AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER (“Agreement”) made this 9th day of February, 2010 by and
among X.X.X. Taste on Demand Inc., a Nevada corporation (the “Parent”), China
Environmental Protection Inc., a Nevada corporation wholly owned by the Parent
(the “Merger Sub”), Dragon Path International Limited, a British Virgin Islands
corporation (the “Company”), and Xxxxxx Xxxx, the sole
shareholder of the Company (the “Sellers”).
RECITALS:
A.
The respective Boards of Directors of the Parent and the Company have
determined that an acquisition of the Company by the Merger Sub and then the
merger of the Merger Sub with and into the Parent (the “Merger”), upon the terms
and subject to the conditions set forth in this Agreement, would be fair and in
the best interests of their respective shareholders, and such Boards of
Directors have approved such Merger, pursuant to which shares of Common Stock of
the Company (“Company Common Stock”) issued and outstanding immediately prior to
the Effective Time of the Merger (as defined in Section 1.03) and all securities
convertible or exchangeable into Company Common Stock (including by reservation
for future issuances) will be exchanged for the right to receive approximately
95% of Common Stock of the Parent (“Parent Common Stock”) other than Dissenting
Shares (as defined in Section 2.01(d)).
B.
The Parent, the Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
C.
For federal income tax purposes, the parties intend that the Merger shall
qualify as reorganization under the provisions of Section 368 of the Internal
Revenue Code of 1986, as amended (the “Code”).
NOW,
THEREFORE, in consideration of the representations, warranties, covenants and
agreements contained in this Agreement, the parties agree as
follows:
ARTICLE
I:
THE
MERGER AND MERGER CONSIDERATION
1.01
The Merger and
Consideration. Upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with the Nevada Revised Statutes (the "Nevada
Statutes"), Merger Sub shall acquire the Company and then shall be merged with
and into the Parent at the Effective Time of the Merger. The Company will
become a wholly owned subsidiary of the Parent upon which the Merger Sub shall
no long exist, and Parent’s name will change to Merger Sub’s name, pursuant to
section 92A.180 of the Nevada Statutes. The Merger Sub shall issue to the
Sellers and their designees, (1) 100 shares or such number of shares of the
common stock of the Merger Sub which shall constitute no more than 10% ownership
interest in the Merger Sub and which shall be converted into approximately
16,150,000 shares of the Parent Common Stock (after the split pursuant to
section 1.08 below is effected) in exchange for all the shares of the capital
stock of the Company. Upon the completion of the Merger, the Sellers and their
designees shall own 95% of Parent Common Stock issued and
outstanding.
1.02
Closing. Unless this
Agreement shall have been terminated and the transactions herein contemplated
shall have been abandoned pursuant to Section 7.01 and subject to the
satisfaction or waiver of the conditions set forth in Article VI, the closing of
the Merger (the “Closing”) will take place at 10:00 a.m. on the business day
upon satisfaction of the conditions set forth in Article VI (or as soon as
practicable thereafter following satisfaction or waiver of the conditions set
forth in Article VI) (the “Closing Date”), at the offices of Xxxxxxxx Xxxxxxx
LLP in New York, unless another date, time or place is agreed to in writing by
the parties hereto.
1.03
Effective Time of
Merger. As soon as practicable following the satisfaction or waiver of
the conditions set forth in Article VI, the parties shall file articles of
merger (the "Articles of Merger") executed in accordance with the relevant
provisions of the Nevada Statutes and shall make all other filings or recordings
required under Nevada Statutes and the Securities and Exchange Commission (the
“SEC”). The Merger shall become effective at such time as the Articles of
Merger are duly filed with the Secretary of State of Nevada or at such other
time as is permissible in accordance with Nevada Statutes and as Parent and the
Company shall agree should be specified in the Articles of Merger (the time the
Merger becomes effective being the "Effective Time of the Merger"). Parent and
the Company shall use reasonable efforts to have the Closing Date and the
Effective Time of the Merger to be the same day.
1.04
Effects of the
Merger. The Merger shall have the effects set forth in the applicable
provisions of the Nevada Statutes and the Articles of Merger.
1.05
Articles of Incorporation;
Bylaws; Purposes.
(a)
The Certificate of Incorporation of the Parent in effect immediately
prior to the Effective Time of the Merger shall be the Certificate of
Incorporation of the Parent until thereafter changed or amended as provided
therein or by applicable law.
(b)
The Bylaws of the Parent in effect at the Effective Time of the
Merger shall be the Bylaws of the Parent until thereafter changed or amended as
provided therein or by applicable law.
(c) The
purposes of the Parent and the total number of its authorized capital stock
shall be as set forth in the Certificate of Incorporation of the Parent in
effect immediately prior to the Effective Time of the Merger until such time as
such purposes and such number may be amended as provided in the Certificate of
Incorporation of the Parent and by applicable law.
1.06
Directors. Xx. Xxxxxx Xx shall become
a director of the Company at the Effective Time of the Merger and Xx.
Xxxxx Xxxxxxx, a director of the Company will
resign at the Effective Time. At the later to occur of (i) Effective
Time of the Merger and (ii) 10 days after the mailing of an
information statement pursuant to Rule 14f-1 of the Exchange Act (the
“Information
Statement”), Xx.Xxxxxxx Xx shall become a director
of the Company and Xx. Xxxxx Xxxxxx will resign as a director of the
Company.
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1.07
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Officers. The
officers of the Company at the Effective Time of the Merger shall be the
officers of the Parent, until the earlier of their resignation or removal
or until their respective successors are duly elected and qualified, as
the case may be.
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1.08
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Stock
Split. Immediately following the execution of this
Agreement, Parent shall take all actions required to affect a
4.61896118-for 1 reverse split of the outstanding
Common Stock of Parent, so
that after such split there will be
approximately issued and outstanding 850,000 shares of common stock of
Parent.
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ARTICLE
II:
EFFECT OF
THE MERGER ON THE CAPITAL STOCK
OF THE
CONSTITUENT CORPORATIONS
2.01
Effect on
Capital Stock. As of the Effective Time of the Merger, by virtue of the
Merger and without any action on the part of the holders of shares of Company
Common Stock or any shares of capital stock of the Merger Sub:
(a)
Common Stock of the Merger Sub. Each share of common stock of the Merger Sub
issued and outstanding immediately prior to the Effective Time of the Merger
shall be converted into shares of Parent Common Stock and shall be the issued
and outstanding capital stock of the Parent.
(b)
Cancellation of Parent-Owned Merger Sub Common Stock. Each share of Common Stock
of the Merger Sub that is owned by the Parent shall automatically be cancelled
and retired and shall cease to exist, and no Parent Common Stock or other
consideration shall be delivered or deliverable in exchange
therefor.
(c)
Conversion of Company Common Stock. Except as otherwise provided herein,
each issued and outstanding share of Company Common Stock shall be converted
into fully paid and nonassessable shares of Parent Common Stock in accordance
with the Exchange Ratio described in Section 2.02.
(d)
Dissenting Shares. Notwithstanding anything in
this Agreement to the contrary, shares of Company Common Stock issued and
outstanding immediately prior to the Effective Time of the Merger held by a
holder (if any) who has the right to demand payment for and an appraisal of such
shares as provided under the Nevada Statues, if applicable (“Dissenting Shares”)
shall not be converted into a right to receive Merger Consideration unless such
holder fails to perfect or otherwise loses such holder’s right to such payment
or appraisal, if any. If, after the Effective Time of the Merger, such holder
fails to perfect or loses any such right to appraisal, each such share of such
holder shall be treated as a share that had been converted as of the Effective
Time of the Merger into the right to receive Merger Consideration in accordance
with this Section 2.01. The Company shall give prompt notice to the Parent of
any demands received by the Company for appraisal of shares of Company Common
Stock, and the Parent shall have the right to participate in all negotiations
and proceedings with respect to such demands. The Company shall not, except with
the prior written consent of the Parent, make any payment with respect to, or
settle or offer to settle, any such demands.
2.02
Exchange Ratio. The
“Exchange Ratio” is as follows: Each share of the common stock of the Merger Sub
shall be converted into shares of Parent Common Stock in the Merger, an Exchange
Ratio of 1: 161,500.00, meaning that for one (1) share of common stock of the
Merger Sub owned by the Sellers they shall receive 161,500.00 shares of Parent
Common Stock.
2.03
Stock Warrants. At
the Effective Time of the Merger, there will be no outstanding warrants, options
or any other convertible securities to purchase Parent Common
Stock.
2.04
Exchange of
Certificates.
(a)
Exchange of Certificates. As soon as reasonably practicable as of or after the
Effective Time of the Merger, the Parent shall issue the Parent Shares, for the
benefit of the holders of shares of Company Common Stock, for exchange in
accordance with this Article II.
(b) Settlement
Date. The settlement date as set forth herein shall be such date which is six
months from the Effective Time of the Merger and the date of the resolution of
any Contests further to Section 8.03 herein.
(c) Exchange
Procedures. At the Effective Time of the Merger, each holder of an outstanding
certificate or certificates which prior thereto represented shares of Company
Common Stock shall, upon surrender of such certificate or certificates and
acceptance be entitled to a certificate or certificates representing the number
of shares of Parent Common Stock into which the aggregate number of shares of
Company Common Stock previously represented by such certificate or certificates
surrendered shall have been converted pursuant to this Agreement. The Sellers
shall accept such certificates upon compliance with such reasonable terms and
conditions to affect an orderly exchange thereof in accordance with normal
exchange practices. All shares of Company Common Stock shall be surrendered at
the Effective Time of the Merger. After the Effective Time of the Merger, there
shall be no further transfer on the records of the Company or its transfer agent
of certificates representing shares of Company Common Stock. If any certificate
for such Parent Common Stock is to be issued in a name other than that in which
the certificate for Company Common Stock surrendered for exchange is registered,
it shall be a condition of such exchange that the certificate so surrendered
shall be properly endorsed, with signature guaranteed, or otherwise in proper
form for transfer and that the person requesting such exchange shall pay to the
Parent or its transfer agent any transfer or other taxes or other costs required
by reason of the issuance of certificates for such Parent Common Stock in a name
other than that of the registered holder of the certificate surrendered, or
establish to the satisfaction of the Parent or its transfer agent that all taxes
have been paid.
(d)
No Further Ownership
Rights in Company Common Stock. All shares of Parent Common Stock issued upon
the surrender for exchange of certificates representing shares of Company Common
Stock in accordance with the terms of this Article II shall be deemed to have
been issued (and paid) in full satisfaction of all rights pertaining to the
shares of Company Common Stock theretofore represented by such
certificates. The
holders of certificates formerly representing shares of Company Common Stock
shall cease to have any rights as shareholders of the Company, except such
rights, if any, as they
may have as dissenting shareholders. Until certificates
representing the Company Common Stock are surrendered for exchange, the
certificates of each holder shall, after the Effective Time, represent for all
purposes only the right to receive Parent Shares.
(e)
No Liability. None of the Parent, the Merger Sub, or the Company shall be liable
to any person in respect of any shares of Parent Common Stock (or dividends or
distributions with respect thereto) delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law. All certificates
representing shares of Company Common Stock shall have been surrendered at the
Effective Time of the Merger.
2.05 Registration
Exemption. It is intended that the Parent Shares to be issued
pursuant to this Agreement will be issued pursuant to Section 4(2) of the
Securities Act and therefore shall not require registration under the Securities
Act of 1933, as amended (the “Securities Act”) or any other applicable
law.
2.06 Restrictive
Legends. Certificates evidencing the Parent Shares pursuant to
this Agreement may bear the following legend, and any other legend required by
the laws of any jurisdiction in which a holder of Parent Shares resides, and any
legend required by applicable law, including without limitation, any legend that
will be useful to aid compliance with Regulation D or other regulations adopted
by the SEC under the Securities Act:
“THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED OR UNLESS TRANSFERRED PURSUANT TO A VALID EXEMPTION
FROM REGISTRATION AVAILABLE UNDER SUCH ACT.”
ARTICLE
III:
REPRESENTATIONS
AND WARRANTIES
3.01
Representations and
Warranties of the Company. Except as set forth in the Company Disclosure
Schedule delivered by the Company to the Parent at the time of execution of this
Agreement, the Company represents and warrants to the Parent and the Merger Sub
as follows:
(a)
Organization, Standing and Corporate Power. The Company is duly organized,
validly existing and in good standing under the laws of British Virgin Islands
and has the requisite corporate power and authority to carry on its business as
now being conducted. The Company is duly qualified or licensed to do business
and is in good standing in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties 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 (as defined in Section 10.02) with respect to the
Company.
(b)
Subsidiaries. The Company owns 100% of the ownership interest of Yixing Dragon
Path Environment Technology Limited (“Dragon”) and 25% of the ownership interest
Jiangsu Jinyu Environmental Engineering Co., Ltd. (“Jinyu”) formed respectively
under the laws of China. In addition, the Company has effective control via a
VIE structure over Jiangsu Zhenyu Environmental Protection Technology Co.
(“Zhenyu”) Ltd, a company formed under the laws of China, 75% owner of Jinyu.
Dragon, Jinyu and Zhenyu are collectively referred to as “Company Subs”. The
Company has no interest in any other company, corporation, partnership, joint
venture or otherwise other than the Company Subs.
3.02 Capital
Structure. The authorized capital stock of the Company consists of 50,000 shares
of Company Common Stock. There are 10,000 shares of Common Stock
outstanding, all of which are owned by the Sellers No shares of
capital stock or other equity securities of the Company are issued, reserved for
issuance or outstanding. All outstanding shares of capital stock of the Company
are duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. There are no outstanding bonds, debentures, notes
or other indebtedness or other securities of the 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 Company may vote. The Company
Disclosure Schedule sets forth the outstanding capitalization of the Company.
There are no outstanding securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind to which the
Company is a party or by which it is bound obligating the Company to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock or other equity or voting securities of the Company or obligating
the 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 Company to repurchase, redeem or otherwise acquire or make
any payment in respect of any shares of capital stock of the Company. There are
no agreements or arrangements pursuant to which the Company is or could be
required to register shares of Company Common Stock or other securities under
the Securities Act or other agreements or arrangements with or among any
security holders of the Company with respect to securities of the
Company.
(a)
Authority; Noncontravention. The Company has the requisite corporate
and other power and authority to enter into this Agreement and to consummate the
Merger. The execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company.
This Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions hereof 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 properties or assets of the Company under, (i) the Articles of
Incorporation or Bylaws of the Company, (ii) any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to the Company, its 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 Company, its
properties or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any federal, state or
local government or any court, administrative agency or commission or other
governmental authority, agency, domestic or foreign (a “Governmental Entity”),
or to any other person is required by or with respect to the Company in
connection with the execution and delivery of this Agreement by the Company or
the consummation by the Company of the transactions contemplated hereby, except,
with respect to this Agreement, for the filing of the Certificate of Merger with
the Secretary of State of Nevada.
(b)
Financial Statements. (i) The Parent has received a copy of the audited
consolidated financial statements of the Company and Company Subs for the fiscal
year ended September 30, 2008 and September 30, 2009 (collectively,
the “Financial Statements”). The Financial Statements fairly present the
financial condition of the Company at the dates indicated and its results of
their operations and cash flows for the periods then ended and, except as
indicated therein, reflect all claims against, debts and liabilities of the
Company, fixed or contingent, and of whatever nature. (ii) Since September 30,
2009 (the “Balance Sheet Date”), there has been no material adverse change in
the assets or liabilities, or in the business or condition, financial or
otherwise, or in the results of operations or prospects, of the Company, whether
as a result of any legislative or regulatory change, revocation of any license
or rights to do business, fire, explosion, accident, casualty, labor trouble,
flood, drought, riot, storm, condemnation, act of God, public force or otherwise
and no material adverse change in the assets or liabilities, or in the business
or condition, financial or otherwise, or in the results of operation or
prospects, of the Company except in the ordinary course of business. (iii) Since
the Balance Sheet Date, the Company has not suffered any damage, destruction or
loss of physical property (whether or not covered by insurance) affecting its
condition (financial or otherwise) or operations (present or prospective), nor
has the Company issued, sold or otherwise disposed of, or agreed to issue, sell
or otherwise dispose of, any capital stock or any other security of the Company
and has not granted or agreed to grant any option, warrant or other right to
subscribe for or to purchase any capital stock or any other security of the
Company or has incurred or agreed to incur any indebtedness for borrowed
money.
(c)
Absence of Certain Changes or Events. Since the Balance Sheet Date, the Company
has conducted its business only in the ordinary course consistent with past
practice, and there is not and has not been: (i) any material adverse change
with respect to the Company; (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
Company; (iii) any event which, if it had taken place following the execution of
this Agreement, would not have been permitted by Section 4.01 without prior
consent of the Parent; or (iv) any condition, event or occurrence which could
reasonably be expected to prevent, hinder or materially delay the ability of the
Company to consummate the transactions contemplated by this
Agreement.
(d)
Litigation; Labor Matters; Compliance with Laws.
(i)
There is no suit, action or proceeding or investigation pending or, to
the knowledge of the Company, threatened against or affecting the Company 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 Company or prevent, hinder or materially delay the
ability of the Company 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 Company having, or
which, insofar as reasonably could be foreseen by the Company, in the future
could have, any such effect.
(ii)
The Company is not a party to, or bound by, any collective bargaining
agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is it the subject of any proceeding asserting that it
has committed an unfair labor practice or seeking to compel it to bargain with
any labor organization as to wages or conditions of employment nor is there any
strike, work stoppage or other labor dispute involving it pending or, to its
knowledge, threatened, any of which could have a material adverse effect with
respect to the Company.
(iii)
The conduct of the business of the Company complies with all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or arbitration awards
applicable thereto.
(e)
Benefit Plans. The Company is not a party to any collective bargaining agreement
or any bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, phantom stock, retirement,
vacation, severance, disability, death benefit, hospitalization, medical or
other plan, arrangement or understanding (whether or not legally binding) under
which the Company currently has an obligation to provide benefits to any current
or former employee, officer or director of the Company (collectively, “Benefit
Plans”).
(f)
Certain Employee Payments. The Company is not a party to any employment or other
agreement which could result in the payment to any current, former or future
director, officer, or employee of the Company of any money or other property or
rights or accelerate or provide any other rights or benefits to any such person
as a result of the transactions contemplated by this Agreement, whether or not
(i) such payment, acceleration or provision would constitute a “parachute
payment” (within the meaning of Section 280G of the Code), or (ii) some other
subsequent action or event would be required to cause such payment, acceleration
or provision to be triggered.
(g)
Tax Returns and Tax Payments. The Company has timely filed all Tax Returns
required to be filed by it, has paid all Taxes shown thereon to be due and has
provided adequate reserves in its financial statements for any Taxes that have
not been paid, whether or not shown as being due on any returns. No material
claim for unpaid Taxes has been made or become a lien against the property of
the Company or is being asserted against the Company, no audit of any Tax Return
of the Company is being conducted by a tax authority, and no extension of the
statute of limitations on the assessment of any Taxes has been granted by the
Company and is currently in effect. As used herein, “Taxes” shall mean all taxes
of any kind, including, without limitation, those on or measured by or referred
to as income, gross receipts, sales, use, ad valorem, franchise, profits,
license, withholding, payroll, employment, excise, severance, stamp, occupation,
premium value added, property or windfall profits taxes, customs, duties or
similar fees,, assessments or charges of any kind whatsoever, together with any
interest and any penalties, additions to tax or additional amounts imposed by
any governmental authority, domestic or foreign. As used herein, “Tax Return”
shall mean any return, report or statement required to be filed with any
governmental authority with respect to Taxes.
(h) Environmental
Matters. The Company is in compliance with all applicable Environmental Laws.
“Environmental Laws” means all applicable statutes, rules, regulations,
ordinances, orders, decrees and common law relating in any manner to
contamination, pollution or protection of human health or the environment, and
similar state laws.
(i)
Material Contract Defaults. The Company is not, or has not received any notice
or has 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 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 Company is a
party (i) with expected receipts or expenditures in excess of $50,000, (ii)
requiring the Company to indemnify any person, (iii) granting exclusive rights
to any party, (iv) evidencing indebtedness for borrowed or loaned money in
excess of $50,000 or more, including guarantees of such indebtedness, or (v)
which, if breached by the Company 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 Company 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. No consent of any party to any Material Contract is required in
connection with the execution, delivery and performance of this Agreement or the
Merger.
(j)
Properties. The Company has good, clear and marketable title to all the tangible
properties and tangible assets reflected in the latest balance sheet as being
owned by the Company or acquired after the date thereof which are, individually
or in the aggregate, material to the Company’s business (except properties sold
or otherwise disposed of since the date thereof in the ordinary course of
business), free and clear of all material liens.
(k)
Trademarks and Related Contracts.
(i) As
used in this Agreement, the term “Trademarks” means trademarks, service marks,
trade names, Internet domain names, designs, slogans, and general intangibles of
like nature; the term “Trade Secrets” means technology; trade secrets and other
confidential information, know-how, proprietary processes, formulae, algorithms,
models, and methodologies; the term “Intellectual Property” means patents,
copyrights, Trademarks, applications for any of the foregoing, and Trade
Secrets; the term “Company License Agreements” means any license agreements
granting any right to use or practice any rights under any Intellectual Property
(except for such agreements for off-the-shelf products that are generally
available for less than $25,000), and any written settlements relating to any
Intellectual Property, to which the Company is a party or otherwise bound; and
the term “Software” means any and all computer programs, including any and all
software implementations of algorithms, models and methodologies, whether in
source code or object code.
(ii)
To the knowledge of the Company, none of the Company’s Intellectual Property or
Company License Agreements infringe upon the rights of any third party that may
give rise to a cause of action or claim against the Company or its
successors.
(iii) The
Company owns and has good and exclusive title to each item of the Company
Intellectual Property free and clear of any lien except for Company Intellectual
Property for which the Company has a license for which each such license is
sufficient for the conduct of its business as currently conducted.
(iv) Each
item of Company Intellectual Property is valid and subsisting, and to the extent
registration of Company Intellectual Property has been sought, all necessary
registration, maintenance and renewal fees currently due in connection with such
Intellectual Property have been made and all necessary documents, recordations
and certificates in connection with such Company Intellectual Property have been
filed with the relevant patent, copyright, trademark or other authorities in the
United States or foreign jurisdictions, as the case may be, for the purposes of
maintaining such Company Intellectual Property.
(l) Board
Recommendation. The Board of Directors of the Company has unanimously determined
that the terms of the Merger are fair to and in the best interests of the
shareholders of the Company and recommended that the holders of the shares of
Company Common Stock approve the Merger.
(m)
Required Company Vote. The affirmative vote of a majority of the shares of
each of the Company Common Stock is the only vote of the holders of any class or
series of the Company’s securities necessary to approve the Merger (the “Company
Shareholder Approval”).
(n) Debts and
Guaranties. As of the Closing, the Company will have no
indebtedness or liabilities(whether accrued, absolute, contingent or otherwise)
other than as set forth in the Financial Statements. In addition, the Company is
not directly or indirectly (a) liable, by guarantee or otherwise, upon or with
respect to, or (b) obligated to provide funds with respect to, or to guarantee
or assume, any Indebtedness or other obligation of any person.
(o) Affiliated
Transactions. No affiliate or other family member has directly
or indirectly (i) borrowed or been advanced funds from or loaned funds to the
Company, (ii) is a party to a Contract with the Company or (iii) engaged in any
transaction with the Company.
(q) Accuracy. No
representation or warranty of the Company in this Agreement omits to state a
material fact necessary to make the statements herein, in light of the
circumstances in which they were made, not misleading. There is no fact known to
the Company that materially adversely affects or, as far as can be reasonably
foreseen, materially threatens, the assets, business, prospects, financial
condition, or results of operations of the Company that has not been set forth
in this Agreement.
3.03 Representations and
Warranties of Company Subs. Except as set forth in the Company Disclosure
Schedule delivered by the Company to the Parent at the time of execution of this
Agreement, the Company and the Sellers, jointly and severally, each represents
and warrants to the Parent and the Merger Sub as follows:
(a)
Organization, Standing and Corporate Power. Company Subs are duly
organized, validly existing and in good standing under the laws of China and has
the requisite corporate power and authority to carry on its business as now
being conducted. Company Subs are duly qualified or licensed to do business and
are in good standing in each jurisdiction in which the nature of their business
or the ownership or leasing of their properties 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 (as defined in Section 10.02) with respect to Company
Subs.
(b)
Subsidiaries: The Company Subs are 100% owned or effectively controlled by the
Company and shall remain wholly owned or effectively controlled subsidiaries of
the Company following the Merger.
(c) Capital
Structure. Except as set forth in the Financial Statements, no shares of capital
stock or other equity securities of Company Subs are issued, reserved for
issuance or outstanding. All outstanding equity ownership interest in Company
Subs are duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. There are no outstanding bonds, debentures, notes
or other indebtedness or other securities of Company Subs having the right to
vote (or convertible into, or exchangeable for, securities having the right to
vote) on any matters on which shareholders of Company Subs may vote. The Company
Disclosure Schedule sets forth the outstanding capitalization of Company Subs.
There are no outstanding securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind to which
Company Subs are a party or by which they are bound obligating Company Subs to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity or voting securities of Company Subs or
obligating Company Subs 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 Company Subs to repurchase, redeem or otherwise acquire or make
any payment in respect of any shares of capital stock of Company Subs. There are
no agreements or arrangements pursuant to which Company Subs are or could be
required to register shares of Company Common Stock or other securities under
the Securities Act or other agreements or arrangements with or among any
security holders of Company Subs with respect to securities of Company
Subs.
(d)
Authority; Noncontravention. This Agreement constitutes a valid and binding
obligation of Company Subs, enforceable against Company Subs in accordance with
its terms.] The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions hereof 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 properties or
assets of Company Subs under, (i) the Articles of Incorporation or Bylaws of
Company Subs, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to Company Subs, its 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 Company Subs, their properties or
assets. No consent, approval, order or authorization of, or registration,
declaration or filing with, or notice to, any Governmental Entity or any other
person, is required by or with respect to Company Subs in connection with the
execution and delivery of this Agreement by Company Subs or the consummation by
Company Subs of the transactions contemplated hereby, except, as set forth in
the Company Disclosure Schedule.
(e)
Absence of Certain Changes or Events. Since the Balance Sheet Date, other than
the ownership interest transfer of the Company Subs to the Company, if
applicable, each of the Company Subs has conducted its business only in the
ordinary course consistent with past practice, and there is not and has not
been: (i) any material adverse change with respect to Company Subs; (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 Company Subs; (iii) any event which, if
it had taken place following the execution of this Agreement, would not have
been permitted by Section 4.01 without prior consent of the Parent; or (iv) any
condition, event or occurrence which could reasonably be expected to prevent,
hinder or materially delay the ability of Company Subs to consummate the
transactions contemplated by this Agreement.
(f)
Litigation; Labor Matters; Compliance with Laws.
(i)
There is no suit, action or proceeding or investigation pending or, to the
knowledge of Company Subs, threatened against or affecting Company Subs 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 Company Subs or prevent, hinder or materially delay the
ability of Company Subs 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 Company Subs having, or
which, insofar as reasonably could be foreseen by Company Subs, in the future
could have, any such effect.
(ii)
None of the Company Subs is a party to, or bound by, any collective bargaining
agreement, contract or other agreement or understanding with a labor union or
labor organization, nor is any the subject of any proceeding asserting that it
has committed an unfair labor practice or seeking to compel it to bargain with
any labor organization as to wages or conditions of employment nor is there any
strike, work stoppage or other labor dispute involving it pending or, to its
knowledge, threatened, any of which could have a material adverse effect with
respect to Company Subs.
(iii)
The conduct of the business of Company Subs complies with all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or arbitration awards
applicable thereto.
(g)
Benefit Plans. None of the Company Subs is a party to any Benefit
Plans.
(h)
Certain Employee Payments. None of the Company Subs is a party to any employment
or other agreement which could result in the payment to any current, former or
future director officer, or employee of Company Subs of any money or other
property or rights or accelerate or provide any other rights or benefits to any
such person as a result of the transactions contemplated by this Agreement,
whether or not (i) such payment, acceleration or provision would constitute a
“parachute payment” (within the meaning of Section 280G of the Code), or (ii)
some other subsequent action or event would be required to cause such payment,
acceleration or provision to be triggered.
(i)
Tax Returns and Tax Payments. Each of the Company Subs has timely filed all Tax
Returns required to be filed by it, has paid all Taxes shown thereon to be due
and has provided adequate reserves in its financial statements for any Taxes
that have not been paid, whether or not shown as being due on any returns. No
material claim for unpaid Taxes has been made or become a lien against the
property of Company Subs or is being asserted against Company Subs, no audit of
any Tax Return of Company Subs is being conducted by a tax authority, and no
extension of the statute of limitations on the assessment of any Taxes has been
granted by Company Subs and is currently in effect.
(j)
Environmental Matters. Each of the Company Subs is in
material compliance with all applicable Environmental Laws.
(k)
Material Contract Defaults. None of the Company Subs is, nor have they received
any notice or has 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 Company Subs is a party (i) with expected receipts or expenditures in
excess of $50,000, (ii) requiring Company Subs to indemnify any person, (iii)
granting exclusive rights to any party, (iv) evidencing indebtedness for
borrowed or loaned money in excess of $50,000 or more, including guarantees of
such indebtedness, or (v) which, if breached by Company Subs 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 Company Subs 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.
(l)
Properties. Each of the Company Subs has good, clear and marketable title to all
the tangible properties and tangible assets reflected in the latest balance
sheet as being owned by Company Subs or acquired after the date thereof which
are, individually or in the aggregate, material to Company Subs’ business
(except properties sold or otherwise disposed of since the date thereof in the
ordinary course of business), free and clear of all material liens.
(m)
Trademarks and Related Contracts. To the knowledge of Company Subs, none of
Company Subs' Intellectual Property or Company License Agreements infringe
materially upon the rights of any third party that may give rise to a cause of
action or claim against Company Subs or their successors The Company Subs
own and have good and exclusive title to each item of the Company Subs
Intellectual Property free and clear of any lien except for Company Subs
Intellectual Property for which the Company Subs have a license for which each
such license is sufficient for the conduct of its business as currently
conducted.
Each item of Company Subs Intellectual
Property is valid and subsisting, and to the extent registration of Company Subs
Intellectual Property has been sought, all necessary registration, maintenance
and renewal fees currently due in connection with such Intellectual Property
have been made and all necessary documents, recordations and certificates in
connection with such Company Subs Intellectual Property have been filed with the
relevant patent, copyright, trademark or other authorities in the United States
or foreign jurisdictions, as the case may be, for the purposes of maintaining
such Company Subs Intellectual Property.
3.04
Representations and
Warranties of the Parent and the Merger Sub. Except as set forth in the
disclosure schedule delivered by the Parent to the Company at the time of
execution of this Agreement (the “Parent Disclosure Schedule”), the Parent and
the Merger Sub represent and warrant to the Company as follows:
(a)
Organization, Standing and Corporate Power. Each of the Parent and the Merger
Sub is (or at Closing will be) duly organized, validly existing and in good
standing under the laws of the State of Nevada, as is applicable, and has the
requisite corporate power and authority to carry on its business as now being
conducted. Each of the Parent and the Merger Sub is duly qualified or licensed
to do business and is in good standing in each jurisdiction in which the nature
of its business or the ownership or leasing of its properties 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 with respect to the Parent.
(b)
Subsidiaries. The Parent has two subsidiaries: Merger Sub and X.X.X. (2010) Inc.
("Spin-Off Sub"), both of which are Nevada corporations incorporated in
February, 2010. All the outstanding shares of capital stock of each such entity
have been validly issued and are fully paid and nonassessable and, except as set
forth in the Parent Disclosure Schedule, are owned (of record and beneficially)
by the Parent, free and clear of all liens. Except for the capital stock of its
subsidiaries, which are corporations, the Parent does not own, directly or
indirectly, any capital stock or other ownership interest in any corporation,
partnership, business association, joint venture or other entity.
(c)
Capital Structure. As of the date of this Agreement, the authorized capital
stock of the Parent consists of 160,000,000 shares of Parent Common Stock,
$0.001 par value, and 10,000,000 shares of preferred stock at $0.001 par value,
of which 3,926,117 shares of Parent Common Stock will be issued and outstanding
as of immediately prior to the Closing Date of the Merger and no shares of
Parent Common Stock are issuable upon the exercise of outstanding warrants,
convertible notes, and options and
otherwise. Immediately prior to the Closing and
after the stock split to be effected pursuant to section 1.08 of the Agreement,
there shall be 34,707,158, shares of Parent Common Stock $0.001 par value
authorized of which 850,000 shares of Parent Common Stock $0.001 par value will
be issued and outstanding and 10,000,000 shares of preferred stock at $0.001 par
value. Except as set forth above, no shares of capital stock or other
equity securities of the Parent are issued, reserved for issuance or
outstanding. All outstanding shares of capital stock of the Parent are, and all
shares which may be issued pursuant to this Agreement will be, when issued, duly
authorized, validly issued, fully paid and nonassessable, not subject to
preemptive rights, and issued in compliance with all applicable state and
federal laws concerning the issuance of securities. There are no outstanding
bonds, debentures, notes or other indebtedness or other securities of the Parent
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 Parent may
vote. Except as set forth above, there are no outstanding securities, options,
warrants, calls, rights, commitments, agreements, arrangements or undertakings
of any kind to which the Parent or any of its subsidiaries is a party or by
which any of them is bound obligating the Parent or any its subsidiaries to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity securities of the Parent or any of its
subsidiaries or obligating the Parent or any of its subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock or other equity securities of the Parent or any of its
subsidiaries or obligating the Parent or any of its subsidiaries 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
Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire or
make any payment in respect of any shares of capital stock of the Parent or any
of its subsidiaries.
(d)
Authority; Noncontravention. The Parent and Merger Sub have all requisite
corporate authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by the Parent and the Merger Sub and the consummation by the Parent
and the Merger Sub of the transactions contemplated by this Agreement have been
(or at Closing will have been) duly authorized by all necessary corporate action
on the part of the Parent and the Merger Sub. This Agreement has been duly
executed and delivered by and constitutes a valid and binding obligation of each
of the Parent and the Merger Sub, enforceable against each such party in
accordance with its terms. The execution and delivery of this agreement do 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 properties or assets of the Parent or any of its subsidiaries under,
(i) the articles of incorporation or bylaws of the Parent or the Merger Sub or
the comparable charter or organizational documents of any other subsidiary of
the Parent, (ii) any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise or license
applicable to the Parent, the Merger Sub or any other subsidiary of the Parent
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 Parent, the Merger Sub or any other subsidiary of the Parent
or their respective properties or 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 Parent or could not prevent, hinder or
materially delay the ability of the Parent 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 Parent, the Merger Sub or any other
subsidiary of the Parent in connection with the execution and delivery of this
Agreement by the Parent or the Merger Sub or the consummation by the Parent or
the 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 Nevada, as required, and and
compliance with applicable rules of the SEC, including without limitation, the
filing of a Current Report on Form 8-K regarding the consummation of the
Merger.
(e)
SEC Documents; Undisclosed Liabilities. The Parent has filed all reports,
schedules, forms, statements and other documents as required by the SEC and the
Parent has made available to the Company 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 “Parent SEC Documents”). As of their respective dates,
the Parent SEC Documents complied in all material respects with the requirements
of the Securities Act or the Securities Exchange Act of 1934, as the case may
be, and the rules and regulations of the SEC promulgated thereunder applicable
to such Parent SEC Documents, and none of the Parent 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. Except to the extent revised or superseded by a subsequent filing
with the SEC (a copy of which has been provided to the Company prior to the date
of this Agreement), none of the Parent SEC Documents, to the knowledge of the
Parent’s management, 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 Parent included in such Parent 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 Parent 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
Parent’s independent accountants). Except as set forth in the Parent SEC
Documents, at the date of the most recent audited financial statements of the
Parent included in the Parent SEC Documents, neither the Parent nor any of its
subsidiaries had, and since such date neither the Parent 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 Parent. As of the Closing Date, the Parent has no
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise).
(f) Absence
of Certain Changes or Events. Except as disclosed in the Parent SEC Documents,
since the date of the most recent financial statements included in the Parent
SEC Documents, the Parent has conducted its business only in the ordinary course
consistent with past practice in light of its current business circumstances,
and there is not and has not been: (i) any material adverse change with respect
to the Parent; (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 Parent; (iii) any
event which, if it had taken place following the execution of this Agreement,
would not have been permitted by Section 4.02 without the prior consent of the
Company; or (iv) any condition, event or occurrence which could reasonably be
expected to prevent, hinder or materially delay the ability of the Parent to
consummate the transactions contemplated by this Agreement.
(g)
Interim Operations of the Merger Sub. The Merger Sub was formed solely for the
purpose of engaging in the transactions contemplated hereby, has (or will have)
engaged in no other business activities and has (or will have) conducted its
operations only as contemplated hereby.
(h)
Litigation; Labor Matters; Compliance with Laws.
(i)
There is no suit, action or proceeding or investigation pending or, to the
knowledge of the Parent, threatened against or affecting the Parent 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 Parent or prevent, hinder or materially delay the ability of
the Parent 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 Parent having, or which, insofar as
reasonably could be foreseen by the Parent, in the future could have, any such
effect.
(ii)
The Parent is not a party to, or bound by, any collective bargaining agreement,
contract or other agreement or understanding with a labor union or labor
organization, nor is it the subject of any proceeding asserting that it has
committed an unfair labor practice or seeking to compel it to bargain with any
labor organization as to wages or conditions of employment nor is there any
strike, work stoppage or other labor dispute involving it pending or, to its
knowledge, threatened, any of which could have a material adverse effect with
respect to the Parent.
(iii) The
conduct of the business of the Parent complies with all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or arbitration awards
applicable thereto.
(i)
Benefit Plans. The Parent is not a party to any Benefit Plan under which the
Parent currently has an obligation to provide benefits to any current or former
employee, officer or director of the Parent.
(j)
Certain Employee Payments. The Parent is not a party to any employment agreement
which could result in the payment to any current, former or future director or
employee of the Parent of any money or other property or rights or accelerate or
provide any other rights or benefits to any such employee or director as a
result of the transactions contemplated by this Agreement, whether or not (i)
such payment, acceleration or provision would constitute a “parachute payment”
(within the meaning of Section 280G of the Code), or (ii) some other subsequent
action or event would be required to cause such payment, acceleration or
provision to be triggered.
(k)
Tax Returns and Tax Payments. The Parent has timely filed all Tax Returns
required to be filed by it, has paid all Taxes shown thereon to be due and has
provided adequate reserves in its financial statements for any Taxes that have
not been paid, whether or not shown as being due on any returns. No material
claim for unpaid Taxes has been made or become a lien against the property of
the Parent or is being asserted against the Parent, no audit of any Tax Return
of the Parent is being conducted by a tax authority, and no extension of the
statute of limitations on the assessment of any Taxes has been granted by the
Parent and is currently in effect.
(l)
Environmental Matters. The Parent is in material
compliance with all applicable Environmental Laws.
(m)
Material Contract Defaults. The Parent is not, or has not, received any notice
or has 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
Parent is a party (i) with expected receipts or expenditures in excess of
$50,000, (ii) requiring the Parent to indemnify any person, (iii) granting
exclusive rights to any party, (iv) evidencing indebtedness for borrowed or
loaned money in excess of $50,000 or more, including guarantees of such
indebtedness, or (v) which, if breached by the Parent 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 Parent 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.
(n) Properties.
The Parent has good, clear and marketable title to all the tangible properties
and tangible assets reflected in the latest balance sheet as being owned by the
Parent or acquired after the date thereof which are, individually or in the
aggregate, material to the Parent’s business (except properties sold or
otherwise disposed of since the date thereof in the ordinary course of
business), free and clear of all material liens.
(o) Trademarks
and Related Contracts. The Parent does not hold any Trademarks, Trade Secrets,
or Intellectual Property, and is not party to any license agreements regarding
such other than as described in the Parent SEC Documents.
(p) Board
Recommendation. The Board of Directors of the Parent has unanimously determined
that the terms of the Merger are fair to and in the best interests of the
shareholders of the Parent.
(q) Liabilities. The
Parent and the Merger Sub guarantee that the Company and the Sellers are free
from any and all claims, liabilities or obligations of any nature (absolute,
accrued, contingent or otherwise) from the operations of the Parent and any of
its subsidiaries on and prior to the date hereof. The foregoing
representation and warranty of the Parent and the Merger Sub under this Section
3.03(q) shall survive and remain in full force and effect for the two years
following the Effective Time of the Merger.
ARTICLE
IV:
COVENANTS
RELATING TO
CONDUCT
OF BUSINESS PRIOR TO MERGER
4.01
Conduct of the Company and
the Parent. From the date of this Agreement and until the Effective Time
of the Merger, or until the prior termination of this Agreement, the Company and
the Parent, shall not, unless mutually agreed to in writing and other than as
contemplated in Section 4.02:
(a) engage
in any transaction, except in the normal and ordinary course of business, or
create or suffer to exist any lien or other encumbrance upon any of their
respective assets or which will not be discharged in full prior to the Effective
Time of the Merger;
(b) sell,
assign or otherwise transfer any of their assets, or cancel or compromise any
debts or claims relating to their assets, other than for fair value, in the
ordinary course of business, and consistent with past practice;
(c) fail
to use reasonable efforts to preserve intact their present business
organizations, keep available the services of their employees and preserve its
material relationships with customers, suppliers, licensors, licensees,
distributors and others, to the end that its good will and ongoing business not
be impaired prior to the Effective Time;
(d) except
for matters related to complaints by former employees related to wages, suffer
or permit any material adverse change to occur with respect to the Company and
the Parent or their business or assets;
(e) not
take any action that would cause a material breach of the representations and
warranties contained herein; or
(f) make
any material change with respect to their business in accounting or bookkeeping
methods, principles or practices, except as required by GAAP.
4.02 Assignment of
Parent’s Current Business.
Prior to the Closing Date, Parent shall complete the transfer of all its
current business and assets into Spin-Off Sub and shall affect distribution of
Spin-Off Sub as a stock dividend to the shareholders of Parent.
ARTICLE
V:
ADDITIONAL
AGREEMENTS
5.01
Access to Information;
Confidentiality.
(a) The
Company shall, and shall cause its officers, employees, counsel, financial
advisors and other representatives to, afford to the Parent and its
representatives reasonable access during normal business hours during the period
prior to the Effective Time of the Merger to its and to Company Subs’
properties, books, contracts, commitments, personnel and records and, during
such period, the Company shall, and shall cause its and Company Subs’ officers,
employees and representatives to, furnish promptly to the Parent all information
concerning their respective business, properties, financial condition,
operations and personnel as such other party may from time to time reasonably
request. For the purposes of determining the accuracy of the representations and
warranties of the Parent and the Merger Sub set forth herein and compliance by
the Parent and the Merger Sub of their respective obligations hereunder, during
the period prior to the Effective Time of the Merger, the Parent shall provide
the Company and its representatives with reasonable access during normal
business hours to its and Merger Sub’s properties, books, contracts,
commitments, personnel and records as may be necessary to enable the Company to
confirm the accuracy of the representations and warranties of the Parent and the
Merger Sub set forth herein and compliance by the Parent and the Merger Sub of
their obligations hereunder, and, during such period, the Parent shall, and
shall cause its subsidiaries, officers, employees and representatives to,
furnish promptly to the Company upon its request (i) a copy of each report,
schedule, registration statement and other document filed by it during such
period pursuant to the requirements of federal or state securities laws and (ii)
all other information concerning its business, properties, financial condition,
operations and personnel as such other party may from time to time reasonably
request. Except as required by law, each of the Company, the Merger Sub, and the
Parent will hold, and will cause its respective directors, officers, employees,
accountants, counsel, financial advisors and other representatives and
affiliates to hold, any nonpublic information in confidence.
(b) No
investigation pursuant to this Section 5.01 shall affect any representations or
warranties of the parties herein or the conditions to the obligations of the
parties hereto.
5.02
Best
Efforts. Upon the terms and subject to the conditions set forth in this
Agreement, each of the parties agrees to use its best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by this
Agreement. The Parent, the Merger Sub and the Company will use their best
efforts and cooperate with one another (i) in promptly determining whether any
filings are required to be made or consents, approvals, waivers, permits or
authorizations are required to be obtained (or, which if not obtained, would
result in an event of default, termination or acceleration of any agreement or
any put right under any agreement) under any applicable law or regulation or
from any governmental authorities or third parties, including parties to loan
agreements or other debt instruments and including such consents, approvals,
waivers, permits or authorizations as may be required to transfer the assets and
related liabilities of the Company to the Merger Sub in promptly making any such
filings, in furnishing information required in connection therewith and in
timely seeking to obtain any such consents, approvals, permits or authorizations
and (ii) in facilitating each other’s due diligence investigations. The Parent
and the Company shall mutually cooperate in order to facilitate the achievement
of the benefits reasonably anticipated from the Merger.
5.03
Public Announcements.
The Parent and the Merger Sub, on the one hand, and the Company, on the other
hand, will consult with each other before issuing, and provide each other the
opportunity to review and comment upon, any press release or other public
statements with respect to the transactions contemplated by this Agreement and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by applicable law or court
process. The parties agree that the initial press release or releases to be
issued with respect to the transactions contemplated by this Agreement shall be
mutually agreed upon prior to the issuance thereof.
5.04
Expenses. All costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
expenses.
5.05
Directorships. Upon
the Effective Time of the Merger, all officers of the Parent shall have resigned
and the Parent shall have taken all action to cause Xx. Xxxxxx Xx to be elected
to its Board of Directors as Chairman of the Board and its officers to consist
of the following: Xx. Xxxxxx Xx as CEO, Xx. Xxxxxx Xx as President and Xx. Xxxxx
Xx as CFO.
5.06 No Solicitation.
Except as previously agreed to in writing by the other party, neither the
Company or the Parent shall authorize or permit any of its officers, directors,
agents, representatives, or advisors to (a) solicit, initiate or encourage or
take any action to facilitate the submission of inquiries, proposals or offers
from any person relating to any matter concerning any merger, consolidation,
business combination, recapitalization or similar transaction involving the
Company or the Parent, respectively, other than the transaction contemplated by
this Agreement or any other transaction the consummation of which would or could
reasonably be expected to impede, interfere with, prevent or delay the Merger or
which would or could be expected to dilute the benefits to the Company of the
transactions contemplated hereby. The Company or the Parent will immediately
cease and cause to be terminated any existing activities, discussions and
negotiations with any parties conducted heretofore with respect to any of the
foregoing.
5.07 Filing
of Form 8-K. Within four business days following the Closing Date of
the Merger, the Company shall file and cause Parent to file a Form 8-K with the
SEC containing information about the Merger and Pro Forma financial statements
of the Parent and the Company and audited financial statements of the Company as
required by Regulation S-K. Such Form 8-K shall be in form and substance
acceptable to Parent and its counsel prior to Closing.
ARTICLE
VI:
CONDITIONS
PRECEDENT
6.01
Conditions to Each Party’s
Obligation to Effect the Merger. The respective obligation of each party
to effect the Merger is subject to the satisfaction or waiver on or prior to the
Closing Date of the following conditions:
(a)
Opinions of Counsel. Execution and delivery
of the following: to the Company, an opinion of counsel from the Parent’s legal
counsel that the terms, conditions and structure of this Merger satisfy Nevada
law, and to the Parent, an opinion of counsel from Company’s legal counsel that
the terms, conditions and structure of this Merger satisfies the laws of the
British Virgin Islands and China.
(b)
No Injunctions or Restraints. No
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Merger shall be in
effect.
(c)
No Dissent. Holders of no
more than five percent (5%) of the Company’s shareholders shall have dissented
to the Merger.
(d) Deliverables
of Parent. Parent shall deliver to the Sellers the
following:
(i) the
minute books of the Parent and any of its subsidiaries, including its corporate
seals, unissued stock certificates, stock registers, Certificate of
Incorporation, bylaws and corporate minutes;
(ii) information
on any bank accounts of the Parent and any of its subsidiaries and confirmation
of the cancellation of such bank accounts;
(iii)
a certificate respecting the good standing of the Parent from the Secretary of
State of Nevada, dated not more than five (5) Business Days prior to the Closing
Date; and
(iv) a
certificate respecting the good standing of the Merger Sub from the Secretary of
State of Nevada, dated not more than five (5) Business Days prior to the Closing
Date.
(e) No
Litigation. There shall not be pending or threatened by any Governmental Entity
any suit, action or proceeding (or by any other person any suit, action or
proceeding which has a reasonable likelihood of success), (i) challenging or
seeking to restrain or prohibit the consummation of the Merger or any of the
other transactions contemplated by this Agreement or seeking to obtain from the
Parent, the Company or any of their respective subsidiaries any damages that are
material in relation to the Parent or the Company and their respective
subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership
or operation by the Company, the Parent or any of their respective subsidiaries
of any material portion of the business or assets of the Company, the Parent or
any of their respective subsidiaries, or to dispose of or hold separate any
material portion of the business or assets of the Company, the Parent or any of
their respective subsidiaries, as a result of the Merger or any of the other
transactions contemplated by this Agreement, (iii) seeking to impose limitations
on the ability of the Parent or Merger Sub to acquire or hold, or exercise full
rights of ownership of, any shares of Company Common Stock or Common Stock of
the Surviving Corporation, including, without limitation, the right to vote the
Company Common Stock or Common Stock of the Surviving Corporation on all matters
properly presented to the shareholders of the Company or the Surviving
Corporation, respectively, or (iv) seeking to prohibit the Parent or any of its
subsidiaries from effectively controlling in any material respect the business
or operations of the Company.
(f) Stock
Dividend. The formation of Spin-Off Sub, the transfer of all of Parent’s current
business and assets into Spin-Off Sub and the subsequent distribution of
Spin-Off Sub as a stock dividend to the shareholders of Parent shall have been
completed.
(g) Deliverables
of Company and Sellers. The Company and or the Sellers shall deliver to the
Parent the following:
(i) Stock
certificates representing all the issued and outstanding shares of the Company,
duly endorsed in blank or accompanied by stock powers duly executed in blank, or
other instruments of transfer in form and substance reasonably satisfactory to
the Parent, other than any shares held by Dissenting Shareholders;
(ii) a
certificate respecting the good standing of the Company from the appropriate
authorities in the British Virgin Islands, dated not more than five (5) Business
Days prior to the Closing Date; and
(iii) a
list of recipients of the considerations for the Merger.
The
Parent, with the assistance of the Company, shall have prepared the Current
Report on Form 8-K required as a result on the consummation of the transactions
contemplated hereby.
6.02 Conditions to Obligations of
the Parent and the Merger Sub. The obligations of the Parent and the
Merger Sub to effect the Merger are further subject to the following
conditions:
(a) Representations
and Warranties. The representations and warranties of the Company and Company
Subs set forth in this Agreement shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date. The Parent shall have
received a certificate signed on behalf of the Company and Company Subs by the
president of the Company and the Company Subs to such effect.
(b) Performance
of Obligations of the Company. The Company and Company Subs shall have performed
the obligations required to be performed by them under this Agreement at or
prior to the Closing Date and the Parent shall have received a certificate
signed on behalf of the Company and Company Subs by the president of the Company
and the Company Subs to such effect.
(c) Consents,
etc. The Parent shall have received evidence, in form and substance reasonably
satisfactory to it, that such licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and other
third parties as necessary in connection with the transactions contemplated
hereby have been obtained.
(d) Due
Diligence Investigation. The Parent shall be satisfied with the results of its
due diligence investigation of the Company and Company Subs in its sole and
absolute discretion.
6.03
Conditions to Obligation of
the Company. The obligation of the Company to effect the Merger is
further subject to the following conditions:
(a) Representations
and Warranties. The representations and warranties of the Parent and the Merger
Sub set forth in this Agreement shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date. The Company shall have
received a certificate signed on behalf of the Parent by the president of the
Parent to such effect.
(b) Performance
of Obligations of the Parent and the Merger Sub. The Parent and the Merger Sub
shall have performed the obligations required to be performed by them under this
Agreement at or prior to the Closing and the Company shall have received a
certificate signed on behalf of the Parent by the president of the Parent to
such effect.
(c) Consents,
etc. The Company shall have received evidence, in form and substance reasonably
satisfactory to it, that such licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and other
third parties as necessary in connection with the transactions contemplated
hereby have been obtained.
(d) Filing
of Merger Agreement. The Parent shall have filed or will promptly file after the
Closing Date in the office of the Secretary of State of the State of Nevada such
filings which are required for the Merger to become effective.
(e) Resignations.
The Parent shall deliver to the Company written resignations of all of the
officers of the Parent and evidence of election of those new directors and
officers as further described in Section 5.06 herein.
(f) Rule
14f-1. The Parent shall file with the SEC and mail to its shareholders of record
an information statement prepared in accordance with SEC Rule 14f-1, containing
information about the change of directors of the board, among other
things.
ARTICLE
VII:
TERMINATION,
AMENDMENT AND WAIVER
7.01
Termination. This
Agreement may be terminated and abandoned at any time prior to the Effective
Time of the Merger:
(a) by
mutual written consent of the Parent and the Company;
(b) by
either the Parent or the Company if any Governmental Entity shall have issued an
order, decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Merger and such order, decree, ruling
or other action shall have become final and nonappealable;
(c) by
either the Parent or the Company if the Merger shall not have been consummated
on or before February 28, 2010 (other than as a result of the failure of the
party seeking to terminate this Agreement to perform its obligations under this
Agreement required to be performed at or prior to the Effective Time of the
Merger);
(d) by
the Parent, if a material adverse change shall have occurred relative to the
Company;
(e) by
the Parent, if the Company or any of the Sellers willfully fail to perform in
any material respect any of its material obligations under this Agreement;
or
(f) by
the Company, if the Parent or the Merger Sub willfully fails to perform in any
material respect any of their respective obligations under this
Agreement.
7.02 Effect of
Termination. In the event of termination of this Agreement by either the
Company or the Parent as provided in Section 7.01, this Agreement shall
forthwith become void and have no effect, without any liability or obligation on
the part of the Parent, the Merger Sub or the Company, other than the provisions
of the last sentence of Section 5.01(a) and this Section 7.02. Nothing contained
in this Section shall relieve any party for any breach of the representations,
warranties, covenants or agreements set forth in this Agreement.
7.03 Amendment. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties.
7.04 Extension; Waiver.
Subject to Section 7.01(c), at any time prior to the Effective Time of the
Merger, the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement, or (c) waive compliance with any
of the agreements or conditions contained in this Agreement. Any agreement on
the part of a party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party. The failure of
any party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
7.05 Procedure for Termination,
Amendment, Extension or Waiver. A termination of this Agreement pursuant
to Section 7.01, an amendment of this Agreement pursuant to Section 7.03 or an
extension or waiver of this Agreement pursuant to Section 7.04 shall, in order
to be effective, require in the case of the Parent, the Merger Sub or the
Company, action by its Board of Directors.
7.06 Return of Documents.
In the event of termination of this Agreement for any reason, the Parent and the
Company will return to the other party all of the other party’s documents, work
papers, and other materials (including copies) relating to the transactions
contemplated in this Agreement, whether obtained before or after execution of
this Agreement. The Parent and Company will not use any information so obtained
from the other party for any purpose and will take all reasonable steps to have
such other party’s information kept confidential.
ARTICLE
VIII:
INDEMNIFICATION
AND RELATED MATTERS
8.01 Survival of Representations
and Warranties. The representations and warranties in this Agreement or
in any instrument delivered pursuant to this Agreement shall survive the
Effective Time of the Merger until the Settlement Date.
8.02 Indemnification.
(a) Irrespective
of any due diligence investigation conducted by the Company with regard to the
transactions contemplated hereby, the Parent shall indemnify and hold the
Company and each of its officers and directors (the “Company Representatives”)
harmless from and against any and all liabilities, obligations, damages, losses,
deficiencies, costs, penalties, interest and expenses (collectively, “Losses”)
arising out of, based upon, attributable to or resulting from any and all Losses
incurred or suffered by the Company or any of the Company Representatives
resulting from or arising out of any breach of a representation, warranty or
covenant made by the Parent as set forth herein.
(b) The
Company shall indemnify and hold the Parent and each of its officers and
directors (the “Parent Representatives”) harmless from and against any and all
Losses arising out of, based upon, attributable to or resulting from any and all
Losses incurred or suffered by the Parent or any of the Parent Representatives
resulting from or arising out of any breach of a representation, warranty or
covenant made by Company as set forth herein.
8.03 Notice of
Indemnification. In the event any proceeding shall be threatened or
instituted or any claim or demand shall be asserted in respect of which payment
may be sought by the Parent or any Parent Representative or by the Company or
any Company Representative, against the other, as the case may be (each an
“Indemnitee”), under the provisions of this Article VIII (an “Indemnity Claim”),
the Indemnitee shall promptly cause written notice of the assertion of any such
Claim of which it has knowledge which is covered by this indemnity to be
forwarded to the Parent, or the Company, as the case may be. Any notice of an
Indemnity Claim by reason of any of the representations, warranties or covenants
contained in this Agreement shall state specifically the representation,
warranty or covenant with respect to which the Indemnity Claim is made, the
facts giving rise to an alleged basis for the Claim, and the amount of the
liability asserted against the Indemnitor by reason of the Indemnity Claim.
Within ten (10) business days of the receipt of such written notice, the Parent
or the Company, as the case may be, shall notify the Indemnitee in writing of
its intent to contest the indemnification obligation (a “Contest”) or to accept
liability hereunder. If the Parent or the Company, as the case may be, does not
respond within ten (10) days of the request of such written notice to such
written notice, the Parent or the Company, as the case may be, will be deemed to
accept liability as set forth in the notice. In the event of a Contest, within
ten (10) days of the receipt of the written notice thereof, the parties will
select arbitrators and submit the dispute to binding arbitration before the
American Arbitration Association at a venue to be located in New York City. The
arbitrators shall be selected by the mutual agreement of the parties. If the
parties can not agree on the arbitrator, each may select one arbitrator and the
two designated arbitrators shall select the third arbitrator. If the third
arbitrator can not be agreed upon, the American Arbitration Association in New
York shall select the third arbitrator. A decision by the individual arbitrator
or a majority decision by the three arbitrators shall be final and binding upon
the parties. Such arbitration shall follow the rules of the American Arbitration
Association and must be resolved by the arbitrators within thirty (30) days
after the matter is submitted to arbitration.
ARTICLE
IX:
Intentionally
left blank and reserved.
ARTICLE
X:
GENERAL
PROVISIONS
10.01 Notices. All notices,
requests, claims, demands and other communications under this Agreement shall be
in writing. Any notice, request, demand, claim or other communication hereunder
shall be deemed duly given (a) if by personal delivery, when so delivered, (b)
if mailed, five (5) business days after having been sent by registered or
certified mail, return receipt requested, postage prepaid and addressed to the
intended recipient as set forth below, or (c) if sent through an overnight
delivery service in circumstances to which such service guarantees next day
delivery, the day following being so sent(or at such other address for a party
as shall be specified by like notice):
(a)
if to the Parent or Merger Sub, to:
X.X.X.
Taste on Demand, Inc.
00
Xx'Xxxxxx Xxxxxx
Xxxx,
Xxxxxx
Attention:
Xx. Xxxxx
Xxxxxx, CEO
x000-00-0000000
phone
With a
copy to:
Xxxxx
Xxxxx & Associates, PLLC
0 Xxxxx
Xxxxxxx Xxxxxx
0xx
xxxxx
Xxxxxxxxx
Xxxxxx, XX 00000
Attention:
Xxxxx Xxxxx, Esq.
(b)
if to the Company, to:
XXXXXXXXX
LAW OFFICES 锦天城律师事务所
14/F,
Citigroup
Tower 上海市花园石桥路33号
33 Hua
Yuan Shi Qiao Road xxxxxx00x
Xxxxxxxx
000000，China
邮编：200120
Tel:00-00-00000000 Fax:00-00-00000000
Attention: Xxxxx
Xxx , Esq.
10.02 Definitions. For
purposes of this Agreement:
(a) an
“affiliate” of any person means another person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such first person;
(b) “material
adverse change” or “material adverse effect” means, when used in connection with
the Company or the Parent, 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 and its subsidiaries taken as a whole;
(c) “person”
means an individual, corporation, partnership, joint venture, association,
trust, limited liability company, unincorporated organization or other entity;
and
(d) 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 of which) is owned directly or indirectly by
such first person.
10.03
Interpretation. When
a reference is made in this Agreement to a Section, Exhibit or Schedule, such
reference shall be to a Section of, or an Exhibit or Schedule to, this Agreement
unless otherwise indicated. 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”.
10.04
Entire Agreement; No
Third-Party Beneficiaries. This Agreement and the other agreements
referred to herein constitute 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. This Agreement is not intended
to confer upon any person other than the parties any rights or
remedies.
10.05 Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Nevada, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
10.06 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. 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.
10.07 Enforcement. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of Nevada, this
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto (a) agrees that it will not
attempt to deny or defeat such personal jurisdiction or venue by motion or other
request for leave from any such court, and (b) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated by
this Agreement in any state court other than such court.
10.08 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.
10.09 Counterparts. This
Agreement may be executed in one or more identical counterparts and by facsimile
, 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.
10.10 Interpretation. The
parties agree that this Agreement shall be deemed to have been jointly and
equally drafted by them, and that the provisions of this Agreement therefore
shall not be construed against a party or parties on the ground that such party
or parties drafted or was more responsible for the drafting of any such
provision(s). The parties further agree that they have each carefully read the
terms and conditions of this Agreement, that they know and understand the
contents and effect of this Agreement and that the legal effect of this
Agreement has been fully explained to its satisfaction by counsel of its own
choosing.
[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.
PARENT:
|
X.X.X.
Taste on Demand Inc.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx
|
||
|
Name:
Xx. Xxxxx Xxxxxx
|
|||
|
Title:
President and Chief Executive Officer
|
|||
MERGER
SUB:
|
China
Environmental
Protection
Inc.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx
|
||
|
Name:
Xx. Xxxxx Xxxxxx
|
|||
|
Title:
Director
|
|||
COMPANY:
|
Dragon
Path International Limited
|
|||
|
By:
|
/s/ Boping Li
|
||
|
Name:
Boping Li
|
|||
|
Title:
Director
|
|||
|
/s/ Xxxxxx Xxxx
|
|||
|
Name:
Xxxxxx Xxxx
|
|||
|
Title:
Director
|
|||
SELLERS:
|
[_____________]
|
|||
|
By:
|
/s/
Xxxx Xxxxxx
|
||
|
Name: Xxxx
Xxxxxx
|
|||
|
Position:
Shareholder
|
|||
