Exhibit 2.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, made and entered into as of this 12th day of
December, 2012 (the "Agreement"), by and between Comjoyful International Ltd.
(the "Purchaser"), Camelot Corporation (the "Company"), and Xxxxxx Xxxxxxx (the
"Seller").
WITNESSETH:
WHEREAS, the Seller is the record and beneficial owner of 1,784,497
shares (the "Shares") of the common stock, $0.01 par value per share (the
"Common Stock"), of the Company, which represents 85.76% of the outstanding
shares of Common Stock;
WHEREAS, the Seller desires to sell to the Purchaser, and the Purchaser
desires to purchase from the Seller, the Shares, all upon the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements of the parties herein contained, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Seller, the Company and the Purchaser hereby agree as follows:
1. Sale and Purchase of Shares.
1.1 Upon the terms and subject to the conditions of this Agreement, at
the Closing (as hereinafter defined), the Purchaser shall purchase from the
Seller and the Seller shall sell, convey, transfer, assign and deliver to the
Purchaser the Shares, free and clear of all liens and encumbrances.
1.2 In consideration for such sale and delivery of the Shares, on the
Closing Date (as hereinafter defined), the Purchaser will pay to Seller an
amount in cash equal to USD87,618.79, and will pay to the Creditors (as defined
in the Schedule 2.8 of this Agreement) an amount in cash equal to USD
212,381.21, totaling USD300,000 as total consideration of the transaction (the
"Purchase Price"). No less than one (1) business day prior to the Closing Date,
the Purchaser shall have deposited the Purchase Price in escrow with Loeb & Loeb
LLP, as escrow agent. In no event will the Purchase Price be provided to the
Seller prior to the Shares being transferred to the Purchaser.
1.3 Subject to the satisfaction or waiver of the conditions set forth
in this Agreement, the closing (the "Closing") of the transactions contemplated
hereby shall take place on December 12, 2012 or on such other date as is
mutually agreed by the parties hereto (the "Closing Date").
2. Representations and Warranties of the Company and the Sellers. The
Company and the Seller hereby jointly and severally represent and warrant to the
Purchaser, as of the date hereof and as of the Closing Date, as follows:
2.1 Organization, Good Standing and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Nevada and has the requisite corporate power to own, lease
and operate its properties and assets and to conduct its business as it is now
being conducted. The Company does not have any subsidiaries. The Company is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary.
2.2 Authorization; Enforcement. The Company has the requisite
corporate power and authority to enter into and perform this Agreement. The
execution, delivery and performance of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action, and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required. This Agreement constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation, conservatorship, receivership or
similar laws relating to, or affecting generally the enforcement of, creditor's
rights and remedies or by other equitable principles of general application.
2.3 Capitalization. The authorized capital stock of the Company and
the shares thereof currently issued and outstanding as of the date hereof are
set forth on Schedule 2.3 hereto. All of the outstanding shares of Common Stock
have been duly and validly authorized. There are no shares of preferred stock,
$0.01 par value per share (the "Preferred Stock") issued or outstanding. No
shares of Common Stock are entitled to preemptive rights or registration rights
and there are no outstanding options, warrants, scrip, rights to subscribe to,
call or commitments of any character whatsoever relating to, or securities or
rights convertible into, any shares of capital stock of the Company. There are
no contracts, commitments, understandings, or arrangements by which the Company
is or may become bound to issue additional shares of the capital stock of the
Company or options, securities or rights convertible into shares of capital
stock of the Company. The Company is not a party to any agreement granting
registration or anti-dilution rights to any person with respect to any of its
equity or debt securities. The Company is not a party to, and it has no
knowledge of, any agreement restricting the voting or transfer of any shares of
the capital stock of the Company. The offer and sale of all capital stock,
convertible securities, rights, warrants, or options of the Company issued prior
to the Closing complied with all applicable federal and state securities laws,
and no stockholder has a right of rescission or claim for damages with respect
thereto. The Company has furnished or made available to the Purchaser true and
correct copies of the Company's Articles of Incorporation as in effect on the
date hereof (the "Articles"), and the Company's Bylaws as in effect on the date
hereof (the "Bylaws").
2
2.4 Commission Documents, Financial Statements. The Common Stock of
the Company is registered pursuant to Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Company has
timely filed all reports, schedules, forms, statements and other documents
required to be filed by it with the Securities and Exchange Commission (the
"Commission") pursuant to the reporting requirements of the Exchange Act,
including material filed pursuant to Section 13(a) or 15(d) of the Exchange Act
(all of the foregoing including filings incorporated by reference therein being
referred to herein as the "Commission Documents"). At the times of their
respective filings, the Commission Documents complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder and other federal, state and local laws, rules
and regulations applicable to such documents, and, as of their respective dates,
none of the Commission Documents 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. The financial statements of the
Company included in the Commission Documents comply as to form in all material
respects with applicable accounting requirements and the published rules and
regulations of the Commission or other applicable rules and regulations with
respect thereto. Such financial statements have been prepared in accordance with
United States generally accepted accounting principles ("GAAP") applied on a
consistent basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements), and fairly present in all material
respects the financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments). The Company
trades under the symbol CAML.
2.5 No Material Adverse Change. Since inception the Company has not
experienced or suffered any material adverse effect.
2.6 No Undisclosed Liabilities. The Company has no liabilities,
obligations, claims or losses (whether liquidated or unliquidated, secured or
unsecured, absolute, accrued, contingent or otherwise) other than those
disclosed in the Commission Documents, incurred in the ordinary course of the
Company's business since October 31, 2012.
2.7 No Undisclosed Events or Circumstances. Since October 31, 2012, no
event or circumstance has occurred or exists with respect to the Company or its
businesses, properties, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or disclosed.
2.8 Indebtedness. The Schedule 2.8 set forth all outstanding secured
and unsecured Indebtedness of the Company, for which the Company has
commitments. For the purposes of this Agreement, "Indebtedness" shall mean (a)
any liabilities for borrowed money, (b) all guaranties, endorsements and other
3
contingent obligations in respect of Indebtedness of others, whether or not the
same are or are required to be reflected in the Company's balance sheet (or the
notes thereto) in accordance with GAAP; and (c) any payments due under any
agreement or arrangement. The Company is not in default with respect to any
Indebtedness.
2.9 Title to Assets. The Company has good and marketable title to all
of its real and personal property reflected in the Commission Documents, free
and clear of any mortgages, pledges, charges, liens, security interests or other
encumbrances.
2.10 Subsidiaries. The Company does not own, directly or indirectly,
any capital stock or other equity securities of any other corporation,
partnership, limited liability company, association or other business entity.
2.11 Actions Pending. There is no action, suit, claim, investigation,
arbitration, alternate dispute resolution proceeding or any other proceeding
pending or threatened against the Company.
2.12 Compliance with Law. The business of the Company has been and is
presently being conducted in accordance with all applicable laws, rules,
regulations and ordinances. The Company has all franchises, permits, licenses,
consents and other governmental or regulatory authorizations and approvals
necessary for the conduct of its business as it is now being conducted.
2.13 Taxes. The Company has accurately prepared and filed all federal,
state and other tax returns required by law to be filed by it, or has paid or
made provisions for the payment of all taxes shown to be due and all additional
assessments, and adequate provisions have been and are reflected in the
financial statements of the Company for all current taxes and other charges to
which the Company is subject and which are not currently due and payable. The
Company has no knowledge of any additional assessments, adjustments or
contingent tax liability of any nature whatsoever, whether pending or threatened
against the Company for any period, nor of any basis for any such assessment,
adjustment or contingency.
2.14 Certain Fees. No commissions, brokers' fees or finder's fee will
be payable by the Company in connection with the transactions contemplated by
this Agreement, nor will any such fee be incurred as a result of any actions of
the Company.
2.15 Disclosure. Neither this Agreement or the Schedules hereto nor
any other documents, certificates or instruments furnished to the Purchaser by
or on behalf of the Company in connection with the transactions contemplated by
this Agreement contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements made herein or
therein, in the light of the circumstances under which they were made herein or
therein, not misleading.
4
2.16 Intellectual Property. The Company does not own, use or license
any Intellectual Property in its business as presently conducted.
2.17 Environmental Compliance. The Company has obtained all material
approvals, authorization, certificates, consents, licenses, orders and permits
or other similar authorizations of all governmental authorities, or from any
other person, that are required under any Environmental Laws. "Environmental
Laws" shall mean all applicable laws relating to the protection of the
environment including, without limitation, all requirements pertaining to
reporting, licensing, permitting, controlling, investigating or remediating
emissions, discharges, releases or threatened releases of hazardous substances,
chemical substances, pollutants, contaminants or toxic substances, materials or
wastes, whether solid, liquid or gaseous in nature, into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of hazardous
substances, chemical substances, pollutants, contaminants or toxic substances,
material or wastes, whether solid, liquid or gaseous in nature. The Company has
all necessary governmental approvals required under all Environmental Laws and
used in its business. The Company is also in material compliance with all other
limitations, restrictions, conditions, standards, requirements, schedules and
timetables required or imposed under all Environmental Laws. There are no past
or present events, conditions, circumstances, incidents, actions or omissions
relating to or in any way affecting the Company that violate or may violate any
Environmental Law after the Closing Date or that may give rise to any
environmental liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study or investigation (i) under any
Environmental Law, or (ii) based on or related to the manufacture, processing,
distribution, use, treatment, storage (including without limitation underground
storage tanks), disposal, transport or handling, or the emission, discharge,
release or threatened release of any hazardous substance.
2.18 Books and Record Internal Accounting Controls. The books and
records of the Company accurately reflect in all material respects the
information relating to the business of the Company, including the location and
collection of its assets, and the nature of all transactions giving rise to,
without limitation, the obligations, revenue and accounts receivable of the
Company. The Company maintains a system of internal accounting controls
sufficient, in the judgment of the Company, to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate actions is taken with respect to any differences.
2.19 Material Agreements. Except as set forth in the Commission
Documents, the Company is not a party to any written or oral contract,
instrument, agreement, commitment, obligation, plan or arrangement, a copy of
5
which would be required to be filed with the Commission as an exhibit to a
registration statement on Form S-1 or applicable form (collectively, "Material
Agreements") if the Company were registering securities under the Securities Act
of 1933, as amended (the "Securities Act"). The Company has in all material
respects performed all the obligations required to be performed by it to date
under the Material Agreements, and has received no written notice of default and
is not in material default under any Material Agreement now in effect, the
result of which could cause a material adverse effect and, to the knowledge of
the Company, no other party to any Material Agreement is in breach or default
thereof. No event has occurred or circumstance exists that (with or without
notice or lapse of time) would (a) contravene, conflict with or result in a
violation or breach of, or become a default or event of default under, any
provision of any Material Agreement or (b) permit the Company or any other
person the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel, terminate or modify any
Material Agreement. The Company has not received notice of the pending or
threatened cancellation, revocation or termination of any Material Agreement to
which it is a party. There are no renegotiations of, or attempts to renegotiate,
or outstanding rights to renegotiate any material terms of any Material
Agreement.
2.20 Transactions with Affiliates. Except as set forth in the
Commission Documents, there are no loans, leases, agreements, contracts, royalty
agreements, management contracts or arrangements or other continuing
transactions between (i) the Company on the one hand, and (ii) on the other
hand, any officer, employee, consultant or director of the Company, or any
person owning any capital stock of the Company or any member of the immediate
family of such officer, employee, consultant, director or stockholder or any
corporation or other entity controlled by such officer, employee, consultant,
director or stockholder, or a member of the immediate family of such officer,
employee, consultant, director or stockholder.
2.21 Employees. The Company does not have any collective bargaining
arrangements or agreements covering any of its employees. The Company does not
have any employment contract, agreement regarding proprietary information,
non-competition agreement, non-solicitation agreement, confidentiality
agreement, or any other similar contract or restrictive covenant, relating to
the right of any officer, employee or consultant to be employed or engaged by
the Company. No officer, consultant or key employee of the Company has
terminated or, to the knowledge of the Company, has any present intention of
terminating his or her employment or engagement with the Company.
2.22 Absence of Certain Developments. Except as set forth in the
Commission Documents or in this Agreement, since October 31, 2012, the Company
has not:
(a) issued any stock, bonds or other corporate securities, convertible
into or exchangeable for any capital stock, or any rights, options or warrants
with respect thereto;
6
(b) borrowed any amount or incurred or become subject to any
liabilities (absolute or contingent) except current liabilities incurred in the
ordinary course of business which are comparable in nature and amount to the
current liabilities incurred in the ordinary course of business during the
comparable portion of its prior fiscal year;
(c) discharged or satisfied any lien or encumbrance or paid any
obligation or liability (absolute or contingent), other than current liabilities
paid in the ordinary course of business;
(d) sold, assigned or transferred any other tangible assets, or
canceled any debts or claims, except in the ordinary course of business;
(e) sold, assigned or transferred any patent rights, trademarks, trade
names, copyrights, trade secrets or other intangible assets or intellectual
property rights, or disclosed any proprietary confidential information to any
person except to customers in the ordinary course of business or to the
Purchaser or its representatives;
(f) suffered any substantial losses or waived any rights of material
value, whether or not in the ordinary course of business, or suffered the loss
of any material amount of prospective business;
(g) made any changes in employee compensation except in the ordinary
course of business and consistent with past practices;
(h) made capital expenditures or commitments therefor;
(i) entered into any other transaction other than in the ordinary
course of business, or entered into any other material transaction, whether or
not in the ordinary course of business;
(j) made charitable contributions or pledges;
(k) suffered any material damage, destruction or casualty loss,
whether or not covered by insurance;
(l) experienced any material problems with labor or management in
connection with the terms and conditions of their employment;
(m) entered into an agreement, written or otherwise, to take any of
the foregoing actions.
2.23 Xxxxxxxx-Xxxxx Act. The Company is in compliance in all material
respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the
"Xxxxxxxx-Xxxxx Act"), and the rules and regulations promulgated thereunder,
that are effective.
7
2.24 Transfer Agent. The name, address, telephone number, fax number,
contact person and email address of the Company's transfer agent is set forth on
Schedule 2.24 hereto.
2.25 Insurance. The Company is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent in the businesses in which the Company is engaged.
3. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Purchaser as follows as of the date hereof and as
of the Closing Date:
3.1 Ownership of Shares. The Shares are owned of record and
beneficially by the Seller, free and clear of any and all liens, encumbrances,
claims, charges and assessments and subject to no options, agreements, or
restrictions with respect to transferability except as imposed by applicable
federal and state securities laws. The Seller has good and valid title to the
Shares and, upon the transfer of the Shares in accordance with this Agreement,
the Buyer will receive good and valid title to the Shares, free and clear of all
liens other than restrictions on transfer imposed by the Securities Act and
applicable state securities or "Blue Sky" laws. There are no options, warrants,
rights, calls, commitments, conversion rights, rights of exchange or other
agreements of any character, contingent or otherwise, providing for the purchase
or sale of any of the Shares by any Person other than the Purchaser pursuant
hereto, nor any arrangements that require or permit the Shares to be voted by or
at the discretion of anyone other than the Seller.
3.2 Authorization. The Seller is of legal age and has all requisite
power, legal capacity and authority to enter into, and transfer and deliver the
Shares pursuant to this Agreement and to assume and perform the Seller's
obligations hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with its
terms, except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally or by the principles governing the
availability of equitable remedies.
3.3 No Conflicts. The execution, delivery and performance of this
Agreement, the transactions contemplated herein and therein do not and will not
(i) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any
agreement, mortgage, deed of trust, indenture, note, bond, license, lease
agreement, instrument or obligation to which the Seller is a party or by which
it or its properties or assets are bound, (ii) create or impose a lien,
mortgage, security interest, charge or encumbrance of any nature on any property
of the Seller under any agreement or any commitment to which the Seller is a
party or by which the Seller is bound or by which any of its respective
properties or assets are bound, or (iii) result in a violation of any federal,
state, local or foreign statute, rule, regulation, order, judgment or decree
(including Federal and state securities laws and regulations) applicable to the
8
Seller or by which any property or asset of the Seller are bound or affected.
The Seller is not required under any law, rule or regulation to obtain any
consent, authorization or order of, or any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any
of its obligations under this Agreement, or issue and sell the Shares in
accordance with the terms hereof or thereof.
3.4 Seller is an informed and sophisticated investor, and has engaged
expert advisors, experienced in transactions of the type contemplated by this
Agreement. Seller further represents that it has been furnished by the Company
with, and has evaluated, all information it deems necessary, desirable and
appropriate to evaluate the merits and risks of the transactions contemplated
herein and has received such legal and financial other advice as deemed to be
necessary, desirable and appropriate to enable it to make an informed and
intelligent decision with respect to the execution, delivery and performance of
this Agreement. In evaluating the suitability of the transactions contemplated
herein, Seller has not relied upon any representations or information whether
oral or written made by or on behalf of Purchaser other than the representations
and warranties of the Purchaser expressly set forth in this Agreement. Seller
acknowledges that (i) the Purchaser or its affiliates or agents currently may
have, and later may come into possession of, information with respect to the
Company that is not known to Seller and that may be material to a decision to
sell the Shares ("Seller Excluded Information"), (ii) Seller has determined to
sell the Shares notwithstanding its lack of knowledge of the Seller Excluded
Information and (iii) none of Purchaser or its affiliates or agents shall have
any liability to Seller, and Seller waives and releases any claims that it might
have against Purchaser or its affiliates or agents whether under applicable
securities laws or otherwise, with respect to the nondisclosure of the Seller
Excluded Information in connection with the sale of the Sharess and the
transactions contemplated by this Agreement. Seller understands that Purchaser
and its affiliates and agents will rely on the accuracy and truth of the
foregoing representations, and Seller hereby consents to such reliance.
3.5 Reliance on Representations. Seller understands and acknowledges
that, in effecting the transactions contemplated by this Agreement, the Buyer
will rely on the representations and warrants contained in this Section 3
4. Representations and Warranties of the Purchaser. The Purchaser hereby
represents and warrants to the Seller as follows as of the date hereof and as of
the Closing Date:
4.1 Authorization; Enforcement. The Purchaser has the requisite
corporate power and authority to enter into and perform this Agreement. The
execution, delivery and performance of this Agreement by the Purchaser and the
consummation by it of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action, and no further consent or
authorization of the Purchaser or its Board of Directors or stockholders is
required. This Agreement constitutes a valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation, conservatorship,
9
receivership or similar laws relating to, or affecting generally the enforcement
of, creditor's rights and remedies or by other equitable principles of general
application.
4.2 Status of Purchaser. The Purchaser is a sophisticated investor, is
capable of bearing the loss of its investment in the Company, and is acquiring
the Shares for investment purposes only and not with a view to the distribution
or resale of any part thereof. Purchaser acknowledges that it has had the
opportunity to review this Agreement and the transactions contemplated by this
Agreement with Purchaser's own legal counsel and investment and tax advisors.
Purchaser is not relying on any statements or representations of the Seller or
any of its representatives or agents for legal, tax or investment advice with
respect to this Agreement or the transactions contemplated by the Agreement.
4.3 Purchaser understands that Purchaser (and not Seller) shall be
responsible for any and all tax liabilities of Purchaser that may arise as a
result of the transactions contemplated by this Agreement.
4.4 Purchaser acknowledges and understands the Shares have not been
registered under the Securities Act, and, if in the future the Purchaser decides
to offer, resell, pledge or otherwise transfer the Shares, such Shares may be
offered, resold, pledged or otherwise transferred only (A) pursuant to an
effective registration statement filed under the Securities Act, (B) pursuant to
an exemption from registration under Rule 144 promulgated under the Securities
Act, if available, or (C) pursuant to any available other exemption from the
registration requirements of the Securities Act, and in each case in accordance
with any applicable securities laws of any state or any other jurisdiction.
Absent registration or an available exemption from registration, Purchaser
agrees that it will not resell the Securities and acknowledges that certificates
representing the Securities shall bear a legend to the foregoing effect.
5. Covenants of the Company. The Company and the Seller covenant with the
Purchaser as follows, which covenants are for the benefit of the Purchaser:
5.1 Securities Compliance. The Company shall make such filings as
required with the Commission in accordance with their rules and regulations, of
the transactions contemplated by this Agreement, and shall take all other
necessary action and proceedings as may be required by applicable law, rule and
regulation relating to the transactions contemplated by this Agreement.
6. Conditions Precedent to the Obligation of the Seller to Sell the Shares.
The obligation hereunder of the Seller to sell the Shares to the Purchaser is
subject to the satisfaction or waiver, at or before the Closing, of each of the
conditions set forth below. These conditions are for the Seller's sole benefit
and may be waived by the Seller at any time in its sole discretion.
10
6.1 Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser hereunder shall be true and
correct in all material respects (except for those representations and
warranties that are qualified by materiality, which shall be true and correct in
all respects) as of the date when made and as of the Closing Date, as though
made at that time, except for representations and warranties that are expressly
made as of a particular date, which shall be true and correct in all material
respects (except for those representations and warranties that are qualified by
materiality, which shall be true and correct in all respects) as of such date.
6.2 Delivery of Purchase Price. The Purchase Price for the Shares has
been delivered to the Seller and Creditors at such Closing Date.
7. Conditions Precedent to the Obligation of the Purchaser to Purchase the
Shares. The obligation hereunder of the Purchaser to acquire and pay for the
Shares is subject to the satisfaction or waiver, at or before the Closing, of
each of the conditions set forth below. These conditions are for the Purchaser's
sole benefit and may be waived by the Purchaser at any time in its sole
discretion.
7.1 Accuracy of the Seller's and the Company's Representations and
Warranties. Each of the representations and warranties of the Company and the
Sellers in this Agreement shall be true and correct in all material respects
(except for those representations and warranties that are qualified by
materiality, which shall be true and correct in all respects) as of the date
when made and as of such Closing Date as though made at that time, except for
representations and warranties that are expressly made as of a particular date,
which shall be true and correct in all material respects (except for those
representations and warranties that are qualified by materiality, which shall be
true and correct in all respects) as of such date.
7.2 Cancelation of the Indebtedness. As described in Section 2.8 of
this Agreement, Schedule 2.8 set forth all outstanding secured and unsecured
Indebtedness of the Company. Prior to the delivery of Purchaser Price to the
Seller and the Closing of the transaction, all documentation representing the
Indebtedness disclosed on the Schedule 2.8 shall be cancelled. Upon Closing, the
Company shall have no liabilities, obligations, claims or losses (whether
liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent
or otherwise) owed to any third party.
7.3 Performance by the Company and the Seller. The Company and the
Seller shall have performed, satisfied and complied in all respects with all
covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by each of the Company and the Seller at or prior to
the Closing.
7.4 No Suspension, Etc. Trading in the Common Stock shall not have
been suspended by the Commission, and, at any time prior to the Closing Date,
trading in securities generally as reported by Bloomberg Financial Markets
("Bloomberg") shall not have been suspended or limited, or minimum prices shall
not have been established on securities whose trades are reported by Bloomberg,
11
nor shall a banking moratorium have been declared either by the United States or
New York State authorities, nor shall there have occurred any material outbreak
or escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on, or any material adverse change in any
financial market which, in each case, in the reasonable judgment of the
Purchaser, makes it impracticable or inadvisable to purchase the Shares.
7.5 No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
7.6 No Proceedings or Litigation. No action, suit or proceeding before
any arbitrator or any governmental authority shall have been commenced, and no
investigation by any governmental authority shall have been threatened, against
the Company, or any of the officers, directors or affiliates of the Company
seeking to restrain, prevent or change the transactions contemplated by this
Agreement, or seeking damages in connection with such transactions.
7.7 Certificates; Share Transfer. The Seller shall have endorsed and
delivered to the Company's transfer agent the certificates representing the
Shares and the stock powers for the transfer of the Shares to the Purchaser. The
Company shall have delivered an irrevocable instruction letter to the Company's
transfer agent relating to the transfer of the Shares to the Purchaser and, if
required by the transfer agent, counsel to the Company shall have delivered an
opinion letter to the transfer agent opining that the transfer of the Shares to
the Purchaser complies with all applicable laws.
7.8 Material Adverse Effect. The Company shall not have suffered a
material adverse effect at or before the Closing Date.
7.9 SEC Filings. The Company shall have filed all documents or reports
required to be filed by it with the Commission.
7.10 Resignation of Officers; Appointment of Officers. Each of the
officers of the Company shall have signed a resignation letter indicating that
such officer has resigned as of the Closing Date, and the persons listed on
Schedule 7.9 hereto shall have been appointed to the positions opposite their
name.
7.11 Resignation of Directors. Each of the directors of the Company
shall have signed a resignation letter indicating that such director has
resigned as of the end of the time period specified in Rule 14f-1 of the
Exchange Act, and each of the persons listed on Schedule 7.10 shall have been
named a director of the Company effective ten (10) days after the filing and
mailing of the Schedule 14f-1 specified in Section 8.1.
12
8. Additional Agreements.
8.1 Schedule 14f-1. The Company shall file a Schedule 14f-1 pursuant
to Rule 14f-1 promulgated under the Exchange Act relating to the transactions
specified in this Agreement within five (5) business days of the Closing Date.
For clarity purposes, the newly appointed officers of the Company will be
responsible for causing the Company to make this filing.
8.2 Non-removal. The Company and the Seller agrees that the officers
of the Company appointed pursuant to the provisions of Section 7.9 may not be
removed by the Board of Directors until after the directors listed in Schedule
7.10 have taken office.
8.3 Board of Directors. The Company and the Seller agree that after
the period specified in Section 7.10, the persons specified on Schedule 7.10
shall be the sole directors of the Company.
9. Survival And Indemnification.
9.1 Unless otherwise specified herein, all representations,
warranties, covenants, agreements and indemnities contained in this Agreement or
in any document delivered pursuant hereto shall be deemed to be material and to
have been relied upon by the parties hereto, and shall survive for a period of
one year after the Closing (the "Survival Period").
9.2 The parties hereto indemnify and agree to hold each other harmless
from, against and in respect of (and shall on demand reimburse the other for)
any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs and reasonable expenses (including, without limitation,
reasonable legal fees and expenses) and any loss, liability or damage suffered
or incurred by one party (an "Indemnified Party") by reason of any untrue
representation, breach of warranty or non-fulfillment of any covenant or
agreement by the other party (an "Indemnifying Party") contained herein or in
any certificate, document or instrument delivered to the other party pursuant
hereto or in connection herewith.
9.3 The Seller shall, to the fullest extent permitted under applicable
law, indemnify and hold harmless, each present, former and future director,
officer or employee of the Company (collectively, the "Company Indemnified
Parties") against any costs or expenses (including reasonable legal fees),
judgments, fines, losses, claims, damages, liabilities and amounts paid in
settlement, in connection with any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative or
investigative) commenced, brought, conducted, or heard by or before, or
otherwise involving, any governmental authority whether by a third party, the
Company or otherwise (a "Proceeding") (x) arising out of or pertaining to the
transactions contemplated by this Agreement or (y) otherwise with respect to any
acts or omissions occurring at or prior to the Closing Date ("Damages"), to the
same extent as provided in the Company's Organizational Documents or any
applicable contract or agreement as in effect on the date hereof, in each case
13
for the Survival Period. In the event of any such Proceeding (whether arising
before or after the Closing Date), (i) the Seller shall pay the reasonable fees
and expenses of such counsel, promptly after statements therefor are received,
provided that the Company Indemnified Parties shall be required to reimburse the
Seller for such payments in the circumstances and to the extent required by the
Company's organizational documents, any applicable contract or agreement or
applicable law, and (ii) the Seller shall cooperate in the defense of any such
matter; provided, however, that the Seller shall not be liable for any
settlement effected without its written consent (which consent shall not be
unreasonably withheld); and provided, further, that, in the event that any claim
or claims for indemnification are asserted or made within the Survival Period,
all rights to indemnification in respect of any such claim or claims shall
continue until the disposition of any and all such claims. The Company
Indemnified Parties as a group may retain only one law firm to represent them in
each applicable jurisdiction with respect to any single action unless there is,
under applicable standards of professional conduct, a conflict on any
significant issue between the positions of any two or more Company Indemnified
Parties, in which case each Company Indemnified Person with respect to whom such
a conflict exists (or group of such Company Indemnified Persons who among them
have no such conflict) may retain one separate law firm in each applicable
jurisdiction.
10. General Provisions.
10.1 Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter contained herein and supersedes all prior oral or written
agreements, if any, between the parties hereto with respect to such subject
matter and, except as otherwise expressly provided herein or therein, are not
intended to confer upon any other person any rights or remedies hereunder or
thereunder. Any amendments hereto or modifications hereof must be made in
writing and executed by each of the parties hereto. Any failure by the Seller or
the Purchaser to enforce any rights hereunder shall not be deemed a waiver of
such rights.
10.2 Notices. All notices, requests, demands and other communications
given or made hereunder shall be in writing and shall be deemed to have been
duly given when delivered personally or by facsimile transmission, in either
case with receipt acknowledged, or one day after being sent by overnight courier
to the Purchaser or the Seller at their respective addresses set forth on the
signature page of this Agreement, and, in each case, to such other address as
either party shall have given to the other party by similar notice.
10.3 Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the choice of law principles
thereof.
10.4 Resolution of Disputes. Any controversy or claim arising out of
or relating to this Agreement, or the negotiation or breach thereof, shall be
brought in the State or Federal courts sitting in New York County, New York, and
the parties hereby waive any claim or defense that such forum is inconvenient or
14
otherwise improper. Each party hereby agrees that any such court shall have in
personam jurisdiction over it and consents to service of process in any matter
authorized by New York law. In the event that any action, suit or other
proceeding is brought to enforce the terms of this Agreement, the prevailing
party shall be entitled to recover from the other party or parties reasonable
attorneys' fees and disbursements.
10.5 Binding Effect; Assignment. This Agreement and the various rights
and obligations arising hereunder shall inure to the benefit of and be binding
upon the Seller, the Company and the Purchaser and their respective successors
and assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be transferred or assigned (by operation of law or
otherwise) by any of the parties hereto without the prior written consent of the
other party hereto. Any attempted transfer or assignment of any of the rights,
interests or obligations hereunder in violation of the terms hereof shall be
void and of no force or effect.
10.6 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by virtue of any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party.
10.7 Legal Representation and Financial Representation. The parties
acknowledge that they have been fully, separately and individually apprised and
advised of their legal rights and financial liabilities and responsibilities
arising out of this Agreement and each has in addition thereto made independent
inquiry and investigation with respect to all of the same. Each waives any
conflict in connection with the preparation of this Agreement and the documents
related thereto and each acknowledges that it has had the opportunity to have
this Agreement and the documents related thereto reviewed by, and to consult
with, their own separate counsel prior to executing the same
10.8 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
10.9 Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same instrument
and shall bind all parties signing such counterpart.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.
SELLER:
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx
Address of Seller:20 Xxxx Xxxxx,
Xxxxx Xxxxxxx, XX 00000
Facsimile: (___) ___________________
PURCHASER:
Comjoyful International Ltd.
By: /s/ Xxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxx Xxxx
Its: CEO
Address of Purchaser: P.O. Box 957
Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands.
Facsimile: (___) ___________________
[to be provided]
COMPANY:
CAMELOT CORPORATION
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President and CEO
Address of Company: 00 Xxxx Xxxxx,
Xxxxx Xxxxxxx, XX 00000
Facsimile: (___) ___________________
16
Schedules
[Intentionally omitted]
17
