ACQUISITION AGREEMENT AND PLAN OF MERGER
Exhibit 10.13
ACQUISITION AGREEMENT AND PLAN OF MERGER
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”).
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.
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.
1.03
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.
1.05
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.
ARTICLE II.
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.”
2.05
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.
(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.
(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.
(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.
(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.
(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.
ARTICLE IV.
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.
(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.
(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
[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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