SHARE EXCHANGE AGREEMENT
Exhibit 2.1
This Share Exchange Agreement
(“Agreement”), dated as of August 21, 2009, is made and entered into by and
among Andatee China Marine Fuel Services Corporation, a Delaware corporation
(“Andatee”), Goodwill Rich International Limited, a Hong Kong company
(“Goodwill”), and the owners of record of all of the issued and outstanding
stock of Goodwill as listed in Exhibit A (the
“Shareholders”).
RECITALS
WHEREAS, the Shareholders own
all of the issued and outstanding shares of the capital of Goodwill as set forth
opposite such Shareholder’s name in Column I on Exhibit A attached
hereto (collectively, the “Goodwill Shares”), which, in turn, is the parent of
Dalian Fusheng Consulting Co., a company organized under the laws of the
People’s Republic of China; and
WHEREAS, Andatee desires to
acquire from Shareholders, and Shareholders desire to sell to Andatee, the
Goodwill Shares in exchange for the issuance by the Company of an aggregate of
8,000,000 shares (the “Andatee Shares”) of its common stock, $0.001 par value
(the “Andatee Common Stock”) to the Shareholders and/or their designees on the
terms and conditions set forth herein (the “Exchange”); and
WHEREAS, the Board of
Directors of Andatee has adopted resolutions approving Andatee’s acquisition of
shares of Goodwill (the “Exchange”) upon the terms and conditions hereinafter
set forth in this Agreement; and
WHEREAS, it is intended that
the terms and conditions of this Agreement comply in all respects with Section
351 of the United States Internal Revenue Code (the “Code”) and the regulations
corresponding thereto, so that the Exchange shall qualify as a tax free
reorganization under the Code.
NOW, THEREFORE, in
consideration of the mutual representations, promises and agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE
1
THE
EXCHANGE
1.1 The Exchange. Upon
the terms and subject to the conditions hereof, at the Closing (as hereinafter
defined) the Shareholders will sell, convey, assign, transfer and deliver to
Andatee one or more certificates representing the Goodwill Shares, and as
consideration for the acquisition of the Goodwill Shares, Andatee will issue to
each Shareholder, in exchange for such Shareholder’s pro rata portion of the
Goodwill Shares one or more stock certificates representing the number of shares
of Andatee Common Stock set forth opposite such Shareholder’s name on Exhibit A hereto
(collectively, the “Andatee Shares”). The Andatee Shares issued shall
equal 100% of the outstanding shares of Andatee common stock at the time of
Closing.
1.2 Closing. The closing
of the Exchange (the “Closing”) shall take place on or before September 30,
2009, or on such other date as may be mutually agreed upon by the
parties. Such date is referred to herein as the “Closing
Date.” With the exception of any certificates which must be in their
original form, any copy, fax, e-mail or other reliable reproduction of the
writing or transmission required by this Agreement or any signature required
thereon may be used in lieu of an original writing or transmission or signature
for any and all purposes for which the original could be used, provided that
such copy, fax, e-mail or other reproduction is a complete reproduction of the
entire original writing or transmission or original signature, and the originals
are promptly delivered thereafter.
1.3 Taking of Necessary Action;
Further Action. If, at any time after the Closing, any
further action is necessary or desirable to carry out the purposes of this
Agreement, the Shareholders, Goodwill and/or Andatee will take all such lawful
and necessary action.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF GOODWILL
Goodwill hereby represents and warrants
to Andatee as follows:
2.1 Organization.
Goodwill has been duly incorporated, validly existing as a company in Hong Kong,
and is good standing under the laws of its jurisdiction of incorporation, and
have the requisite power to carry on its business as now conducted.
2.2 Capitalization. The
authorized capital stock of Goodwill consists of 10,000 of common stock, of
which at the Closing, 10,000 have been issued and outstanding. All of the issued
and outstanding shares of capital stock of Goodwill, as of the Closing, are duly
authorized, validly issued, fully paid, non-assessable and free of preemptive
rights. There are no voting trusts or any other agreements or
understandings with respect to the voting of Goodwill’s capital
stock. Except as set forth on Schedule 2.2, there are no agreements
purporting to restrict the transfer of the Goodwill Shares, nor any other voting
agreements, voting trusts or other arrangements restricting or affecting the
voting of the Goodwill Shares.
2.3 Certain Corporate
Matters. Goodwill is duly qualified to do business as a corporation and
is in good standing in each jurisdiction in which the ownership of its
properties, the employment of its personnel or the conduct of its business
requires it to be so qualified, except where the failure to be so qualified
would not have a material adverse effect on its financial condition, results of
operations or business. Goodwill has full corporate power and authority and all
authorizations, licenses and permits necessary to carry on the business in which
it is engaged and to own and use the properties owned and used by
it.
2.4 Authority Relative to this
Agreement. Goodwill has the requisite power and authority to
enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement
by Goodwill and the consummation by Goodwill of the transactions contemplated
hereby have been duly authorized by the Board of Directors of Goodwill and no
other actions on the part of Goodwill is necessary to authorize this Agreement
or the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Goodwill and constitutes a valid and binding
agreement of Goodwill, enforceable against Goodwill in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors’ rights generally or
by general principles of equity.
2.5 Consents and Approvals; No
Violations. Except for applicable requirements of federal
securities laws and state securities or blue-sky laws, no filing with, and no
permit, authorization, consent or approval of, any third party, public body or
authority is necessary for the consummation by Goodwill of the transactions
contemplated by this Agreement. Neither the execution and delivery of
this Agreement by Goodwill nor the consummation by Goodwill of the transactions
contemplated hereby, nor compliance by Goodwill with any of the provisions
hereof, will (a) conflict with or result in any breach of any provisions of
Goodwill’s charter or any other organizational documents, (b) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, agreement or other instrument or
obligation to which Goodwill or any Subsidiary, if any, (as hereinafter
defined) is a party or by which they any of their respective
properties or assets may be bound or (c) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Goodwill or any Subsidiary, or
any of their respective properties or assets, except in the case of clauses (b)
and (c) for violations, breaches or defaults which are not in the aggregate
material to Goodwill or any Subsidiary taken as a whole. For purposes
of this Agreement the term “material” shall mean $1,000 or more
greater.
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2.6 Books and Records.
The books and records of Goodwill delivered to Andatee prior to the Closing
fully and fairly reflect the transactions to which Goodwill is a party or by
which it or its properties are bound
2.7 Litigation. Except
as set forth on Schedule 2.7, neither Goodwill nor any of their Subsidiaries, if
any, are subject to any judgment or order of any court or quasi-judicial or
administrative agency of any jurisdiction, domestic or foreign, nor is there any
charge, complaint, lawsuit or governmental investigation pending against
Goodwill. Neither Goodwill nor any of its Subsidiaries is a plaintiff in any
action, domestic or foreign, judicial or administrative. There are no existing
actions, suits, proceedings against or investigations of Goodwill nor any of
their subsidiaries, and neither company knows of no basis for such actions,
suits, proceedings or investigations. There are no unsatisfied judgments,
orders, decrees or stipulations affecting either Goodwill or any of their
subsidiaries or to which Goodwill or any of their subsidiaries is a
party.
2.8 Legal Compliance. To
the best knowledge of Goodwill, after due investigation, no claim has been filed
against Goodwill alleging a violation of any applicable laws and regulations of
foreign, federal, state and local governments and all agencies thereof. Goodwill
holds all of the material permits, licenses, certificates or other
authorizations of foreign, federal, state or local governmental agencies
required for the conduct of their respective businesses as presently
conducted.
2.9 Contracts. Goodwill
will have delivered to Andatee prior to the Closing copies of each and every
material agreements of Goodwill. All of the foregoing are referred to
as the “Contracts.” The copies of each of the Contracts delivered are
accurate and complete. Each Contract is in full force and effect and
constitutes a legal, valid and binding obligation of, and is legally enforceable
against, the respective parties thereto. There is no material default with
respect to any such contract which will give rise to liability in respect
thereof on the part of Goodwill or the other parties thereto. No notice of
default or similar notice has been given or received by Goodwill under any of
such contracts.
2.10 Disclosure. The
representations and warranties and statements of fact made by Goodwill in this
Agreement are, as applicable, accurate, correct and complete, and will remain so
at the time of Closing, and do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements and information contained herein not false or
misleading.
2.11 Outstanding
Obligations. There are no outstanding obligations of Goodwill
or its Subsidiaries to repurchase, redeem or otherwise acquire any of their
respective shares, and no party has the right to acquire any shares of Goodwill
except for the shareholders identified in Exhibit
A.
2.12 Material
Events. Except as set forth on Schedule 2.12, no material
event exists with respect to Goodwill or its Subsidiaries or their respective
businesses, properties, operations prospect, condition (financial or otherwise),
which has not been disclosed to in writing as of the date of this
Agreement.
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2.13 Indebtedness. Schedule
2.13 sets forth as of a recent date all outstanding secured and unsecured
Indebtedness of Goodwill or any subsidiary, or for which Goodwill or any
subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
shall mean (a) any liabilities for borrowed money or amounts owed in excess of
$1,000 (other than trade accounts payable incurred in the ordinary course of
business), (b) all guaranties, endorsements and other contingent obligations in
respect of Indebtedness of others, whether or not the same are or should be
reflected in Goodwill’s balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (c) the present value of
any lease payments in excess of $5,000 due under leases. Except as set forth in
Schedule 2.13, neither Goodwill nor any Subsidiary is in default with respect to
any Indebtedness.
2.14 Property. Goodwill
and each Subsidiary has the right to use all of its real property and the
personal property reflected in the financial statements, free and clear of any
mortgages, pledges, charges, liens, security interests or other encumbrances,
except to the extent that such mortgages, pledges, charges, liens, security
interests or other encumbrances, individually or in the aggregate, do not cause
a Material Adverse Effect (as defined below). All said leases of
Goodwill and each of its Subsidiaries are valid and subsisting and in full force
and effect.
2.15 Regulations. Except
as set forth on Schedule 2.15, the business of Goodwill and its Subsidiaries has
been and is presently being conducted in accordance with all applicable
governmental laws, rules, regulations and ordinances. Goodwill and each of its
Subsidiaries have all permits, licenses, consents and the authorizations and
approvals in its country required in the governmental regulations necessary for
the conduct of its business as now being conducted by it.
2.16 Environmental
Compliance. Except as set forth on Schedule 2.16,
Goodwill and each of its Subsidiaries are in material compliance with
applicable environmental requirements in the operation of their respective
business, except to the extent that any non-compliance, individually or in the
aggregate, does not cause a Material Adverse Effect.
2.17 Adverse
Interest. No current officer, director, affiliate or person
known to Goodwill to be the record or beneficial owner in excess of 5% of
Goodwill’s common stock, respectively, or any person known to be an associate of
any of the foregoing is a party adverse to Goodwill or has a material interest
adverse to Goodwill in any material pending legal proceeding.
2.18 Investments. Except
as set forth in Schedule 2.18, Goodwill does not own any capital stock, has any
interest of any kind nor has any agreement or commitment to purchase any
interest, whatsoever in any corporation, partnership, or other form of business
organization (any such organization is referred to as a “Subsidiary”). There are
no outstanding securities convertible into or exchangeable for the capital stock
of or other equity interests in any Subsidiary and no outstanding options,
rights, subscriptions, calls commitments, warrants or rights of any character
for Goodwill or any Subsidiary or any other person or entity to purchase,
subscribe for or to otherwise acquire any shares of such stock or other
securities of any Subsidiary. There are no outstanding agreements affecting or
relating to the voting, issuance, purchase, redemption, repurchase or transfer
of any capital stock of or other equity interests in any
Subsidiary.
2.19 Material Adverse
Effect. For the purposes of Goodwill of this Agreement,
"Material Adverse Effect" means any adverse effect on the business, operations,
properties, prospects, or financial condition of either Goodwill or either of
their Subsidiaries (if any) and/or on any condition, circumstance, or situation
that could result in litigation, claims, disputes or property loss in excess of
US$1,000 in the future, or that would prohibit or otherwise materially interfere
with the ability of any other party to this Agreement to perform any of its
obligations under this Agreement in any material respect.
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ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders hereby represent and
warrant to Andatee as follows:
3.1 Ownership of the Goodwill
Shares. Each Shareholder owns, beneficially and of record,
good and marketable title to the Goodwill Shares set forth opposite such
Shareholder’s name in Exhibit A hereto,
free and clear of all security interests, liens, adverse claims, encumbrances,
equities, proxies, options or shareholders’ agreements, whether written or oral.
Each Shareholder represents that such person has no right or claims whatsoever
to any shares of capital stock, other than shares listed across such Shareholder
on Exhibit A
and does not have any options, warrants or any other instruments entitling such
Shareholder to exercise to purchase or convert into shares of capital
stock. The Shareholders have full right, power and authority to sell,
transfer and deliver the Goodwill Shares, and at the Closing, the Shareholders
will convey to Andatee good and marketable title to the Goodwill Shares, free
and clear of any security interests, liens, adverse claims, encumbrances,
equities, proxies, options, shareholders’ agreements or
restrictions.
3.2 Due Authorization.
Each of the Shareholders 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 each
of the Shareholders, enforceable against such Shareholders 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.
3.3 Purchase for
Investment.
(a) Each
Shareholder is acquiring the Andatee 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 each Shareholder has no
present intention of selling, granting any participation in, or otherwise
distributing the same. Each Shareholder further represents that, except for the
Loan Agreements which subsequent to the Closing apply to the Andatee Shares
acquired by the Shareholders, he, she or 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
Andatee Shares.
(b) Each
Shareholder understands that the Andatee Shares are not registered under the Act
on the ground that the sale and the issuance of securities hereunder is exempt
from registration under the Securities Act of 1933, as amended, pursuant to
Section 4(2) thereof, and that Andatee’s reliance on such exemption is
predicated on the each Shareholder’s representations set forth
herein.
3.4 Investment
Experience. Each Shareholder acknowledges that he, she or it can bear the
economic risk of his, her or its investment, and has such knowledge and
experience in financial and business matters that he, she or it is capable of
evaluating the merits and risks of the investment in the Andatee
Shares.
3.5 Information. Each
Shareholder has carefully reviewed such information as such he, she or it deemed
necessary to evaluate an investment in Andatee Shares. To the full satisfaction
of each Shareholder, he, she or it has been furnished all materials that he, she
or it has requested relating to Andatee and the issuance of Andatee Shares
hereunder, and each Shareholder has been afforded the opportunity to ask
questions of representatives of Andatee to obtain any information necessary to
verify the accuracy of any representations or information made or given to him,
her or it. Notwithstanding the foregoing, nothing herein shall derogate from or
otherwise modify the representations and warranties of Andatee set forth in this
Agreement, on which the Shareholders have relied in making an exchange of the
Goodwill Shares for Andatee Shares.
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3.6 Restricted
Securities. Each Shareholder understands that Andatee Shares may not be
sold, transferred, or otherwise disposed of without registration under the Act
or an exemption there from, and that in the absence of an effective registration
statement covering Andatee Shares or any available exemption from registration
under the Act, Andatee Shares must be held indefinitely. Each Shareholder is
aware that Andatee Shares may not be sold pursuant to Rule 144 promulgated under
the 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 Andatee.
3.7 Exempt Issuance. Each
of the Shareholders acknowledges that he, she or it must assure Andatee that the
offer and sale of Andatee 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. Each of the
Shareholders agrees that he meets the criteria established in one or more 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, severally but not jointly, represents and warrants to Andatee
that:
(i) The
Shareholder is not acquiring Andatee Shares as a result of, and such Shareholder
covenants that he, she or 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 Andatee 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 Andatee
Shares;
(ii) The Shareholder is not
acquiring Andatee Shares for the account or benefit of, directly or indirectly,
any U.S. Person;
(iii) Each Shareholder is
organized under the laws of jurisdiction as set forth on the Signature Page to
this Agreement;
(iv) the offer and the sale
of Andatee Shares to such Shareholder as contemplated in this Agreement complies
with or is exempt from the applicable securities legislation of 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 Andatee
Shares,
(vi) and the Shareholder
covenants with Company that:
(1) offers and sales
of any of Andatee Shares prior to the expiration of a period of one year after
the date of original issuance of Andatee Shares (the one year 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
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(2) The Shareholder
will not engage in hedging transactions with respect to Andatee Shares until
after the expiration of the Distribution Compliance Period.
3.8 Conflict of Interest.
Each Shareholder acknowledges that he, she or it is aware and understands the
facts and circumstances of the conflicts of interest that may, individually and
in the aggregate, create a conflict of interest. Each 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 he, she or it has carefully read this Agreement,
that it is consistent with the terms previously negotiated by the parties, and
understands that he, she or it is free at any time to obtain independent counsel
for further guidance.
3.9 Legend. Each
Shareholder acknowledges that the certificate(s) representing such Shareholder’s
pro rata portion of the Andatee Shares shall each conspicuously set forth on the
face or back thereof a legend in substantially the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
3.10 Independent Nature of
Shareholders. Each Shareholder is acquiring the Andatee Shares
for his/her own account (and not for the account of others) for investment and
not with a view to the distribution therefor.
ARTICLE
4
INDEMNIFICATION
4.1 Andatee
Indemnification. For a period of seven years after the
Closing, Goodwill and the Shareholders, severally and jointly, agree to
indemnify Andatee and each of its officers, agents, lawyers and directors
against any loss, liability, claim, damage or expense (including, but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever) (each an “Indemnified Party”) to which it
or they may become subject arising out of or based on either (i) any breach of
or inaccuracy in any of the representations and warranties or covenants or
conditions made by Goodwill and/or the Shareholders in this Agreement; or (ii)
any and all liabilities arising out of or in connection with: (A) any of the
assets of Goodwill or any Subsidiary prior to the Closing; or (B) the operations
of Goodwill prior to the Closing, except to the extent that such breach or
liability does not result in a Material Adverse Effect.
4.2 Indemnification
Procedures. If any action shall be brought against any
Indemnified Party in respect of which indemnity may be sought pursuant to this
Agreement, such Indemnified Party shall promptly notify the Indemnifying Party
in writing, and the Indemnifying Party shall have the right to assume the
defense thereof with counsel of its own choosing. Any Indemnified
Party shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party except to the extent that the
employment thereof has been specifically authorized by the Indemnifying Party in
writing, the Indemnifying Party has failed after a reasonable period of time to
assume such defense and to employ counsel or in such action there is, in the
reasonable opinion of such separate counsel, a material conflict on any material
issue between the position of the Indemnifying Party and the position of such
Indemnified Party. The Indemnifying Party will not be liable to any
Indemnified Party under this Article 4 for any settlement by an Indemnified
Party effected without the Indemnifying Party’s prior written consent, which
shall not be unreasonably withheld or delayed; or to the extent, but only to the
extent that a loss, claim, damage or liability is attributable to any
Indemnified Party’s indemnification pursuant to this Article 4.
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ARTICLE
5
COVENANTS
AND AGREEMENTS OF THE PARTIES EFFECTIVE PRIOR TO CLOSING
5.1 Corporate Examinations and
Investigations. Prior to the Closing, each party shall be
entitled, through its employees and representatives, to make such investigations
and examinations of the books, records and financial condition as each party may
request. In order that each party may have the full opportunity to do
so, Goodwill, Andatee and the Shareholders shall furnish each party and its
representatives during such period with all such information concerning the
affairs of Goodwill or Andatee or any Subsidiary as each party or its
representatives may reasonably request and cause Goodwill or Andatee and their
respective officers, employees, consultants, agents, accountants and attorneys
to cooperate fully with each party’s representatives in connection with such
review and examination and to make full disclosure of all information and
documents requested by each party and/or its representatives. Any
such investigations and examinations shall be conducted at reasonable times and
under reasonable circumstances, it being agreed that any examination of original
documents will be at each party’s premises, with copies thereof to be provided
to each party and/or its representatives upon request.
5.2 Cooperation;
Consents. Prior to the Closing, each party shall cooperate
with the other parties to the end that the parties shall (i) in a timely manner
make all necessary filings with, and conduct negotiations with, all authorities
and other persons the consent or approval of which, or the license or permit
from which is required for the consummation of the Exchange and (ii) provide to
each other party such information as the other party may reasonably request in
order to enable it to prepare such filings and to conduct such
negotiations.
5.3 Conduct of
Business. Subject to the provisions hereof, from the date
hereof through the Closing, each party hereto shall (i) conduct its business in
the ordinary course and in such a manner so that the representations and
warranties contained herein shall continue to be true and correct in all
material respects as of the Closing as if made at and as of the Closing and (ii)
not enter into any material transactions or incur any material liability not
required or specifically contemplated hereby, without first obtaining the
written consent of Goodwill and the holders of a majority of voting stock of
Goodwill on the one hand and Andatee and the holders of a majority of voting
stock of Andatee common stock on the other hand. Without the prior
written consent of Goodwill, the Shareholders, or the Shareholders, except as
required or specifically contemplated hereby, each party shall not undertake or
fail to undertake any action if such action or failure would render any of said
warranties and representations untrue in any material respect as of the
Closing.
5.4 Litigation. From
the date hereof through the Closing, each party hereto shall promptly notify the
representative of the other parties of any lawsuits, claims, proceedings or
investigations which after the date hereof are threatened or commenced against
such party or any of its affiliates or any officer, director, employee,
consultant, agent or shareholder thereof, in their capacities as such, which, if
decided adversely, could reasonably be expected to have a material adverse
effect upon the condition (financial or otherwise), assets, liabilities,
business, operations or prospects of such party or any of its
subsidiaries.
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5.5 Notice of
Default. From the date hereof through the Closing, each party
hereto shall give to the representative of the other parties prompt written
notice of the occurrence or existence of any event, condition or circumstance
occurring which would constitute a violation or breach of this Agreement by such
party or which would render inaccurate in any material respect any of such
party’s representations or warranties herein.
5.6 Confidentiality; Access to
Information. Any confidentiality agreement or letter of intent
previously executed by the parties shall be superseded in its entirety by the
provisions of this Agreement. Each party agrees to maintain in
confidence any non-public information received from the other party, and to use
such non-public information only for purposes of consummating the transactions
contemplated by this Agreement. Such confidentiality obligations will not apply
to (i) information which was known to the one party or their respective agents
prior to receipt from the other party; (ii) information which is or becomes
generally known; (iii) information acquired by a party or their respective
agents from a third party who was not bound to an obligation of confidentiality;
and (iv) disclosure required by law. In the event this
Agreement is terminated as provided in Article 7 hereof, each party will return
or cause to be returned to the other all documents and other material obtained
from the other in connection with the Transaction contemplated
hereby.
5.7 Public
Disclosure. Except to the extent previously disclosed or to
the extent the parties believe that they are required by applicable law or
regulation to make disclosure, prior to Closing, no party shall issue any
statement or communication to the public regarding the transaction contemplated
herein without the consent of the other party, which consent shall not be
unreasonably withheld. To the extent a party hereto believes it is
required by law or regulation to make disclosure regarding the Transaction, it
shall, if possible, immediately notify the other party prior to such
disclosure.
5.8 Assistance with Post-Closing
SEC Reports and Inquiries. Upon the reasonable request of
Goodwill, after the Closing Date, each Shareholder shall use its/his reasonable
best efforts to provide such information available to it, including
information, filings, reports, financial statements or other circumstances of
Andatee occurring, reported or filed prior to the Closing, as may be necessary
or required by Andatee for the preparation of the post-Closing Date filings
and/or reports that Andatee is or will be required to file with the SEC to
comply with the U.S. securities laws or to address and resolve matters as may
relate to the period prior to the Closing and any SEC comments relating thereto
or any SEC inquiry thereof.
5.9 Transfers. Except
for the shares listed in Exhibit A, none of
Andatee and the Shareholders will sell, transfer, assign, hypothecate, lien, or
otherwise dispose or encumber the Shares owned by them.
ARTICLE
6
CONDITIONS
TO CLOSING
6.1 Conditions to Obligations of
Goodwill and the Shareholders. The obligations of Goodwill and
the Shareholders under this Agreement shall be subject to each of the following
conditions:
(a) Closing
Deliveries. At the Closing, Andatee shall have delivered or
caused to be delivered to Goodwill and the Shareholders the
following:
(i) resolutions
duly adopted by the Board of Directors of Andatee authorizing and approving the
Exchange and the execution, delivery and performance of this
Agreement;
(ii) a
certificate of good standing for Andatee and each Subsidiary from their
respective jurisdictions of incorporation, dated not earlier than 5 days prior
to the Closing Date;
9
(iii) stock
certificates representing the Andatee Shares to be delivered pursuant to this
Agreement registered with the names set forth in Exhibit
A;
(iv) this
Agreement duly executed by Andatee; and
(v) a
certificate executed by an officer of Goodwill, certifying the satisfaction of
Sections 6.1(b);
(vi) such
other documents as Goodwill and/or the Shareholders may reasonably request in
connection with the transactions contemplated hereby.
(b) Representations and
Warranties to be True. The representations and
warranties of Andatee herein contained shall be true in all material respects at
the Closing with the same effect as though made at such time. Andatee shall have
performed in all material respects all obligations and complied in all material
respects with all covenants and conditions required by this Agreement to be
performed or complied with by it at or prior to the Closing.
6.2 Conditions to Obligations of
Andatee. The obligations of Andatee under this Agreement shall be subject
to each of the following conditions:
(a) Closing
Deliveries. On the Closing Date, Goodwill and/or
the Shareholders shall have delivered to Andatee the following:
(i) this
Agreement duly executed by Goodwill and the Shareholders;
(ii) resolutions
duly adopted by the Board of Directors of Goodwill and each of the Shareholders
authorizing and approving the execution, delivery and performance of this
Agreement;
(iii) stock
certificates representing the Goodwill Shares to be delivered pursuant to this
Agreement duly endorsed or accompanied by duly executed stock
powers;
(iv) a
certificate of good standing for Goodwill, each of the Shareholders and any of
their subsidiaries from its respective jurisdictions of incorporation or
organization, dated not earlier than 5 days prior to the Closing
Date;
(v) a
certificate executed by an officer of Goodwill and each of the Shareholders,
certifying the satisfaction of Sections 6.2(b); and,
(vi) such
other documents as Andatee may reasonably request in connection with the
transactions contemplated hereby.
(b) Representations and
Warranties to be True. The representations and warranties of Goodwill and
the Shareholders herein contained shall be true in all material respects at the
Closing with the same effect as though made at such time. Goodwill and the
Shareholders shall have performed in all material respects all obligations and
complied in all material respects with all covenants and conditions required by
this Agreement to be performed or complied with by them at or prior to the
Closing.
(c) No Adverse
Effect. The business and operations of Goodwill, the
Shareholders and their respective Subsidiaries, if any, will not have suffered
any Material Adverse Effect.
10
(d) No
Claim Regarding Stock
Ownership or Consideration. There must not have been made or
threatened by any person, other than persons listed on Exhibit A hereto, any
claim asserting that such person (a) is the holder of, or has the right to
acquire or to obtain beneficial ownership of the Goodwill Shares or any other
stock, voting, equity, or ownership interest in, the Company.
ARTICLE
7
TERMINATION
7.1 This
Agreement may be terminated at any time prior to the Closing:
(a) by
mutual written agreement of Andatee and Goodwill;
(b) by
either Andatee or Goodwill if the Transaction shall not have been consummated
for any reason by October 30, 2009; provided, however, that the
right to terminate this Agreement under this Section 7.2(b) shall not be
available to any party whose action or failure to act has been a principal cause
of or resulted in the failure of the Transaction to occur on or before such date
and such action or failure to act constitutes a breach of this
Agreement;
(c) by
either Andatee or Goodwill if a governmental entity shall have issued an order,
decree or ruling or taken any other action, in any case having the effect of
permanently restraining, enjoining or otherwise prohibiting the Transaction,
which order, decree, ruling or other action is final and
nonappealable;
(d) by
Goodwill, upon a material breach of any representation, warranty, covenant or
agreement on the part of Andatee set forth in this Agreement, or if any
representation or warranty of Andatee shall have become materially untrue, in
either case such that the conditions set forth in Section 6.1 would not be
satisfied as of the time of such breach or as of the time such representation or
warranty shall have become untrue, provided, that if such inaccuracy in
Andatee’s representations and warranties or breach by Andatee is curable by
Andatee, then Goodwill may not terminate this Agreement under this Section
7.2(d) unless Andatee does not cure such breach within thirty (30) days after
delivery of written notice from Goodwill to Andatee of such breach, provided
Andatee continues to exercise commercially reasonable efforts to cure such
breach (it being understood that Goodwill may not terminate this Agreement
pursuant to this Section 7.2(d) if it shall have materially breached this
Agreement or if such breach by Andatee is cured during such thirty (30)-day
period); or
(e) by
Andatee, upon a material breach of any representation, warranty, covenant or
agreement on the part of Goodwill or the Shareholders set forth in this
Agreement, or if any representation or warranty of Goodwill or the Shareholders
shall have become materially untrue, in either case such that the conditions set
forth in Section 6.2 would not be satisfied as of the time of such breach or as
of the time such representation or warranty shall have become untrue, provided,
that if such inaccuracy in Goodwill’s or the Shareholders' representations and
warranties or breach by Goodwill or the Shareholders is curable by Goodwill or
the Shareholders, then Andatee may not terminate this Agreement under this
Section 7.2(e) unless Goodwill or the Shareholders do not cure such breach
within thirty (30) days after delivery of written notice from Andatee to
Goodwill and/or the Shareholders of such breach, provided Goodwill and the
Shareholders continue to exercise commercially reasonable efforts to cure such
breach (it being understood that Andatee may not terminate this Agreement
pursuant to this Section 7.2(e) if it shall have materially breached this
Agreement or if such breach by Goodwill or the Shareholders is cured during such
thirty (30)-day period).
7.3 Notice of Termination;
Effect of Termination. Any termination of this Agreement under
Section 7.2 above will be effective immediately upon (or, if the termination is
pursuant to Section 7.2(d) or Section 7.2(e) and the proviso therein is
applicable, after ten (10) day provided referenced therein) the delivery of
written notice of the terminating party to the other parties
hereto. In the event of the termination of this Agreement as provided
in Section 7.2, this Agreement shall be of no further force or effect and the
Transaction shall be abandoned, except as set forth in this Section 7.2,
Section7.3 and Article 8 (General Provisions), each of which shall survive the
termination of this Agreement.
11
7.4 Expenses. If
this Transaction does not close or is terminated, each party to this Agreement
will pay its respective costs and expenses in connection with the negotiation,
preparation and the Closing of this Agreement.
ARTICLE
8
GENERAL
PROVISIONS
8.1 Notices. Any notice,
demand, request, waiver or other communication required or permitted to be given
hereunder shall be in writing and shall be effective (a) upon hand delivery by
telex (with correct answer back received), telecopy, e-mail or facsimile at the
address or number designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second
business day following the date of mailing by express courier service, fully
prepaid, addressed to such address, or upon actual receipt of such mailing,
whichever shall first occur at addresses set forth on the signature page hereof
(or at such other address for a party as shall be specified by like
notice).
8.2 Interpretation. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
References to Sections and Articles refer to sections and articles of this
Agreement unless otherwise stated.
8.3 Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify this
Agreement to preserve each party’s anticipated benefits under this
Agreement.
8.4 Miscellaneous. This
Agreement (together with all other documents and instruments referred to
herein): (a) constitutes the entire agreement and supersedes all other prior
agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof; (b) except as expressly set forth herein,
is not intended to confer upon any other person any rights or remedies hereunder
and (c) shall not be assigned by operation of law or otherwise, except as may be
mutually agreed upon by the parties hereto.
8.5 Governing Law; Venue.
All questions relating to the validity, construction and interpretation of this
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to the choice-of-law rules of this or any other
jurisdiction to the contrary. THE PARTIES HERETO AGREE THAT VENUE IN
ANY AND ALL ACTIONS AND PROCEEDINGS RELATED TO THE SUBJECT MATTER OF THIS
AGREEMENT SHALL BE IN THE STATE AND FEDERAL COURTS IN THE STATE OF
DELAWARE, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION FOR SUCH
PURPOSE, AND THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION
OF SUCH COURTS AND IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING. SERVICE OF PROCESS MAY
BE MADE IN ANY MANNER RECOGNIZED BY SUCH COURTS..
12
8.6 Counterparts and Facsimile
Signatures. This Agreement may be executed in two or more counterparts,
which together shall constitute a single agreement. This Agreement
and any documents relating to it may be executed and transmitted to any other
party by facsimile, which facsimile shall be deemed to be, and utilized in all
respects as, an original, wet-inked document.
8.7 Amendment. This
Agreement may be amended, modified or supplemented only by an instrument in
writing executed by Goodwill, Andatee, and holders of a majority of the
Shareholders; provided that, the consent of any Goodwill or Andatee shareholder
that is a party to this Agreement shall be required if the amendment or
modification would disproportionately affect such shareholder (other than by
virtue of their ownership of Goodwill or Andatee shares, as
applicable).
8.8 Parties In Interest: No
Third Party Beneficiaries. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective heirs, legal representatives, successors and assigns of the
parties hereto. This Agreement shall not be deemed to confer upon any person not
a party hereto any rights or remedies hereunder.
8.9 Waiver. No waiver by
any party of any default or breach by another party of any representation,
warranty, covenant or condition contained in this Agreement shall be deemed to
be a waiver of any subsequent default or breach by such party of the same or any
other representation, warranty, covenant or condition. No act, delay, omission
or course of dealing on the part of any party in exercising any right, power or
remedy under this Agreement or at law or in equity shall operate as a waiver
thereof or otherwise prejudice any of such party’s rights, powers and remedies.
All remedies, whether at law or in equity, shall be cumulative and the election
of any one or more shall not constitute a waiver of the right to pursue other
available remedies.
8.10 Expenses. At
or prior to the Closing, the parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
[SIGNATURES
FOLLOW]
13
IN WITNESS WHEREOF, the parties have
executed this Share Exchange Agreement as of the date first written
above.
Andatee
China Marine Fuel Services Company
a
Delaware corporation
| By: |
/s/
An Fengbin
|
|
Date:
August 21, 2009
|
||
| Name: |
An
Fengbin
|
|
|||
| Title: |
Chief
Executive Officer
|
|
|||
| Address: | Xxxx X, Xx. 00 Xxxx Xxxxxx Xxxx, Xxxx X, Xxxxxx Xxxxxxxx Dalian, PRC | ||||
Goodwill
Rich International Limited
a Hong Kong
company
| By: |
/s/
Xxx XxxXxx
|
|
Date:
August 21, 2009
|
||
| Name: |
Xxx
XxxXxx
|
|
|||
| Title: |
Director
|
|
|||
| Address: | Mill Mall, Suite 6, Wickhams Cay 1, XX Xxx 0000, Xxxx Xxxx, Xxxxxxx, XXX | ||||
00
Signature
Pages of the Shareholders
Shining
Joy Group Limited
a
British Virgin Islands company
| By: |
/s/
Wang Xiaijun
|
|
Date:
August 21, 2009
|
||
| Name: |
Wang
Xiaijun
|
|
|||
| Title: |
Director
|
|
|||
| Address: | Mill Mall, Suite 6, Wickhams Cay 1, PO Box 3085, Road Town, Tortela, BVI | ||||
Star
Blessing Enterprises Limited
a
British Virgin Islands company
| By: |
/s/
Xxx XxxXxx
|
|
Date:
August 21, 2009
|
||
| Name: |
Xxx
XxxXxx
|
|
|||
| Title: |
Director
|
|
|||
| Address: | Mill Mall, Suite 6, Wickhams Cay 1, XX Xxx 0000, Xxxx Xxxx, Xxxxxxx, XXX | ||||
Growing
Sincere Limited
a
British Virgin Islands company
| By: |
/s/
Xx Xxxxxxx
|
|
Date:
August 21, 2009
|
||
| Name: |
Xx
Xxxxxxx
|
|
|||
| Title: |
Director
|
|
|||
| Address: | Mill Mall, Suite 6, Wickhams Cay 1, XX Xxx 0000, Xxxx Xxxx, Xxxxxxx, XXX | ||||
| Xx: |
/s/
Xxxx Xxxxxx
|
|
Date:
August 21, 2009
|
||
| Name: |
Xxxx
Xxxxxx
|
|
|||
| Title: |
Director
|
|
|||
| Address: | Mill Mall, Suite 6, Wickhams Cay 1, XX Xxx 0000, Xxxx Xxxx, Xxxxxxx, XXX | ||||
00
Exhibit
A
List
of the Shareholders of Goodwill Rich International Limited (GRI)
|
Jurisdiction
of Incorporation
|
Percentage
of Ownership of GRI before the Share Exchage
|
Number
of Shares of the Andatee common stock after the Share
Exchange
|
||||
|
Star
Blessing Enterprises Limited
|
British
Virgin Islands
|
89.04%
|
7,123,200
|
|||
|
Growing
Sincere Limited
|
British
Virgin Islands
|
4%
|
320,000
|
|||
|
White
Bright Limited
|
British
Virgin Islands
|
3%
|
240,000
|
|||
|
Shining
Joy Group Limited
|
British
Virgin Islands
|
3.96%
|
316,800
|
|||
|
Total
|
100%
|
8,000,000
|
16
Schedule
2.7
In the
contract lawsuit of Dalian Xingyuan Marine Bunker Co., Ltd (the “Xingyuan” and
plaintiff, a subsidiary of Goodwill) against Dalian Dafangshen Ocean Fishery
Co., Ltd. (the “Dafangshen”), Xingyuan won the lawsuit and Dafangshen was judged
to pay Xingyuan the debt of RMB 1,431,487.50 and the penalty of RMB 400,000. The
judgement is under execution dated as of the date hereof.
In the
contract lawsuit of Xxxxxxx Xxxxxx Co., Ltd. (the “Fuchang”) against Xingyuan
(the defendant), the trial of the first instance was turned down and was ordered
to re-trial by the appeals court. The trial of the second instance was begun in
April, 2009 and was not completed dated as of the date hereof.
17
