AMENDED AND RESTATED SHARE EXCHANGE AGREEMENT
AMENDED
AND RESTATED SHARE EXCHANGE AGREEMENT
THIS
AMENDED AND RESTATED SHARE EXCHANGE AGREEMENT, dated as of the 6th day of
December, 2010 (the “Agreement”), by and
among SRKP 20, Inc., a Delaware corporation (the “Company”); Immense
Fortune Holdings Limited, a British Virgin Islands corporation (“Immense Fortune”),
Legend Media Holdings HK Limited, a Hong Kong corporation and a wholly-owned
subsidiary of Immense Fortune (“Legend”), and Feigeda
Electronic (SZ) Co., Ltd., a company organized under the laws of the People’s
Republic of China and a wholly-owned subsidiary of Legend (“Feigeda” and together
with Immense Fortune and Legend, the “Immense Fortune
Entities”), and Finest Day Limited, a British Virgin Islands corporation
and sole shareholder of Immense Fortune (the “Shareholder”). Each
of the Immense Fortune Parties and the Shareholder is sometimes individually
referred to herein as an “Immense Fortune
Party,” and collectively as the “Immense Fortune
Parties.” Each of the parties to this Agreement is individually referred
to herein as a “Party” and
collectively as the “Parties.”
WITNESSETH:
WHEREAS,
the Shareholder owns all of the issued and outstanding shares of the capital of
Immense Fortune, which is the 100% parent of Legend, which is the 100% parent of
Feigeda;
WHEREAS,
the Parties and Fangguan Electronic (CC) Co., Ltd., a company organized under
the laws of the People’s Republic of China, previously entered into a Share
Exchange Agreement effective as of April 21, 2010 (the “Original Agreement”) pursuant to
which the Shareholder agreed to sell to the Company and the Company agreed to
purchase from the Shareholder, all of the issued and outstanding capital stock
of Immense Fortune (the “Immense Fortune
Shares”);
WHEREAS, upon further
negotiations, the parties to the Original
Agreement desire to amend
and restate the terms and conditions of the Original Agreement as set forth in
this Agreement;
WHEREAS,
Section 10.5 of the Original Agreement permits the parties thereto to amend the
Original Agreement by a written instrument executed by such
parties;
WHEREAS,
the Company desires to acquire from the Shareholder and the Shareholder desires
to sell to the Company, the Immense Fortune Shares in exchange for the issuance
by the Company of an aggregate of 15,156,468 shares (the “Company Shares”) of
the Company’s common stock, $0.0001 par value (“Common Stock”) to the
Shareholder and/or its designees on the terms and conditions set forth herein
(the “Exchange”);
WHEREAS,
after giving effect to the Exchange and Share and Warrant Cancellation, there
will be approximately 19,420,987 shares of Company Common Stock and 2,293,519
warrants to purchase shares of Company Common Stock issued and outstanding;
and
WHEREAS,
the Parties intend, by executing this Agreement, to implement a tax-deferred
exchange of property governed by Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Internal
Revenue Code of 1986, as amended (the “Code”).
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NOW,
THEREFORE, in consideration, of the promises and of the mutual representations,
warranties and agreements set forth herein, the Parties hereto agree as
follows:
ARTICLE
I
THE
EXCHANGE
1.1 The
Exchange. Subject to the terms and conditions of this Agreement, on
the Closing Date (as hereinafter defined):
(a) the
Company shall issue and deliver to the Shareholder and/or its designees the
number of authorized but unissued shares of Company Common Stock set forth
opposite their and/or their designees’ names set forth on Schedule I hereto or
pursuant to separate instructions to be delivered prior to Closing,
and
(b) the
Shareholder agrees to deliver to the Company duly endorsed certificates
representing the Immense Fortune Shares.
1.2 Time and Place of
Closing. The closing of the Exchange (the “Closing”) shall take
place at the offices of K&L Gates LLP at 00000 Xxxxx Xxxxxx Xxxx, 0xx Xxxxx,
Xxx Xxxxxxx, XX 00000, or at such place and time as mutually agreed upon by the
Parties hereto. The date upon which the Closing occurs is defined as the
“Closing Date.”
1.3 Effective
Time. The Exchange shall become effective (the “Effective Time”) at
such time as all of the conditions to set forth in Article VII hereof have been
satisfied or waived by the Parties hereto.
1.4 Tax
Consequences. It is intended by the Parties hereto that for United
States income tax purposes, the contribution and transfer of the Immense Fortune
Shares by the Shareholder to the Company in exchange for Company Shares
constitutes a “tax-free” contribution and/or reorganization pursuant to the
provisions of Sections 351 and/or 368(a) of the Code.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Immense Fortune Parties that now and/or
as of the Closing:
2.1 Due Organization and
Qualification; Due Authorization.
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its respective business and properties and
to carry on its business in the places and in the manner as presently conducted
or proposed to be conducted. The Company is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it requires such qualification except
for any such failure, which when taken together with all other failures, is not
likely to have a material adverse effect on the business of the
Company.
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(b) The
Company does not own, directly or indirectly, any capital stock, equity or
interest in any corporation, firm, partnership, joint venture or other
entity.
(c) The
Company has all requisite corporate power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby and
thereby. The Company has taken all corporate action necessary for the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, and this Agreement constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as may be affected by bankruptcy, insolvency, moratoria or
other similar laws affecting the enforcement of creditors’ rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefore may
be brought, equitable remedies is subject to the discretion of the court before
which any proceeding therefore may be brought.
2.2 No Conflicts or
Defaults. The execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated hereby do not and
shall not (a) contravene the Certificate of Incorporation or By-laws of the
Company or (b) with or without the giving of notice or the passage of time (i)
violate, conflict with, or result in a breach of, or a default or loss of rights
under, any material covenant, agreement, mortgage, indenture, lease, instrument,
permit or license to which the Company is a party or by which the Company is
bound, or any judgment, order or decree, or any law, rule or regulation to which
the Company is subject, (ii) result in the creation of, or give any party the
right to create, any lien, charge, encumbrance or any other right or adverse
interest (“Liens”) upon any of
the assets of the Company, (iii) terminate or give any party the right to
terminate, amend, abandon or refuse to perform, any material agreement,
arrangement or commitment to which the Company is a party or by which the
Company’s assets are bound, or (iv) accelerate or modify, or give any party the
right to accelerate or modify, the time within which, or the terms under which,
the Company is to perform any duties or obligations or receive any rights or
benefits under any material agreement, arrangement or commitment to which it is
a party.
2.3 Capitalization. The
authorized capital stock of the Company immediately prior to giving effect to
the transactions contemplated hereby consists of 110,000,000 shares of which
100,000,000 have been designated as Company Common Stock and 10,000,000 shares
have been designated as preferred stock, $0.0001 par value (“Preferred
Stock”). As of the date hereof, there are 8,532,193 shares of
Company Common Stock issued and outstanding, no shares of Preferred Stock
outstanding, and 9,206,755 warrants outstanding with an exercise price of
$0.0001 (the “Warrants”). All of
the outstanding shares of Company Common Stock are, and the Company Shares when
issued in accordance with the terms hereof, will be, duly authorized, validly
issued, fully paid and nonassessable, and have not been or, with respect to the
Company Shares will not be issued in violation of any preemptive right of
stockholders. Other than as set forth on Item 2.3 to the Disclosure
Schedule to this Agreement, there is no outstanding voting trust agreement or
other contract, agreement, arrangement, option, warrant, call, commitment or
other right of any character obligating or entitling the Company to issue, sell,
redeem or repurchase any of its securities, and there is no outstanding security
of any kind convertible into or exchangeable for Company Common Stock. The
Company has not granted registration rights to any person.
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2.4 Financial
Statements. The Company has provided the Immense Fortune Parties
copies of the (i) balance sheet of the Company as of December 31, 2009, and the
related statements of operations, changes in stockholders’ equity (deficit) and
cash flows for the year ended December 31, 2009 and the period from October 11,
2007 (inception) to December 31, 2009, including the notes thereto, as audited
by AJ. Xxxxxxx, PC, independent registered public accounting firm and (ii)
balance sheet of the Company as of September 30, 2010 and the related statements
of operations, and cash flows for the nine (9)-month period then ended (the
“Financial
Statements”). The Financial Statements, together with the notes
thereto, have been prepared in accordance with U.S. generally accepted
accounting principles applied on a basis consistent throughout all periods
presented. The Financial Statements present fairly the financial position
of the Company as of the dates and for the periods indicated. The books of
account and other financial records of the Company have been maintained in
accordance with good business practices.
2.5 No Assets or
Liabilities. As of the Closing, the Company shall have no more than
$50,000 in liabilities. Except for the foregoing or as set forth on the
Financial Statements, the Company does not have any (a) assets of any kind or
(b) liabilities or obligations, whether secured or unsecured, accrued,
determined, absolute or contingent, asserted or unasserted or
otherwise.
2.6 Taxes. The
Company has filed all United States federal, state, county and local returns and
reports which were required to be filed on or prior to the date hereof in
respect of all income, withholding, franchise, payroll, excise, property, sales,
use, value-added or other taxes or levies, imposts, duties, license and
registration fees, charges, assessments or withholdings of any nature whatsoever
(together, “Taxes”), and has paid
all Taxes (and any related penalties, fines and interest) which have become due
pursuant to such returns or reports or pursuant to any assessment which has
become payable, or, to the extent its liability for any Taxes (and any related
penalties, fines and interest) has not been fully discharged, the same have been
properly reflected as a liability on the books and records of the Company and
adequate reserves therefore have been established.
2.7 Indebtedness; Contracts; No
Defaults. Other than as set forth in Item 2.7 of the Disclosure
Schedule or as described in the Financial Statements, the Company has no
material instruments, agreements, indentures, mortgages, guarantees, notes,
commitments, accommodations, letters of credit or other arrangements or
understandings, whether written or oral, to which the Company is a
party.
2.8 Real
Property. The Company does not own or lease any real
property.
2.9 Compliance with
Law. The Company is in compliance with all applicable federal,
state, local and foreign laws and regulations relating to the protection of the
environment and human health. There are no claims, notices, actions, suits,
hearings, investigations, inquiries or proceedings pending or, to the knowledge
of the Company, threatened against the Company that are based on or related to
any environmental matters or the failure to have any required environmental
permits, and there are no past or present conditions that the Company has reason
to believe are likely to give rise to any material liability or other
obligations of the Company under any environmental laws.
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2.10 Permits and
Licenses. The Company has all certificates of occupancy, rights,
permits, certificates, licenses, franchises, approvals and other authorizations
as are reasonably necessary to conduct its respective business and to own,
lease, use, operate and occupy its assets, at the places and in the manner now
conducted and operated, except those the absence of which would not materially
adversely affect its respective business.
2.11 Litigation. There
is no claim, dispute, action, suit, proceeding or investigation pending or, to
the knowledge of the Company, threatened, against or affecting the business of
the Company, or challenging the validity or propriety of the transactions
contemplated by this Agreement, at law or in equity or admiralty or before any
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality, nor to the knowledge of the Company, has any such
claim, dispute, action, suit, proceeding or investigation been pending or
threatened, during the twelve month period preceding the date hereof. There
is no outstanding judgment, order, writ, ruling, injunction, stipulation or
decree of any court, arbitrator or federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, against or
materially affecting the business of the Company. The Company has not
received any written or verbal inquiry from any federal, state, local, foreign
or other governmental authority, board, agency, commission or instrumentality
concerning the possible violation of any law, rule or regulation or any matter
disclosed in respect of its business.
2.12 Insurance. The
Company does not currently maintain any form of insurance.
2.13 Patents; Trademarks and
Intellectual Property Rights. The
Company does not own or possess any patents, trademarks, service marks, trade
names, copyrights, trade secrets, licenses, information, Internet web site(s) or
proprietary rights of any nature.
2.14 Securities Law
Compliance. The Company has complied with all of the applicable
requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and
the Securities Act of 1933, as amended (the “Securities Act”), and
has complied with all applicable blue sky laws.
2.15 Conflicts of
Interest. The Company acknowledges that it is aware and understands
the facts and circumstances of the Conflicts of Interest, as defined in Section
3.8, that may, individually and in the aggregate, create a Conflict of
Interest. The Company hereby waives each and all of the Conflicts of
Interest, in addition to any other conflicts of interest that may arise may
exist or arise by virtue of the Conflicts of Interest and acknowledges that it
has carefully read this Agreement, that it is consistent with the terms
previously negotiated by the parties, and understands that it is free at any
time to obtain independent counsel for further guidance.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE IMMENSE FORTUNE ENTITIES
Each of
the Immense Fortune Entities, jointly and severally, represents and warrants to
the Company that now and/or as of the Closing:
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3.1 Due Organization and
Qualification; Due Authorization.
(a) Each
of the Immense Fortune Entities is a corporation or company duly incorporated or
formed, validly existing and in good standing under the laws of the jurisdiction
of its incorporation or formation, as applicable, with full corporate or company
power, as applicable, and authority to own, lease and operate its business and
properties and to carry on its business in the places and in the manner as
presently conducted or proposed to be conducted. Each of the Immense Fortune
Entities is in good standing as a foreign corporation or company, as applicable,
in each jurisdiction in which the properties owned, leased or operated, or the
business conducted, by it requires such qualification except for any such
failure, which when taken together with all other failures, is not likely to
have a material adverse effect on the business of each of the Immense Fortune
Entities.
(b) Immense
Fortune does not have any subsidiaries other than those set forth in Item 3.1(b)
of the Disclosure Schedule (the “Subsidiaries”) and
Immense Fortune does not own, directly or indirectly, any capital stock, equity
or interest in any corporation, firm, partnership, joint venture or other
entity. Other than as set forth in Item 3.1(b), each Subsidiary is wholly owned
by Immense Fortune, free and clear of all liens, and there is no contract,
agreement, arrangement, option, warrant, call, commitment or other right of any
character obligating or entitling Immense Fortune to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of any
kind convertible into or exchangeable for securities of Immense Fortune or any
of the Subsidiaries.
(c) Each
of the Immense Fortune Entities has all requisite power and authority to execute
and deliver this Agreement, and to consummate the transactions contemplated
hereby and thereby. Each of the Immense Fortune Entities has taken all corporate
action necessary for the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and this Agreement
constitutes the valid and binding obligation of each of the Immense Fortune
Entities, enforceable against each of the Immense Fortune Entities in accordance
with its terms, except as may be affected by bankruptcy, insolvency, moratoria
or other similar laws affecting the enforcement of creditors’ rights generally
and subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefore may
be brought.
3.2 No Conflicts or
Defaults. The execution and delivery of this Agreement by each of
the Immense Fortune Entities and the consummation of the transactions
contemplated hereby do not and shall not (a) contravene the governing documents
of any of the Immense Fortune Entities or its Subsidiaries, or (b) with or
without the giving of notice or the passage of time, (i) violate, conflict with,
or result in a breach of, or a default or loss of rights under, any material
covenant, agreement, mortgage, indenture, lease, instrument, permit or license
to which any of the Immense Fortune Entities or by which any of the Immense
Fortune Entities or any of their respective assets are bound, or any
judgment, order or decree, or any law, rule or regulation to which their assets
are subject, (ii) result in the creation of, or give any party the right to
create, any lien upon any of the assets of any of the Immense Fortune Entities,
(iii) terminate or give any party the right to terminate, amend, abandon or
refuse to perform any material agreement, arrangement or commitment to which any
of the Immense Fortune Entities is a party or by which any of the Immense
Fortune Entities or any of their respective assets are bound, or (iv) accelerate
or modify, or give any party the right to accelerate or modify, the time within
which, or the terms under which any of the Immense Fortune Entities is to
perform any duties or obligations or receive any rights or benefits under any
material agreement, arrangement or commitment to which it is a
party.
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3.3 Capitalization. The
authorized capital stock of Immense Fortune immediately prior to giving effect
to the transactions contemplated hereby consists of 50,000 ordinary shares, U.S.
$1.00 par value per share, of which, as of the date hereof, there was one (1)
share issued and outstanding. Except as set forth herein, all of the
outstanding shares of Immense Fortune are duly authorized, validly issued, fully
paid and nonassessable, and have not been or, with respect to Immense Fortune
Shares, will not be transferred in violation of any rights of third
parties. The Immense Fortune Shares are not subject to any preemptive or
subscription right, any voting trust agreement or other contract, agreement,
arrangement, option, warrant, call, commitment or other right of any character
obligating or entitling Immense Fortune to issue, sell, redeem or repurchase any
of its securities that will survive Closing and there is no outstanding security
of any kind convertible into or exchangeable for common shares. All of the
Immense Fortune Shares are owned of record and beneficially by the Shareholder
and free and clear of any liens, claims, encumbrances, or restrictions of any
kind.
3.4 Taxes. Each of
the Immense Fortune Entities has filed all returns and reports which were
required to be filed on or prior to the date hereof, and has paid all Taxes (and
any related penalties, fines and interest) which have become due pursuant to
such returns or reports or pursuant to any assessment which has become payable,
or, to the extent its liability for any Taxes (and any related penalties, fines
and interest) has not been fully discharged, the same have been properly
reflected as a liability on the books and records of the Immense Fortune
Entities and adequate reserves therefore have been established. All such
returns and reports filed on or prior to the date hereof have been properly
prepared and are true, correct (and to the extent such returns reflect judgments
made by any of the Immense Fortune Entities such judgments were reasonable under
the circumstances) and complete in all material respects. No extension for
the filing of any such return or report is currently in effect. No tax
return or tax return liability of any of the Immense Fortune Entities has been
audited or, presently under audit. All taxes and any penalties, fines and
interest which have been asserted to be payable as a result of any audits have
been paid. None of the Immense Fortune Entities has given or been requested
to give waivers of any statute of limitations relating to the payment of any
Taxes (or any related penalties, fines and interest). There are no claims
pending for past due Taxes. All payments for withholding taxes,
unemployment insurance and other amounts required to be paid for periods prior
to the date hereof to any governmental authority in respect of employment
obligations of each of the Immense Fortune Entities have been paid or shall be
paid prior to the Closing and have been duly provided for on the books and
records of each of the Immense Fortune Entities and in the Immense Fortune
Financial Statements.
3.5 Indebtedness; Contracts; No
Defaults. Other than as set forth in Item 3.5 of the Disclosure
Schedule, none of the Immense Fortune Entities has any material instruments,
agreements, indentures, mortgages, guarantees, notes, commitments,
accommodations, letters of credit or other arrangements or understandings,
whether written or oral, to which any of the Immense Fortune Entities is a
party.
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3.6 Compliance with
Law. Except as specified in Item 3.6 of the Disclosure Schedule,
each of the Immense Fortune Entities is conducting its respective businesses in
material compliance with all applicable law, ordinance, rule, regulation, court
or administrative order, decree or process, or any requirement of insurance
carriers material to its business. Except as specified in Item 3.6 of the
Disclosure Schedule, none of the Immense Fortune Entities has received any
notice of violation or claimed violation of any such law, ordinance, rule,
regulation, order, decree, process or requirement.
3.7 Litigation.
(a) There
is no claim, dispute, action, suit, proceeding or investigation pending or
threatened, against or affecting any of the Immense Fortune Entities or
challenging the validity or propriety of the transactions contemplated by this
Agreement, at law or in equity or admiralty or before any federal, state, local,
foreign or other governmental authority, board, agency, commission or
instrumentality, has any such claim, dispute, action, suit, proceeding or
investigation been pending or threatened, during the 12-month period preceding
the date hereof, except as specified in Item 3.7 of the Disclosure
Schedule;
(b) there
is no outstanding judgment, order, writ, ruling, injunction, stipulation or
decree of any court, arbitrator or federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, against or
materially affecting any of the Immense Fortune Entities; and
(c) none
of the Immense Fortune Entities has received any written or verbal inquiry from
any federal, state, local, foreign or other governmental authority, board,
agency, commission or instrumentality concerning the possible violation of any
law, rule or regulation or any matter disclosed in respect of its
business.
3.8 Conflict of
Interest. Each of the Immense Fortune Entities acknowledges that it
is aware and understands the following facts and circumstances that may,
individually or in the aggregate, create a conflict of interest:
(i)
WestPark Capital, Inc., a FINRA member (“WestPark”), is an
advisor to the Immense Fortune Parties in connection with the Exchange providing
such services to the Immense Fortune Parties as coordinating the Exchange
process, interacting with principals of the Company corporation and negotiating
this Agreement, conducting a financial analysis of Immense Fortune, and
conducting due diligence on the Immense Fortune Parties;
(ii)
Xxxxxxx Xxxxxxxxx, who is the founder, Chief Executive, and President and
indirectly holds a 100% interest in WestPark, is also the President, a Director
and a controlling stockholder of the Company beneficially holding approximately
34.4% of the Company’s Common Stock and Warrants (prior to the Exchange
including shares and warrants held by the Xxxxxx Xxxxxxxxx Trust and the Xxxxxx
Xxxxxxxxx Trust, and excluding shares and warrants held by WestPark Financial
Services LLC as described below);
(iii)
Xxxxxxx X. Xxxxxxxxxxxx, who is the President and Treasurer of WestPark, is also
the Secretary, Chief Financial Officer, and a Director and a controlling
stockholder of the Company beneficially holding approximately 15.4% of the
Company’s Common Stock and Warrants (prior to the Exchange);
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(iv)
Xxxxx XxXxxxxx, who is the Executive Managing Director of Corporate Finance of
WestPark, is a stockholder of the Company beneficially holding approximately
5.7% of the Company’s Common Stock and Warrants (prior to the
Exchange);
(v) Xxxxx
Xxxxx, who is an employee of WestPark, is a stockholder of the Company
beneficially holding approximately 3.3% of the Company’s outstanding Common
Stock and Warrants (prior to the Exchange);
(vi)
Xxxxxx Xxxxxxx, who is a partner of K&L Gates LLP, legal counsel for Immense
Fortune, was, prior to the date of this Agreement, a stockholder of the Company
beneficially holding approximately 5.7% of the Company’s outstanding Common
Stock and Warrants (prior to the Exchange). The securities previously held by
Xx. Xxxxxxx were transferred to an immediate family member and Xx. Xxxxxxx
currently disclaims beneficial ownership of such securities; and
(viii)
WestPark Financial Services LLC, which is the parent of WestPark and of which
Xxxxxxx Xxxxxxxxx serves as CEO and Chairman, is a controlling stockholder of
the Company beneficially holding approximately 49.1% of the Company’s Common
Stock and Warrants (prior to the Exchange) ((i) through (viii) in this Section
are herein referred to as the “Conflicts of
Interest”).
Each of
the Immense Fortune Entities hereby waives each and all of the Conflicts of
Interest, in addition to any other conflicts of interest that may arise, may
exist or arise by virtue of the Conflicts of Interest and acknowledges that it
has carefully read this Agreement, that it is consistent with the terms
previously negotiated by the parties, and understands that it is free at any
time to obtain independent counsel for further guidance.
ARTICLE
IV
REPRESENTATION
AND WARRANTIES OF THE SHAREHOLDER
The
Shareholder hereby represents and warrants to the Company that now and/or as of
the Closing:
4.1 Title to
Shares. The Shareholder is the legal and beneficial owner of the
Immense Fortune Shares to be transferred to the Company by such Shareholder as
set forth opposite such Shareholder’s name in Schedule II hereto, and upon
consummation of the exchange contemplated herein, the Company will acquire from
the Shareholder good and marketable title to the Immense Fortune Shares, free
and clear of all liens excepting only such restrictions hereunder upon future
transfers by the Company, if any, as may be imposed by applicable law. The
information set forth on Schedule II with respect to
the Shareholder is accurate and complete.
4.2 Due
Authorization. The Shareholder has all requisite power and authority
to execute and deliver this Agreement, and to consummate the transactions
contemplated hereby and thereby. This Agreement constitutes the valid and
binding obligation of the Shareholder, enforceable against such Shareholder in
accordance with its terms, except as may be affected by bankruptcy, insolvency,
moratoria or other similar laws affecting the enforcement of creditors’ rights
generally and subject to the qualification that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
therefore may be brought.
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4.3 Purchase for
Investment.
(a) The
Shareholder is acquiring the Company Shares for investment for such
Shareholder’s own account and not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and the Shareholder has no
present intention of selling, granting any participation in, or otherwise
distributing the same. The Shareholder further represents that, it does not have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to such person or to any third person, with
respect to any of the Company Shares.
(b) The
Shareholder understands that the Company Shares are not registered under the
Securities Act on the ground that the sale and the issuance of securities
hereunder is exempt from registration under the Securities Act pursuant to
Section 4(2) thereof, and that the Company’s reliance on such exemption is
predicated on the Shareholder’s representations set forth herein.
4.4 Investment
Experience. The Shareholder acknowledges that it can bear the
economic risk of its investment, and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the investment in the Company Shares.
4.5 Information. The
Shareholder has carefully reviewed such information as such it deemed necessary
to evaluate an investment in the Company Shares. To the full satisfaction
of the Shareholder, it has been furnished all materials that it has requested
relating to the Company and the issuance of the Company Shares hereunder, and
the Shareholder has been afforded the opportunity to ask questions of
representatives of the Company to obtain any information necessary to verify the
accuracy of any representations or information made or given to
it. Notwithstanding the foregoing, nothing herein shall derogate from or
otherwise modify the representations and warranties of the Company set forth in
this Agreement, on which the Shareholder has relied in making an exchange of the
Immense Fortune Shares for the Company Shares.
4.6 Restricted
Securities. The Shareholder understands that the Company Shares may
not be sold, transferred, or otherwise disposed of without registration under
the Securities Act or an exemption there from, and that in the absence of an
effective registration statement covering the Company Shares or any available
exemption from registration under the Securities Act, the Company Shares must be
held indefinitely. The Shareholder is aware that the Company Shares may not
be sold pursuant to Rule 144 promulgated under the Securities Act unless all of
the conditions of that Rule are met. Among the conditions for use of Rule
144 may be the availability of current information to the public about the
Company.
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4.7 Exempt
Issuance. The Shareholder acknowledges that it must assure the
Company that the offer and sale of the Company Shares to such Shareholder
qualifies for an exemption from the registration requirements imposed by the
Securities Act and from applicable securities laws of any state of the United
States. The Shareholder agrees that it meets the criteria established in
one or both of subsections (a) or (b), below.
(a) Accredited Investor, Section
4(2) of the Securities Act and/or Rule 506 of Regulation D. The
Shareholder qualifies as an “accredited investor”, as that term is defined in
Rule 501 of Regulation D, promulgated under the Securities Act.
(b) Offshore Investor, Rule 903
of Regulation S. The Shareholder is not a U.S. Person, as defined in Rule
901 of Regulation S, promulgated under the Securities Act, and the Shareholder
represents and warrants to the Company that:
(i) The
Shareholder is not acquiring the Company Shares as a result of, and such
Shareholder covenants that it will not engage in any “directed selling efforts”
(as defined in Regulation S under the Securities Act) in the United States in
respect of the Company Shares which would include any activities undertaken for
the purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for the resale of any of the
Company Shares;
(ii) The
Shareholder is not acquiring the Company Shares for the account or benefit of,
directly or indirectly, any U.S. Person;
(iii) The
Shareholder is a company organized under the laws of the British Virgin
Islands;
(iv) the
offer and the sale of the Company Shares to such Shareholder as contemplated in
this Agreement complies with or is exempt from the applicable securities
legislation of the British Virgin Islands and the People’s Republic of
China;
(v) the
Shareholder is outside the United States when receiving and executing this
Agreement and that the Shareholder will be outside the United States when
acquiring the Company Shares,
(vi) and
the Shareholder covenants with the Company that:
|
|
(1)
|
offers
and sales of any of the Company Shares prior to the expiration of a period
of six months after the date of original issuance of the Company Shares
(the six month period hereinafter referred to as the “Distribution
Compliance Period”) shall only be made in compliance with the safe
harbor provisions set forth in Regulation S, pursuant to the registration
provisions of the Securities Act or an exemption therefrom, and that all
offers and sales after the Distribution Compliance Period shall be made
only in compliance with the registration provisions of the Securities Act
or an exemption therefrom and in each case only in accordance with
applicable state securities laws;
and
|
11
|
|
(2)
|
The
Shareholder will not engage in hedging transactions with respect to the
Company Shares until after the expiration of the Distribution Compliance
Period.
|
4.8 Conflict of
Interest. The Shareholder acknowledges that it is aware and
understands the facts and circumstances of the Conflicts of Interest, as defined
in Section 3.8
that may, individually and in the aggregate, create a conflict of
interest. The Shareholder hereby waives each and all of the Conflicts of
Interest, in addition to any other conflicts of interest that may arise may
exist or arise by virtue of the Conflicts of Interest and acknowledges that it
has carefully read this Agreement, that it is consistent with the terms
previously negotiated by the Parties, and understands that it is free at any
time to obtain independent counsel for further guidance.
ARTICLE
V
COVENANTS
5.1 Further
Assurances. Each of the Parties shall use its reasonable commercial
efforts to proceed promptly with the transactions contemplated herein, to
fulfill the conditions precedent for such party’s benefit or to cause the same
to be fulfilled and to execute such further documents and other papers and
perform such further acts as may be reasonably required or desirable to carry
out the provisions of this Agreement and to consummate the transactions
contemplated herein.
ARTICLE
VI
DELIVERIES
6.1 Items
to be delivered to the Shareholder prior to or at Closing by the
Company.
(a) Certificate
of Incorporation and amendments thereto, By-laws and amendments thereto, and
certificate of good standing of the Company in Delaware;
(b) all
applicable schedules hereto;
(c) all
minutes and resolutions of board of director and stockholder meetings in
possession of the Company;
(d) stockholder
list;
(e) all
financial statements and all tax returns in possession of the
Company;
(f)
resolution from the
Company’s Board appointing the designees of the Shareholder to the Company’s
Board of Directors;
(g) resolution
from the Company’s Board, and if applicable, stockholder resolutions approving
this transaction and authorizing the issuances of the shares
hereto;
(h) letters
of resignation from the Company’s current officers and directors to be effective
upon Closing and after the appointments described in this
section;
12
(i)
all books and accounting records up to date,
including but not limited to, bank statements, check stubs, cancelled checks,
bank deposit books, invoices and receipts, all agreements signed by the Company,
and all supporting documents validating journal entries posted on books to date;
and
(j)
any other document reasonably requested by the
Shareholder that he deems necessary for the consummation of this
transaction.
6.2 Items
to be delivered to the Company prior to or at Closing by Immense Fortune and the
Shareholder.
(a) all
applicable schedules hereto;
(b) instructions
from the Shareholder appointing its designees to the Company’s Board of
Directors;
(c) share
certificates and duly executed instruments of transfer and bought and sold notes
from the Shareholder transferring the Immense Fortune Shares to the
Company;
(d) resolutions
from the Board of Directors of Immense Fortune and, if applicable, shareholder
resolutions approving the transactions contemplated hereby
(e) payment
of all liabilities of the Company of up to $50,000 upon the initial closing of
the next offering of common stock by the Company with gross proceeds of at least
$2.0 million to the appropriate creditors of the Company which shall include
indebtedness owed to Company shareholders and fees owing to Company lawyers,
accountants and similar parties; and
(f)
any other document reasonably requested by the Company that it
deems necessary for the consummation of this transaction.
ARTICLE
VII
CONDITIONS
PRECEDENT
7.1 Conditions Precedent to
Closing. The obligations of the Parties under this Agreement shall
be and are subject to fulfillment, prior to or at the Closing, of each of the
following conditions:
(a) That
each of the representations and warranties of the Parties contained herein shall
be true and correct at the time of the Closing Date as if such representations
and warranties were made at such time except for changes permitted or
contemplated by this Agreement;
(b) That
the Parties shall have performed or complied with all agreements, terms and
conditions required by this Agreement to be performed or complied with by them
prior to or at the time of the Closing;
13
(c) That
Immense Fortune shall have received, and provided a copy to the Company, an
opinion of each of the Han Kun Law Offices, Immense Fortune’s counsel in the
People’s Republic of China, and Immense Fortune’s legal counsel in the British
Virgin Islands, substantially in the forms attached hereto as Exhibit
A;
(d) The
Company shall have cancelled 4,267,674 shares of Common Stock and 6,913,236
warrants owned by certain of the Company’s original stockholders (the “Share and Warrant
Cancellation”) pursuant to the Amended and Restated Share and Warrant
Cancellation Agreement dated as of the date of this Agreement entered into by
and between the Company and its stockholders, a copy of which is attached as
Exhibit B;
and
(e) That
prior to Closing the Company shall have engaged a Company-sponsored equity
research firm that is mutually acceptable to the Company and Immense
Fortune.
7.2 Conditions to Obligations of
the
Shareholder. The obligations of the Shareholder shall be subject to
fulfillment prior to or at the Closing, of each of the following
conditions:
(a) The
Company shall have received all of the regulatory, shareholder and other third
party consents, permits, approvals and authorizations necessary to consummate
the transactions contemplated by this Agreement;
(b) The
Company shall have complied with Rule 14(f)(1) of the Exchange Act, if
required;
(c) To
the extent that the liabilities of the Company exceed $50,000 as of the Closing,
the Company shareholders shall have satisfied and paid such excess liabilities
in full; and
7.3 Conditions to Obligations of
the Company. The obligations of the Company shall be subject to
fulfillment at or prior to or at the Closing, of each of the following
conditions:
(a) The
Immense Fortune Parties shall have received all of the regulatory, shareholder
and other third party consents, permits, approvals and authorizations necessary
to consummate the transactions contemplated by this Agreement;
(b) The
Shareholder shall have delivered to the Company the share certificates and duly
executed instruments of transfer and bought and sold notes from the Shareholder
transferring the Immense Fortune Shares to the Company;
(c) All
liabilities of the Company up to $50,000 shall be paid upon the initial closing
of the next offering of common stock by the Company with gross proceeds of at
least $2.0 million, which shall include indebtedness owed to the Company
shareholders and fees owing to lawyers, accountants and similar
parties;
14
ARTICLE
VIII
TERMINATION
8.1 Termination. This
Agreement may be terminated at any time before or, at Closing, by:
(a) The
mutual agreement of the Parties;
(b) Any
Party if:
(i) Any
provision of this Agreement applicable to a Party shall be materially untrue or
fail to be accomplished; or
(ii) Any
legal proceeding shall have been instituted or shall be imminently threatening
to delay, restrain or prevent the consummation of this Agreement;
or
(c) By
the Company at any time on or after March 31, 2011.
Upon termination of this Agreement for
any reason, in accordance with the terms and conditions set forth in this
paragraph, each said Party shall bear all costs and expenses as each Party has
incurred.
ARTICLE
IX
COVENANTS
SUBSEQUENT TO CLOSING
9.1 Registration
Rights. The Company shall (1) file, within sixty (60) days after the
final closing of the next offering of Common Stock by the Company with gross
proceeds of at least $2.0 million and at its expense, with the U.S. Securities
and Exchange Commission (the “Commission”) a
registration statement (the “Initial Registration
Statement”) covering the resale of shares of Common Stock sold in such
offering and (2) file, within ten (10) days following the end of the six (6)
month period that immediately follows the date on which the Company files the
Initial Registration Statement with the Commission, a registration statement
(the “Second
Registration Statement”) covering the resale of Common Stock held by
those persons (and/or their designees) that are stockholders of the Company
immediately prior to the Closing, as set forth in Schedule III attached
hereto (the “Pre-Existing
Stockholders”). The Company shall enter into a Registration Rights
Agreement acceptable to the Pre-Existing Stockholders with respect to the rights
described in this Section 9.1.
9.2 Listing on a Senior U.S.
National Securities Exchange. The Company shall take reasonable
efforts to cause the Company’s securities to be listed on the NYSE Amex and/or
The Nasdaq Stock Market as soon as practicable after the final closing of the
next offering of common stock by the Company with gross proceeds of at least
$2.0 million.
9.3 Transfer Agent Fees and
Costs. From the Closing Date until the expiration of the entire
lock-up period provided in the lock-up agreements to be executed upon the
Closing by each of the Company’s current stockholders as provided in Section
7.2(d) hereof, the Company agrees to pay, on a timely basis, all amounts
invoiced to the Company by its transfer agent on a timely
basis.
15
ARTICLE
X
MISCELLANEOUS
10.1 Survival of Representations,
Warranties and Agreements. Each of the Parties hereto is executing
and carrying out the provisions of this Agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
Agreement or at the closing of the transactions herein provided for and not upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein. Except as
specifically set forth in this Agreement, representations and warranties and
statements made by a party to in this Agreement or in any document or
certificate delivered pursuant hereto shall not survive the Closing Date, and no
claims made by virtue of such representations, warranties, agreements and
covenants shall be made or commenced by any party hereto from and after the
Closing Date.
10.2 Access to Books and
Records. During the course of this transaction through Closing, each
party agrees to make available for inspection all corporate books, records and
assets, and otherwise afford to each other and their respective representatives,
reasonable access to all documentation and other information concerning the
business, financial and legal conditions of each other for the purpose of
conducting a due diligence investigation thereof. Such due diligence
investigation shall be for the purpose of satisfying each party as to the
business, financial and legal condition of each other for the purpose of
determining the desirability of consummating the proposed transaction. The
Parties further agree to keep confidential and not use for their own benefit,
except in accordance with this Agreement any information or documentation
obtained in connection with any such investigation.
10.3 Further
Assurances. If, at any time after the Closing, the Parties shall
consider or be advised that any further deeds, assignments or assurances in law
or that any other things are necessary, desirable or proper to complete the
Exchange in accordance with the terms of this Agreement or to vest, perfect or
confirm, of record or otherwise, the title to any property or rights of the
parties hereto, the Parties agree that their proper officers and directors
shall execute and deliver all such proper deeds, assignments and assurances in
law and do all things necessary, desirable or proper to vest, perfect or confirm
title to such property or rights and otherwise to carry out the purpose of this
Agreement, and that the proper officers and directors of the Parties are fully
authorized to take any and all such action.
10.4 Notice. All
communications, notices, requests, consents or demands given or required under
this Agreement shall be in writing and shall be deemed to have been duly given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
Attention:
If to
Immense Fortune and the Shareholder
Xxxxxxxxx
Xxxxxxxx
X.X. Xxx
0000
Xxxx Xxxx
Xxxxxxx
16
British
Virgin Islands
With
a copy to:
K&L
Gates LLP
00000
Xxxxx Xxxxxx Xxxx., Xxxxxxx Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxx X. Xxxxxxx, Esq.
Fax.:
(000) 000-0000
If to the
Company:
SRKP 20, Inc.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx
000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
10.5 Entire
Agreement. This Agreement, the Disclosure Schedule and any
instruments and agreements to be executed pursuant to this Agreement, sets forth
the entire understanding of the Parties hereto with respect to its subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the Parties hereto. No waiver
of any provision of this Agreement in any instance shall be deemed to be a
waiver of the same or any other provision in any other instance. Failure of
any party to enforce any provision of this Agreement shall not be construed as a
waiver of its rights under such provision.
10.6 Successors and
Assigns. This Agreement shall be binding upon, enforceable against
and inure to the benefit of, the parties and designees hereto and their
respective heirs, administrators, executors, personal representatives,
successors and assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person. This Agreement may not be assigned
by any party hereto except with the prior written consent of the other parties,
which consent shall not be unreasonably withheld.
10.7 Governing
Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of Delaware are applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles.
10.8 Counterparts. This
Agreement may be executed in multiple counterparts, which may be facsimiles,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.9 Construction. Headings
contained in this Agreement are for convenience only and shall not be used in
the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. The Disclosure Schedule is hereby incorporated herein by
reference and made a part of this Agreement. As used herein, the singular
includes the plural, and the masculine, feminine and neuter gender each includes
the others where the context so indicates.
17
10.10 Severability. If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, this Agreement shall be interpreted and
enforceable as if such provision were severed or limited, but only to the extent
necessary to render such provision and this Agreement enforceable.
[SIGNATURE PAGE FOLLOWS]
18
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the date first set forth above.
|
SRKP
20, INC.
|
|||
|
By
|
/s/ Xxxxxxx Xxxxxxxxx
|
||
|
Name:
Xxxxxxx Xxxxxxxxx
|
|||
|
Title:
President
|
|||
|
IMMENSE
FORTUNE HOLDINGS LIMITED
|
|||
|
By:
|
/s/ Xxxx Xx
|
||
|
Name:
Xxxx Xx
|
|||
|
Title:
President
|
|||
|
FINEST
DAY LIMITED
|
|||
|
By:
|
/s/ [COMPANY SEAL]
|
||
|
Name:
|
|||
|
Title:
|
|||
|
LEGEND
MEDIA HOLDINGS HK LIMITED
|
|||
|
By:
|
/s/ [COMPANY SEAL]
|
||
|
Name:
|
|||
|
Title:
|
|||
|
FEIGEDA
ELECTRONIC (SZ) CO., LTD.
|
|||
|
By:
|
/s/ [COMPANY SEAL]
|
||
|
Name:
|
|||
|
Title:
|
|||
19
|
FANGGUAN
ELECTRONIC (CC) CO., LTD
|
||
|
By:
|
/s/ [COMPANY SEAL]
|
|
|
Name:
|
||
|
Title:
|
||
20
EXHIBIT
A
FORMS OF OPINION
LETTERS
A-1
EXHIBIT
B
AMENDED AND
RESTATED
SHARE AND WARRANT
CANCELLATION AGREEMENT
B-1
SCHEDULE
I
SHAREHOLDER AND COMPANY
SHARES
|
Name
|
Number of Company Shares
|
|||
|
Wu Zuxi
|
5,183,966 | |||
|
Bu
Xxxxx
|
3,031,294 | |||
|
Joyrise
Holdings limited
|
606,259 | |||
|
Goldwide
Holdings limited
|
606,259 | |||
|
Xxxxx
Xxxxxx
|
757,823 | |||
|
Xxxx
Xxxx
|
757,823 | |||
|
Xx
Xxxxx
|
606,259 | |||
|
Ding
Shaohua
|
682,041 | |||
|
Wang
Shouhua
|
682,041 | |||
|
Xxxx
Xxxxxx
|
682,041 | |||
|
Xxxx
Xxxxx
|
682,041 | |||
|
Tian
Keqian
|
136,408 | |||
|
Xiao
Xueping
|
136,408 | |||
|
Zhang
Rongzhong
|
121,252 | |||
|
Xxxx
Xxxx
|
121,252 | |||
|
Xxxx
Xxxxxx
|
121,252 | |||
|
Xxxxx
Xxxxxx
|
121,252 | |||
|
Richever
Limited
|
120,797 | |||
|
Total
|
15,156,468 | |||
SCHEDULE
II
IMMENSE
FORTUNE SHARES
|
Name
|
Number of Immense Fortune Shares
|
|
|
Finest
Day Limited
|
|
1
|
SCHEDULE
III
|
WestPark
Financial Services, LLC
|
|
Xxxxxxx
Xxxxxxxxx
|
|
Xxxxxx
Xxxxxxxxxxxx
|
|
The
Xxxxx Xxxxxxxxxxxx Trust dated 2/9/2000
|
|
The
Xxxxx X. Xxxxxxxx Trust dated 2/3/2000
|
|
Xxxxxxx
Xxxxxxxxxxxx
|
|
The
Xxxxxx Xxxxxxxxx Trust
|
|
The
Xxxxxx Xxxxxxxxx Trust
|
|
Xxxxxx
Xxxxxx
|
|
Xxxxx
XxXxxxxx
|
|
Xxxxx
Xxxxx
|
|
Xxxxxxxx
Xxxxx
|
|
Xxxx
Xxxx
|
|
XxxXxx
Xxxxx
|
DISCLOSURE
SCHEDULE
ITEM
2.3 – CAPITALIZATION
The
Company entered into an Amended and Restated Share and Warrant Cancellation
Agreement with the Company’s stockholders as indicated in the Share Exchange
Agreement.
ITEM
2.7 - INDEBTEDNESS; CONTRACTS; NO DEFAULTS
As set
forth in the Financial Statements.
ITEM
3.1(b) - SUBSIDIARIES
|
Subsidiaries
|
Jurisdiction of Organization
|
|
|
Legend
Media Holdings HK Limited
|
Hong
Kong
|
|
|
Feigeda
Electronic (SZ) Co., Ltd. (1)
|
|
People’s
Republic of China
|
|
(1)
|
Feigeda
Electronic (SZ) Co., Ltd. is a wholly-owned subsidiary of Legend Media
Holdings HK Limited.
|
ITEM
3.5 – MATERIAL INSTRUMENTS
FGD-Lease#09001-Fuyong
FGD-Lease#09002-Fuyuan
FGD-Lend#09001-Pudong
Development Bank
FGD-Lend#09002-Xingye
Bank
FGD-Agreement#09001-Workplace
fitment
FGD-Agreement#09002-Share
Exchange agreement
FGD-Agreement#09003-Audit
agreement 0609&0909
ITEM
3.6 – COMPLIANCE WITH THE LAW
None.
ITEM
3.7 – LITIGATION
None.
TABLE OF
CONTENTS
|
Page
|
||
|
ARTICLE
I THE EXCHANGE
|
2
|
|
|
1.1
|
The
Exchange
|
2
|
|
1.2
|
Time and Place of
Closing
|
2
|
|
1.3
|
Effective
Time
|
2
|
|
1.4
|
Tax
Consequences
|
2
|
|
ARTICLE
II
|
2
|
|
|
2.1
|
Due Organization and
Qualification; Due Authorization
|
2
|
|
2.2
|
No Conflicts or
Defaults
|
3
|
|
2.3
|
Capitalization
|
3
|
|
2.4
|
Financial
Statements
|
4
|
|
2.5
|
No Assets or
Liabilities
|
4
|
|
2.6
|
Taxes
|
4
|
|
2.7
|
Indebtedness;
Contracts; No Defaults
|
4
|
|
2.8
|
Real
Property
|
4
|
|
2.9
|
Compliance with
Law
|
4
|
|
2.10
|
Permits and
Licenses
|
5
|
|
2.11
|
Litigation
|
5
|
|
2.12
|
Insurance
|
5
|
|
2.13
|
Patents; Trademarks
and Intellectual Property Rights
|
5
|
|
2.14
|
Securities Law
Compliance
|
5
|
|
2.15
|
Conflicts of
Interest
|
5
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE IMMENSE FORTUNE
ENTITIES
|
5
|
|
|
3.1
|
Due Organization and
Qualification; Due Authorization
|
6
|
|
3.2
|
No Conflicts or
Defaults
|
6
|
|
3.3
|
Capitalization
|
7
|
|
3.4
|
Taxes
|
7
|
|
3.5
|
Indebtedness;
Contracts; No Defaults
|
7
|
|
3.6
|
Compliance with
Law
|
8
|
|
3.7
|
Litigation
|
8
|
|
3.8
|
Conflict of
Interest
|
8
|
|
ARTICLE
IV REPRESENTATION AND WARRANTIES OF THE SHAREHOLDER
|
9
|
|
|
4.1
|
Title to
Shares
|
9
|
|
4.2
|
Due
Authorization
|
9
|
|
4.3
|
Purchase for
Investment
|
10
|
|
4.4
|
Investment
Experience
|
10
|
|
4.5
|
Information
|
10
|
|
4.6
|
Restricted
Securities
|
10
|
|
4.7
|
Exempt
Issuance
|
11
|
|
4.8
|
Conflict of
Interest
|
12
|
|
ARTICLE
V COVENANTS
|
12
|
|
|
5.1
|
Further
Assurances
|
12
|
|
ARTICLE
VI DELIVERIES
|
12
|
|
|
6.1
|
Items
to be delivered to the Shareholder prior to or at Closing by the
Company
|
12
|
|
6.2
|
Items
to be delivered to the Company prior to or at Closing by Immense Fortune
and the Shareholder
|
13
|
|
ARTICLE
VII CONDITIONS PRECEDENT
|
13
|
|
|
7.1
|
Conditions Precedent
to Closing
|
13
|
|
7.2
|
Conditions to
Obligations of the Shareholder
|
14
|
|
7.3
|
Conditions to
Obligations of the Company
|
14
|
|
ARTICLE
VIII TERMINATION
|
15
|
|
|
8.1
|
Termination
|
15
|
|
ARTICLE
IX COVENANTS SUBSEQUENT TO CLOSING
|
15
|
|
|
9.1
|
Registration
Rights
|
15
|
|
9.2
|
Listing on a Senior US
National Securities Exchange
|
15
|
|
9.3
|
Transfer Agent Fees
and Costs
|
15
|
|
ARTICLE
X MISCELLANEOUS
|
16
|
|
|
10.1
|
Survival of
Representations, Warranties and Agreements
|
16
|
|
10.2
|
Access to Books and
Records
|
16
|
|
10.3
|
Further
Assurances
|
16
|
|
10.4
|
Notice
|
16
|
|
10.5
|
Entire
Agreement
|
17
|
|
10.6
|
Successors and
Assigns
|
17
|
|
10.7
|
Governing
Law
|
17
|
|
10.8
|
Counterparts
|
17
|
|
10.9
|
Construction
|
17
|
|
10.10
|
Severability
|
18
|
