall be the Articles of
Incorporation of the Surviving Corporation until thereafter changed
or amended as provided therein or by applicable law. SeD Home shall
be a wholly-owned subsidiary of the Public Company. The Public
Company’s Articles of Incorporation shall not be amended or
changed hereby.
(b)
The Bylaws of SeD Home in effect at the Effective Time of the
Merger shall be the Bylaws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable
law. The Public Company’s Bylaws shall not be amended or
changed hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.01
Representations and Warranties of SeD Home. SeD Home represents and
warrants to the Public Company as follows:
(a)
Organization, Standing and Corporate Power. SeD Home is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
(b)
Capital Structure. The issued and outstanding shares of SeD Home
consists of 500,000,000 shares that are held by one (1)
shareholder. SeD Home has no other securities of any nature issued
or outstanding. All outstanding SeD Home Shares are duly
authorized, validly issued, fully paid and
non-assessable.
(c) Authority;
Non-contravention. SeD Home has the requisite power and authority
to enter into this Agreement and to consummate the Merger. The
execution and delivery of this Agreement by SeD Home and the
consummation by SeD Home of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the
part of SeD Home. This Agreement has been duly executed and
delivered by SeD Home and constitutes a valid and binding
obligation of SeD Home, enforceable against SeD Home in accordance
with its terms.
3.02
Representations and Warranties of the Public Company and Merger
Sub. The Public Company and the Merger Sub each represent and
warrant to each of SeD Home and SeD Home International as
follows:
(a)
Organization, Standing and Corporate Power. The Public Company and
Merger Sub are duly incorporated, validly existing and in good
standing under the laws of the State of Nevada and Delaware,
respectively, and each has the requisite corporate power and
authority to carry on its business as now being conducted. The
Public Company and Merger Sub are duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the
nature of its business makes such qualification or licensing
necessary, other than in such jurisdictions where the failure to be
so qualified or licensed (individually or in the aggregate) would
not have a Material Adverse Effect.
(b) Subsidiaries.
The Public Company has no Subsidiaries other than the Merger Sub.
Merger Sub is an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization. The Merger Sub was formed solely to effectuate the
Merger and has not conducted any business operations since its
organization. The Public Company has delivered or made available to
SeD Home complete and accurate copies of the charter, bylaws or
other organizational documents of the Merger Sub. The Merger Sub
has no assets, it has no liabilities or other obligations, and it
is not in default under or in violation of any provision of its
charter, bylaws or other organizational documents. All shares of
the Merger Sub are owned by the Public Company free and clear of
any restrictions on transfer (other than restrictions under the
Securities Act and state securities laws), claims, security
interests, options, warrants, rights, contracts, calls,
commitments, equities and demands. There are no outstanding or
authorized options, warrants, rights, agreements or commitments to
which the Public Company or the Merger Sub is a party or which are
binding on any of them providing for the issuance, disposition or
acquisition of any capital stock of the Merger Sub (except as
contemplated by this Agreement).
(c) Capital
Structure. The authorized capital stock of the Public Company
consists of 1,000,000,000 shares of common stock, $.001 par value,
of which 74,043,324 shares are issued and outstanding as of the
date hereof. There are no outstanding bonds, debentures, notes or
other indebtedness or other securities of the Public Company having
the right to vote (or convertible into, or exchangeable for,
securities having the right to vote) on any matters on which
shareholders of the Public Company may vote. There are no
outstanding securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind
to which the Public Company is a party or by which it is bound
obligating the Public Company to issue, deliver or sell, or cause
to be issued, delivered or sold, additional common stock of the
Public Company or other equity or voting securities of the Public
Company or obligating the Public Company to issue, grant, extend or
enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking. There are no
outstanding contractual obligations, commitments, understandings or
arrangements of the Public Company to repurchase, redeem or
otherwise acquire or make any payment in respect of any common
stock of the Public Company or any other securities of the Public
Company. Those 74,015,730 shares of the Public Company’s
common stock presently owned by SeD Home International were validly
issued by the Public Company.
(d) Authority;
Non-contravention. The Public Company and the Merger Sub have all
requisite authority to enter into this Agreement and to consummate
the transactions contemplated by this Agreement. The execution and
delivery of this Agreement by the Public Company and Merger Sub and
the consummation by the Public Company and Merger Sub of the
transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of the
Public Company and Merger Sub. This Agreement has been duly
executed and delivered by and constitutes a valid and binding
obligation of the Public Company and Merger Sub, enforceable in
accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions
of this Agreement will not, conflict with, or result in any breach
or violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of or “put” right with
respect to any obligation or to loss of a material benefit under,
or result in the creation of any lien upon any of the assets of the
Public Company or Merger Sub under, (i) the Articles of
Incorporation or bylaws of the Public Company or Merger Sub or the
comparable charter or organizational documents of any other
Subsidiary of the Public Company or Merger Sub, (ii) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license
applicable to the Public Company, Merger Sub or their respective
properties or assets, or (iii) subject to the governmental filings
and other matters referred to in the following sentence, any
judgment, order, decree, statute, law, ordinance, rule, regulation
or arbitration award applicable to the Public Company, Merger Sub
or their respective assets other than, in the case of clauses (ii)
and (iii), any such conflicts, breaches, violations, defaults,
rights, losses or liens that individually or in the aggregate could
not have a Material Adverse Effect with respect to the Public
Company or Merger Sub or could not prevent, hinder or materially
delay the ability of the Public Company or Merger Sub to consummate
the transactions contemplated by this Agreement. No consent,
approval, order or authorization of, or registration, declaration
or filing with, or notice to, any governmental entity is required
by or with respect to the Public Company or Merger Sub in
connection with the execution and delivery of this Agreement by the
Public Company or Merger Sub or the consummation by the Public
Company or Merger Sub, as the case may be, of any of the
transactions contemplated by this Agreement, except for the filing
of the Certificate of Merger with the Secretary of State of the
State of Delaware, as required.
(e) SEC
Documents; Undisclosed Liabilities. The Public Company has filed
all reports, schedules, forms, statements and other documents as
required by the U.S. Securities and Exchange Commission (the
“SEC”) and the Public Company has delivered or made
available to SeD Home all reports, schedules, forms, statements and
other documents filed with the SEC (collectively, and in each case
including all exhibits and schedules thereto and documents
incorporated by reference therein, the “Public Company SEC
Documents”). The Public Company SEC Documents 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 promulgated thereunder applicable to such Public Company
SEC documents, and none of the Public Company SEC Documents
(including any and all consolidated financial statements included
therein) as of such date contained any untrue statement of a
material fact or omitted 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. None of the Public Company SEC Documents contains
any untrue statement of a material fact or omits to state any
material fact or omitted 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. The consolidated financial statements of the Public
Company included in such Public Company SEC Documents comply as to
form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with
generally accepted accounting principles (except, in the case of
unaudited consolidated quarterly statements, as permitted by Form
10-Q of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and
fairly present the consolidated financial position of the Public
Company and its consolidated subsidiaries as of the dates thereof
and the consolidated results of operations and changes in cash
flows for the periods then ended (subject, in the case of unaudited
quarterly statements, to normal year-end audit adjustments as
determined by the Public Company’s independent accountants).
Except as set forth in the Public Company SEC Documents, at the
date of the most recent audited financial statements of the Public
Company included in the Public Company SEC Documents, neither the
Public Company nor any of its subsidiaries had, and since such date
neither the Public Company nor any of such subsidiaries has
incurred, any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) which, individually or
in the aggregate, could reasonably be expected to have a Material
Adverse Effect with respect to the Public Company.
(f)
Absence of Certain Changes or Events. Except as disclosed in the
Public Company SEC Documents, since the date of the most recent
financial statements included in the Public Company SEC Documents,
there is not and has not been: (i) any Material Adverse Change with
respect to the Public Company or Merger Sub; or (ii) any condition,
event or occurrence which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or give
rise to a Material Adverse Change with respect to the Public
Company or Merger Sub.
(g)
Litigation; Compliance with Laws.
(i)
There is no suit, action or proceeding or investigation pending or
threatened against or affecting the Public Company or Merger Sub or
any basis for any such suit, action, proceeding or investigation
that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect with respect to the
Public Company or Merger Sub or prevent, hinder or materially delay
the ability of the Public Company or Merger Sub to consummate the
transactions contemplated by this Agreement, nor is there any
judgment, decree, injunction, rule or order of any governmental
entity or arbitrator outstanding against the Public Company or
Merger Sub having, or which, insofar as reasonably could be
foreseen by the Public Company or Merger Sub, in the future could
have, any such effect.
(ii)
The conduct of the business of the Public Company has complied with
all statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees or arbitration awards applicable
thereto.
(h) Material
Contract Defaults. The Public Company and Merger Sub are not, or
have not, received any notice or have any knowledge that any other
party is, in default in any respect under any Material Contract;
and there has not occurred any event that with the lapse of time or
the giving of notice or both would constitute such a material
default. For purposes of this Agreement, a “Material
Contract” means any contract, agreement or commitment that is
effective as of the Closing Date to which the Public Company or
Merger Sub is a party (i) with expected receipts or expenditures in
excess of $25,000, (ii) requiring the Public Company or Merger Sub
to indemnify any person, (iii) granting exclusive rights to any
party, (iv) evidencing indebtedness for borrowed or loaned money in
excess of $25,000 or more, including guarantees of such
indebtedness, or (v) which, if breached by the Public Company or
Merger Sub in such a manner would (A) permit any other party to
cancel or terminate the same (with or without notice of passage of
time) or (B) provide a basis for any other party to claim money
damages (either individually or in the aggregate with all other
such claims under that contract) from the Public Company or Merger
Sub or (C) give rise to a right of acceleration of any material
obligation or loss of any material benefit under any such contract,
agreement or commitment.
(i) Financial
Statements. The audited financial statements and unaudited interim
financial statements of the Public Company included in the SEC
Documents (i) complied as to form in all material respects with
applicable accounting requirements and, as appropriate, the
published rules and regulations of the SEC with respect thereto
when filed, (ii) were prepared in accordance with GAAP applied on a
consistent basis throughout the periods covered thereby (except as
may be indicated therein or in the notes thereto, and in the case
of quarterly financial statements, as permitted by Form 10-Q under
the Exchange Act), (iii) fairly present the consolidated financial
condition, results of operations and cash flows of the Public
Company as of the respective dates thereof and for the periods
referred to therein, and (iv) are consistent with the books and
records of the Public Company.
(j) Undisclosed
Liabilities. Neither of the Public Company nor the Merger Sub has
any liability (whether known or unknown, whether absolute or
contingent, whether liquidated or unliquidated and whether due or
to become due), except for (a) liabilities shown on the balance
sheet contained in the most recent Form 10-Q filed with the SEC,
(b) liabilities which have arisen since the date of the balance
sheet contained in the most recent Form 10-Q filed with the SEC in
the ordinary course of business which do not exceed $25,000.00 in
the aggregate and (c) contractual and other liabilities incurred in
the ordinary course of business which are not required by GAAP to
be reflected on a balance sheet.
ARTICLE IV.
INDEMNIFICATION AND RELATED MATTERS
4.01
Survival of Representations and Warranties. The representations and
warranties of the parties made in Article III of this Agreement
shall not survive beyond the ten (10) year anniversary of the
Effective Time.
4.02
Indemnification by the Public Company. The Public Company shall
indemnify SeD Home International in respect of, and hold it
harmless against, loss, liability, deficiency, damages, expense or
cost (including without limitation amounts paid in settlement,
interest, court costs, costs of investigators, fees and expenses of
attorneys, accountants, financial advisors and other experts, and
other expenses of litigation, arbitration or otherwise)
(“Damages”) incurred or suffered by SeD Home
International resulting from:
(a) any
misrepresentation, inaccurate representation, including but not
limited to any inaccurate representation regarding the validity of
shares previously issued or to be issued to SeD Home International
or any predecessor in interest thereof, breach of warranty or
failure to perform any covenant or agreement of Public Company or
Merger Sub contained in this Agreement;
(b) any
claim by a stockholder or former stockholder of the Public Company
or any other person or entity, seeking to assert, or based upon:
(i) ownership or rights to ownership of any shares of the common
stock of the Public Company; (ii) any rights under the certificate
of incorporation or bylaws of the Public Company or Merger Sub;
(iii) any claim that his, her or its shares of common stock lost
value as a result of the transactions contemplated hereby; or (iv)
any claim that any shares of the Public Company’s common
stock are not validly owned by SeD Home International, including
but not limited to those 74,015,730 shares of the Public
Company’s common stock owned by SeD Home International prior
to the Closing Date or the 630,000,000 shares of the Public
Company’s common stock to be issued hereby or any challenge
to any issuance of shares of the Public Company’s common
stock to any predecessor to SeD Home International.
ARTICLE V.
GENERAL PROVISIONS
5.01
Notices. All notices, demands, requests, consents, approvals, and
other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i)
personally served, (ii) deposited in the mail, registered or
certified, return receipt requested, postage prepaid, (iii)
delivered by reputable air courier service with charges prepaid, or
(iv) transmitted by hand delivery, telegram, or facsimile,
addressed as set forth below or to such other address as such party
shall have specified most recently by written notice. Any notice or
other communication required or permitted to be given hereunder
shall be deemed effective (a) upon hand delivery or delivery by
facsimile, with accurate confirmation generated by the transmitting
facsimile machine, at the address or number designated below (if
delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the
first business day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be:
(a) if
to the Public Company or Merger Sub:
SeD
Intelligent Home Inc.
0000
Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
(b) if
to SeD Home and SeD Home International, Inc.:
SeD
Home, Inc.
0000
Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
5.02
Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement. Whenever the words
“include”, “includes” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation”.
5.03
Entire Agreement. This Agreement constitutes the entire agreement,
and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of
this Agreement.
5.04
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to
principles of conflicts of laws. Any action brought by either party
hereto against the other concerning the transactions contemplated
by this Agreement shall be brought only in the state courts of
Delaware or in the federal courts located in the state of Delaware.
The parties to this Agreement hereby irrevocably waive any
objection to jurisdiction and venue of any action instituted
hereunder and shall not assert any defense based on lack of
jurisdiction or venue or based upon forum non conveniens. The
parties hereto agree to submit to the in person am jurisdiction of
such courts and hereby irrevocably waive trial by jury. The
prevailing party shall be entitled to recover from the other party
its reasonable attorney’s fees and costs.
5.05
Assignment. Neither this Agreement nor any of the rights, interests
or obligations under this Agreement shall be assigned, in whole or
in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties, except that
SeD Home International may assign its rights hereunder without the
consent of the other parties hereto. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective
successors and assigns.
5.06
Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision
or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained
herein.
5.07
Counterparts. This Agreement may be executed in one or more
identical counterparts, all of which shall be considered one and
the same instrument and shall become effective when one or more
such counterparts shall have been executed by each of the parties
and delivered to the other parties.
[signature
page follows]
IN WITNESS WHEREOF, the undersigned have
caused their duly authorized officers to execute this Agreement as
of the date first above written.
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SED
INTELLIGENT HOME INC., as Public Company
By:
/s/ Rongguo Wei
Name: Rongguo
Wei
Title:
Chief Financial Officer
SED
ACQUISITION CORP., as Merger Sub
By:
/s/ Rongguo Wei
Name: Rongguo
Wei
Title:
Chief Financial Officer
SED
HOME INTERNATIONAL, INC.
By: /s/ Xxx X. Xxxx
Name: Xxx X. Xxxx
Title: Chairman
SED
HOME, INC.
By: /s/ Xxx X. Xxxx
Name: Xxx X. Xxxx
Title: Chairman and
Co-Chief Executive Officer
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EXHIBIT A
FORM OF CERTIFICATE OF MERGER
CERTIFICATE OF MERGER
OF
SED ACQUISITION CORP.
INTO
SED HOME, INC.
Pursuant to Section 251 of the Delaware General Corporation
Law
The
undersigned, being the surviving corporation, hereby sets forth as
follows:
FIRST:
The name of the surviving corporation is SeD Home, Inc.; its state
of incorporation is Delaware.
SECOND:
The name of the non-surviving corporation is SeD Acquisition Corp.;
its state of incorporation is Delaware.
THIRD:
An Agreement of Merger has been approved, adopted, certified,
executed and acknowledged by each constituent corporation in
accordance with Section 251 of the State of Delaware General
Corporation Law.
FOURTH:
The Certificate of Incorporation of SeD Home, Inc. shall be the
Certificate of Incorporation of the surviving
corporation.
FIFTH:
The executed Agreement of Merger is on file at a place of business
of the surviving corporation; the address of said place of business
is c/o SeD Home, Inc., 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
XX 00000.
SIXTH:
A copy of the Agreement of Merger will be furnished by the
surviving corporation, on request and without cost, to any
stockholder of any constituent corporation.
IN WITNESS WHEREOF, this certificate is
hereby executed this 29th day of December, 2017.
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SeD
Home, Inc.
/s/ Rongguo Wei
Name: Rongguo
Wei
Title:
Co-Chief Financial Officer
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