SHARE EXCHANGE AGREEMENT
Exhibit
2.2
THIS
SHARE EXCHANGE AGREEMENT, dated as of November 6, 2007, is by and among
Eastern Concept Corporate Consulting (Shenzhen) Limited, a company organized
and
existing under the laws of the People’s Republic of China (the “Company”);
Xinghao LI, a director and a 51% beneficial owner of Foshan Wanzhi Electron
S&T Company Limited (“Li”); and Xxx XXXX, a director and a 49% beneficial
owner of Foshan Wanzhi Electron S&T Company Limited (“Chen”) (collectively,
the “Sellers”) with reference to the following:
W
I T N E S S E T H:
A.The
Sellers own 100 % of Foshan Wanzhi Electron S&T Company Limited (“Foshan
Wanzhi”), a company organized and existing under the laws of the People’s
Republic of China with registered capital of RMB10,000,000.
B.The
Company is a wholly owned subsidiary of Eastern Concept Development Ltd., a
company organized and existing under the laws of the Hong Kong SAR of the
People’s Republic of China.
C.The
Company desires to acquire from the Sellers, and the Sellers desire to sell
to
the Company, all of the Wanzhi Shares for a total consideration in cash of
RMB10,000,000 (or US$1,342,280), on the terms and conditions set forth
below.
NOW,
THEREFORE, in consideration of the premises and of the mutual
representations, warranties and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE
I
TRANSFER
OF SHARES
1.1 Transfer
of Shares. Subject to the terms and conditions of this Agreement,
on the Closing Date:
(a) the
Company shall pay by means of telegraphic transfer to the Sellers RMB10,000,000
in cash to the designated bank account of the Sellers; and
(b) the
Sellers agree to transfer 100% of the ownership of Foshan Wanzhi to the
Company.
1.2 Time
and Place of Closing. The closing of the transactions contemplated hereby
(the “Closing”) shall take place at the offices of Foshan Wanzhi at Fenggang
Road, Lishui Town, Nanhai, Guangdong Province, the PRC 528244 on November 10,
2007 (the “Closing Date”) at 10:00 A.M., Beijing time, or at such other place as
the Company and the Sellers may agree.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDERS
The
Company represents and warrants to the Sellers as follows:
2.1 Due
Organization and Qualification; Due Authorization. The Company has all
requisite corporate power and authority to execute and deliver this Agreement,
and to consummate the transactions contemplated hereby. The Company
has taken all corporate action necessary for the execution and delivery of
this
Agreement and the consummation of the transactions contemplated hereby, and
this
Agreement constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its respective 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.
2.2 No
Conflicts or Defaults. The execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated hereby do not
and
shall not (a) contravene the Articles of Incorporation or Bylaws of the Company
or (b) with or without the giving of notice or the passage of time (i) violate,
conflict with, or result in a breach of, or a default or loss of rights under,
any material covenant, agreement, mortgage, indenture, lease, instrument, permit
or license to which the Company is a party or by which the Company is bound,
or
any judgment, order or decree, or any law, rule or regulation to which the
Company is subject, (ii) terminate or give any party the right to terminate,
amend, abandon or refuse to perform, any material agreement, arrangement or
commitment to which the Company is a party or by which the Company’s assets are
bound, or (iii) accelerate or modify, or give any party the right to accelerate
or modify, the time within which, or the terms under which, the Company is
to
perform any duties or obligations or receive any rights or benefits under any
material agreement, arrangement or commitment to which it is a
party.
-
1
-
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF THE SELLERS
The
Sellers represent and warrant to the Company as follows:
3.1 Title
to Shares. The Sellers have good and marketable title to the ownership of
Foshan Wanzhi and, upon consummation of the purchase contemplated herein, the
Company will acquire from the Sellers good and marketable title to the ownership
of Foshan Wanzhi free and clear of all liens and encumbrances.
3.2 Due
Authorization. The Sellers have all requisite power and authority to execute
and deliver this Agreement, and to consummate the transactions contemplated
hereby. The Sellers have taken all corporate action necessary for the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, and this Agreement constitutes the valid
and
binding obligation of the Sellers, enforceable against the Sellers in accordance
with its respective 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 No
Conflicts or Defaults. The execution and delivery of this Agreement by the
Sellers and the consummation of the transactions contemplated hereby do not
and
shall not (a) contravene the governing documents of the Sellers, or (b) with
or
without the giving of notice or the passage of time, (i) violate, conflict
with,
or result in a breach of, or a default or loss of rights under, any material
covenant, agreement, mortgage, indenture, lease, instrument, permit or license
to which the Sellers are a party or by which the Sellers or any of its assets
are bound, or any judgment, order or decree, or any law, rule or regulation
to
which the Sellers or any of its assets are subject, (ii) terminate or give
any
party the right to terminate, amend, abandon or refuse to perform, any material
agreement, arrangement or commitment to which Sellers are a party or by which
Sellers or any of its assets are bound, or (iii) accelerate or modify, or give
any party the right to accelerate or modify, the time within which, or the
terms
under which, Sellers are to perform any duties or obligations or receive any
rights or benefits under any material agreement, arrangement or commitment
to
which it is a party.
ARTICLE
IV
INDEMNIFICATION
4.1 Indemnity
of the Company. The Company agrees to defend, indemnify and hold harmless
the Sellers from and against, and to reimburse the Sellers with respect to,
all
liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, asserted against or incurred
by
the Sellers by reason of, arising out of, or in connection with any material
breach of any representation or warranty contained in this Agreement made by
the
Company or in any document or certificate delivered by the Company pursuant
to
the provisions of this Agreement or in connection with the transactions
contemplated thereby.
4.2 Indemnity
of the Sellers. The Sellers agree to defend, indemnify and hold harmless the
Company from and against, and to reimburse the Company with respect to, all
liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, asserted against or incurred
by the Sellers by reason of, arising out of, or in connection with any material
breach of any representation or warranty contained in this Agreement and made
by
the Company or in any document or certificate delivered by the Company pursuant
to the provisions of this Agreement or in connection with the transactions
contemplated thereby.
4.3 Indemnification
Procedure. A party (an “Indemnified Party”) seeking indemnification shall
give prompt notice to the other party (the “Indemnifying Party”) of any claim
for indemnification arising under this Article 4. The Indemnifying Party shall
have the right to assume and to control the defense of any such claim with
counsel reasonably acceptable to such Indemnified Party, at the Indemnifying
Party's own cost and expense, including the cost and expense of reasonable
attorneys' fees and disbursements in connection with such defense, in which
event the Indemnifying Party shall not be obligated to pay the fees and
disbursements of separate counsel for such in such action. In the
event, however, that such Indemnified Party's legal counsel shall determine
that
defenses may be available to such Indemnified Party that are different from
or
in addition to those available to the Indemnifying Party, in that there could
reasonably be expected to be a conflict of interest if such Indemnifying Party
and the Indemnified Party have common counsel in any such proceeding, or if
the
Indemnified Party has not assumed the defense of the action or proceedings,
then
such Indemnifying Party may employ separate counsel to represent or defend
such
Indemnified Party, and the Indemnifying Party shall pay the reasonable fees
and
disbursements of counsel for such Indemnified Party. No settlement of
any such claim or payment in connection with any such settlement shall be made
without the prior consent of the Indemnifying Party which consent shall not
be
unreasonably withheld.
ARTICLE
V
DELIVERIES
5.1 Items
to be delivered to the Sellers prior to or at Closing by the
Company.
(a) Bank
confirmation indicating the transfer or deposit of RMB10,000,000 in cash from
Eastern Concept Development Ltd. to the Company bank account in the PRC so
that
such amount can be utilized to acquire 100% ownership of Foshan Wanzhi from
the
Sellers;
(b) copies
of board, and if applicable, shareholder resolutions approving this
transaction;
-
2
-
(c) a
certificate, in form reasonably acceptable to the Sellers, signed by an
authorized officer of the Company dated the Closing Date, certifying that the
representations and warranties made by the Company shall be accurate in all
material respects as of the date hereof and as of the Closing Date and the
terms
and conditions of this Agreement to be performed and complied with by the
Company on or prior to the Closing Date shall have been performed and complied
with by the Company on or prior to the Closing Date;
(d) any
other document reasonably requested by Sellers that it deems necessary for
the
consummation of this transaction.
5.2 Items
to be delivered by the Sellers to the Company prior to or at Closing by the
Sellers.
(a) documents
indicating the process of transferring the ownership of Foshan Wanzhi from
the
Sellers to the Company, pending government procedural approval;
(b) copies
of board, and if applicable, shareholder resolutions approving this transaction
and authorizing the transfer of the ownership hereto;
(c) a
certificate, in form reasonably acceptable to the Company, signed by an
authorized officer of the Sellers dated the Closing Date, certifying that the
representations and warranties made by the Sellers shall be accurate in all
material respects as of the date hereof and as of the Closing Date and the
terms
and conditions of this Agreement to be performed and complied with by the
Sellers on or prior to the Closing Date shall have been performed and complied
with by the Sellers on or prior to the Closing Date; and
(d) any
other document reasonably requested by the Company that it deems necessary
for
the consummation of this transaction.
ARTICLE
VI
CONDITIONS
PRECEDENT
6.1 Conditions
Precedent to Closing. The obligations of the parties under this Agreement
shall be and are subject to fulfillment, prior to or at the Closing, of each
of
the following conditions:
(a) that
each of the representations and warranties of the parties contained herein
shall
be true and correct at the time of the Closing Date as if such representations
and warranties were made at such time; and
(b) that
the parties shall have performed or complied with all agreements, terms and
conditions required by this Agreement to be performed or complied with by them
prior to or at the time of the Closing.
6.2 Conditions
to Obligations of the Sellers. The obligations of the Sellers shall be
subject to fulfillment prior to or at the Closing, of each of the following
conditions:
(a) the
Company shall have paid all of its own costs and expenses associated with this
Agreement and the transactions contemplated herein;
(b) the
Company shall have received all of the regulatory, shareholder and other third
party consents, permits, approvals and authorizations necessary to consummate
the transactions contemplated by this Agreement;
6.3 Conditions
to Obligations of the Company. The obligations of the Company shall be
subject to fulfillment prior to or at the Closing, of each of the following
conditions:
(a) The
Sellers shall have paid all of their own costs and expenses associated with
this
Agreement and the transactions contemplated herein;
(b) The
Sellers shall have received all of the regulatory, shareholder and other third
party consents, permits, approvals and authorizations necessary to consummate
the transactions contemplated by this Agreement.
ARTICLE
VII
NO
PUBLIC
DISCLOSURE
Without
the prior written consent of the others, none of the Company or the Sellers
will, and will each cause their respective representatives not to, make any
release to the press or other public disclosure with respect to either the
fact
that discussions or negotiations have taken place concerning the transactions
contemplated by this Agreement, the existence or contents of this Agreement
or
any prior correspondence relating to this transactions contemplated by this
Agreement, except for such public disclosure as may be necessary, in the written
opinion of outside counsel (reasonably satisfactory to the other parties) for
the party proposing to make the disclosure not to be in violation of or default
under any applicable law, regulation or governmental order. If either party
proposes to make any disclosure based upon such an opinion, that party will
deliver a copy of such opinion to the other party, together with the text of
the
proposed disclosure, as far in advance of its disclosure as is practicable,
and
will in good faith consult with and consider the suggestions of the other party
concerning the nature and scope of the information it proposes to
disclose.
-
3
-
ARTICLE
VIII
TERMINATION
This
Agreement may be terminated at any time before or, at Closing, by:
(a) the
mutual agreement of the parties;
(b) any
party if:
(i) any
provision of this Agreement applicable to a party shall be materially untrue
or
fail to be accomplished;
(ii) any
legal proceeding shall have been instituted or shall be imminently threatening
to delay, restrain or prevent the consummation of this Agreement;
or
|
(iii)
|
the
conditions precedents to Closing are not
satisfied.
|
Upon
termination of this Agreement for any reason, in accordance with the terms
and
conditions set forth in this paragraph, each said party shall bear all costs
and
expenses as each party has incurred and no party shall be liable to the
other.
ARTICLE
IX
MISCELLANEOUS
9.1 Survival
of Representations, Warranties and Agreements. All representations and
warranties and statements made by a party to in this Agreement or in any
document or certificate delivered pursuant hereto shall survive the Closing
Date for so long as the applicable statute of limitations shall remain open.
Each of the parties hereto is executing and carrying out the provisions of
this
agreement in reliance upon the representations, warranties and covenants and
agreements contained in this agreement or at the closing of the transactions
herein provided for and not upon any investigation which it might have made
or
any representations, warranty, agreement, promise or information, written or
oral, made by the other party or any other person other than as specifically
set
forth herein.
9.2 Access
to Books and Records. During the course of this transaction through Closing,
each party agrees to make available for inspection all corporate books, records
and assets, and otherwise afford to each other and their respective
representatives, reasonable access to all documentation and other information
concerning the business, financial and legal conditions of each other for the
purpose of conducting a due diligence investigation thereof. The parties further
agree to keep confidential and not use for their own benefit, except in
accordance with this Agreement any information or documentation obtained in
connection with any such investigation.
9.3 Further
Assurances. If, at any time after the Closing, the parties shall consider or
be advised that any further deeds, assignments or assurances in law or that
any
other things are necessary, desirable or proper to complete the merger in
accordance with the terms of this agreement or to vest, perfect or
confirm, of record or otherwise, the title to any property or rights of the
parties hereto, the parties agree that their proper officers and directors
shall
execute and deliver all such proper deeds, assignments and assurances in law
and
do all things necessary, desirable or proper to vest, perfect or confirm title
to such property or rights and otherwise to carry out the purpose of this
Agreement, and that the proper officers and directors the
parties are fully authorized to take any and all such
action.
9.4 Notice.
All communications, notices, requests, consents or demands given or required
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered to, or received by prepaid registered or certified mail
or
recognized overnight courier addressed to, or upon receipt of a facsimile sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
If
to the
Company:
Room
2106, South Stock Building
Jianshe
Road, Luohu District,
Shenzhen
Attn:
Mr.
Xxxxx XXX
Telecopy: 852.3103.8033
If
to the
Sellers:
Foshan
Wanzhi Electron S&T Company Limited
Fenggang
Road, Lishui Town,
Nanhai,
Guangdong Province, the PRC 528244
Attn:
Mr.
Xxx XXXX
Telecopy: 852.86.757.8566.0293
-
4
-
9.5 Entire
Agreement. This Agreement, and any instruments and agreements to be executed
pursuant to this Agreement, sets forth the entire understanding of the parties
hereto with respect to its subject matter, merges and supersedes all prior
and
contemporaneous understandings with respect to its subject matter and
may not be waived or modified, in whole or in part, except by a writing signed
by each of the parties hereto. No waiver of any provision of this
Agreement in any instance shall be deemed to be a waiver of the same or any
other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver
of its rights under such provision.
9.6 Successors
and Assigns. This Agreement shall be binding upon, enforceable
against and inure to the benefit of, the parties hereto and their respective
heirs, administrators, executors, personal representatives, successors and
assigns, and nothing herein is intended to confer any right, remedy or benefit
upon any other person. This Agreement may not be assigned by any
party hereto except with the prior written consent of the other parties, which
consent shall not be unreasonably withheld.
9.7 Governing
Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the People’s Republic of China and are
applicable to agreements made and fully to be performed in such state, without
giving effect to conflicts of law principles.
9.8 Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
9.9 Construction. Headings
contained in this Agreement are for convenience only and shall not be used
in
the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. As used herein, the singular includes the plural,
and the masculine, feminine and neuter gender each includes the others where
the
context so indicates.
9.10 Severability. If
any provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, this Agreement shall be interpreted and
enforceable as if such provision were severed or limited, but only to the extent
necessary to render such provision and this Agreement enforceable.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-
5
-
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as
of
the date first set forth above.
EASTERN
CONCEPT CORPORATE CONSULTING (SHENZHEN) LIMITED
By:
/s/ Xxxxx Xxx
Name:
Xxxxx XXX
Its:
President
REPRESENTATIVE
OF THE EASTERN CONCEPT SHAREHOLDERS
By:
/s/ Xxxxx Xxx
Name:
Xxxxx XXX
(In
His
Individual Capacity)
FOSHAN
WANZHI ELECTRON S&T COMPANY LIMITED
By:
/s/ Xinghao Li
Name:
Xinghao LI
Its:
Director
By:
/s/ Xxx Xxxx
Name:
Xxx XXXX
Its: Director
Its: Director
REPRESENTATIVE
OF THE FOSHAN WANZHI SHAREHOLDERS
By: /s/
Xinghao Li
Name:
Xinghao LI
(In
His
Individual
Capacity)
By:
/s/ Xxx Xxxx
Name: Xxx XXXX
Name: Xxx XXXX
(In
His
Individual Capacity)
-
6
-
