SHARE EXCHANGE AGREEMENT
Exhibit
10.1
This
SHARE EXCHANGE AGREEMENT, dated February 13, 2009 , 2009 (“Agreement”) is
entered by and among Changda International, Ltd., a limited liability company
organized under the laws of Xxxxxxxx Islands, (“Changda”), Xxxxxxxxxxxxx.xxx,
Inc. , a Nevada corporation (“PDWK”), and the shareholders of
Changda as listed in Exhibit A to this Agreement (collectively the “Changda
Shareholders”) (PDWK, Changda and the Changda Shareholders each a “Party” and
collectively the “Parties”).
WHEREAS,
Changda Shareholders collectively own 100% of the issued and outstanding shares
of common stock of Changda (the "Changda Shares");
WHEREAS,
Changda Shareholders believe that it is in their best interests to exchange the
Changda Shares for Forty Seven Million Seven Hundred Twenty Nine Thousand Nine
Hundred Sixty Four (47,729,964) shares of common stock of PDWK, par value $
0.001 per share (“PDWK Shares”), and PDWK believes
it is in its best interests to acquire the Changda Shares in exchange for PDWK
Shares, upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS,
it is the intention of the parties that: (i) PDWK shall acquire 100% of the
Changda Shares in exchange solely for the PDWK Shares set forth herein; (ii)
said exchange of shares shall qualify as a tax-free reorganization under Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “Code”); and (iii) said exchange
shall qualify as a transaction in securities exempt from registration or
qualification under regulation D of the Securities Act of 1933, as
amended and in effect on the date of this Agreement (the “Securities Act”).
NOW,
THEREFORE, in consideration of the mutual terms, conditions and other agreements
set forth herein, the parties hereto hereby agree as follows:
ARTICLE
I
EXCHANGE
OF SHARES FOR COMMON STOCK
Section 1.1
Agreement to Exchange
Changda Shares for PDWK Shares. On the
Closing Date (as hereinafter defined) and subject to the terms and conditions
set forth in this Agreement, Changda Shareholders shall sell, assign, transfer,
convey and deliver the Changda Shares (representing 100% of the issued and
outstanding Changda Shares), to PDWK, and PDWK shall accept the Changda Shares
from the Changda Shareholders in exchange for the issuance to the Changda
Shareholders a total of Forty Seven Million Seven Hundred Twenty Nine Thousand
Nine Hundred Sixty Four (47,729,964) newly issued shares of PDWK, as
allocated and set forth opposite of the names of each of the Changda
Shareholders in Exhibit A hereto. The Parties acknowledge and agree
that each of the Changda Shareholders may have differing rates of
share exchange, and each Party hereto accepts the number of shares exchanged, as
set forth in Exhibit A hereto, as full and adequate consideration
hereunder.
Section 1.2
Capitalization. On
the Closing Date, immediately before the transactions to be consummated pursuant
to this Agreement, PDWK shall have authorized (a) 100,000,000 shares
of Common Stock, par value $ 0.001 per share, of which
8,800,000 shares shall be issued and outstanding, all of which are
duly authorized, validly issued and fully paid. PDWK’s capitalization table
immediately preceding this transaction is as set forth on Schedule
A and
PDWK’s capitalization table immediately following this transaction is as set
forth on Schedule
B.
Section 1.3
Closing. The closing
of the exchange to be made pursuant to this Agreement (“Closing”) shall take place at
10:00 a.m. E.S.T.
on the day when the conditions to closing set forth in Articles V and VI
have been satisfied or waived, or at such other time and date as the parties
hereto shall agree in writing but no later than February 13, 2009
(“Closing Date”) at the
place mutually designated by both parties. At the Closing, Changda Shareholders
shall deliver to PDWK stock certificates representing 100% of the Changda
Shares, duly endorsed in blank for transfer or accompanied by appropriate stock
powers duly executed in blank. In full consideration and exchange for the
Changda Shares, PDWK shall issue and exchange with Changda
Shareholders Forty Seven Million Seven Hundred Twenty Nine Thousand Nine
Hundred Sixty Four (47,729,964) shares of common stock of PDWK.
Section 1.4
Tax Treatment. The
exchange described herein is intended to comply with Section 368(a)(1)(B) of the
Code, and all applicable regulations thereunder. In order to ensure compliance
with said provisions, the parties agree to take whatever steps may be necessary,
including, but not limited to, the amendment of this Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF PDWK
PDWK
hereby, jointly and severally, represents, warrants and agrees as
follows:
Section 2.1
Corporate
Organization
a. PDWK
is a corporation duly organized, validly existing and in good standing under the
laws of Nevada, and has all requisite corporate power and authority to own its
properties and assets and to conduct its business and is duly qualified to do
business in good standing in each jurisdiction in which the nature of the
business conducted by PDWK or the ownership or leasing of its properties makes
such qualification and being in good standing necessary, except where the
failure to be so qualified and in good standing will not have a material adverse
effect on the business, operations, properties, assets, condition or results of
operation of PDWK (a "PDWK Material Adverse
Effect");
b. Copies
of the Articles of Incorporation and By-laws of PDWK, with all amendments
thereto to the date hereof, have been furnished to Changda and the Changda
Shareholders, and such copies are accurate and complete as of the date hereof.
The minute books of PDWK are current as required by law, contain the minutes of
all meetings of the Board of Directors and shareholders of PDWK from its date of
incorporation to the date of this Agreement, and adequately reflect all material
actions taken by the Board of Directors and shareholders of PDWK.
Section
2.2
Capitalization of
PDWK. The authorized capital stock of PDWK consists of (a)
100,000,000 shares of Common Stock, par value $0.001 per share, of
which 8,800,000 shares are issued and outstanding, all of which are
duly authorized, validly issued and fully paid. The parties agree that they have
been informed of the issuances of the PDWK Shares, and that all such issuances
of PDWK Shares pursuant to this Agreement will be in accordance with the
provisions of this Agreement. All of the PDWK Shares to be issued pursuant to
this Agreement have been duly authorized and will be validly issued, fully paid
and non-assessable and no personal liability will attach to the ownership
thereof and in each instance, have been issued in accordance with the
registration requirements of applicable securities laws or an exemption
therefrom. As of the date of this Agreement there are no outstanding options,
warrants, agreements, commitments, conversion rights, preemptive rights or other
rights to subscribe for, purchase or otherwise acquire any shares of capital
stock or any un-issued or treasury shares of capital stock of
PDWK. Immediately preceding the consummation of the transactions
contemplated by this Agreement, the capitalization table set forth on Schedule A
is accurate and complete in all material respects. The capitalization
table set forth on Schedule B is accurate and complete and reflects the
capitalization of PDWK immediately following the transactions contemplated by
this Agreement.
Section 2.3
Subsidiaries and Equity
Investments. PDWK has no subsidiaries or equity interest in any
corporation, partnership or joint venture.
Section 2.4
Authorization and Validity of
Agreements. PDWK has all corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby and upon the execution and delivery by
Changda and the Changda Shareholders and the performance of their obligations
herein, will constitute, a legal, valid and binding obligation of PDWK. The
execution and delivery of this Agreement by PDWK and the consummation by PDWK of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action of PDWK, and no other corporate proceedings on the part of PDWK
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby.
Section 2.5
No Conflict or
Violation. The execution,
delivery and performance of this Agreement by PDWK do not and will not (i)
violate or conflict with any provision of its Articles of Incorporation or
By-laws, (ii) violate any provision of law, or any order, judgment or decree of
any court or other governmental or regulatory authority, (iii) violate or result
in a breach of or constitute (with due notice or lapse of time or both) a
default under, or give to any other entity any right of termination, amendment,
acceleration or cancellation of, any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
PDWK is a party or by which it is bound or to which any of its respective
properties or assets is subject, (iv) result in the creation or imposition of
any lien, charge or encumbrance of any kind whatsoever upon any of the
properties or assets of PDWK(v) result in the cancellation, modification,
revocation or suspension of any of the licenses, franchises or permits to which
PDWK is bound.
Section 2.6
Consents and
Approvals. No consent, waiver, authorization or approval of any
governmental or regulatory authority, domestic or foreign, or of any other
person, firm or corporation, is required in connection with the execution and
delivery of this Agreement by PDWK or the performance by PDWK of its obligations
hereunder.
Section 2.7
Absence of Certain Changes
or Events. Since its inception:
a.
As of the
date of this Agreement, PDWK does not know or have reason to know of any event,
condition, circumstance or prospective development which threatens or may
threaten to have a material adverse effect on the assets, properties,
operations, prospects, net income or financial condition of PDWK;
b.
there has
not been any declaration, setting aside or payment of dividends or distributions
with respect to shares of capital stock of PDWK; and
c.
there has
not been an increase in the compensation payable or to become payable to any
director or officer of PDWK.
Section 2.8
Disclosure. This
Agreement and any certificate attached hereto or delivered in accordance with
the terms hereby by or on behalf of PDWK in connection with the transactions
contemplated by this Agreement, when taken together, do not contain any untrue
statement of a material fact or omit any material fact necessary in order to
make the statements contained herein and/or therein not misleading.
Section
2.9
Financial Statements.
The audited balance sheet of PDWK and related statements of operations,
cash flow and shareholders' equity (“PDWK Financial Statements”) fairly
present in all material respects the financial position of PDWK as of the
respective dates thereof, and the other related statements included therein
fairly present in all material respects the results of operations, changes in
shareholders' equity and cash flows of PDWK for the respective periods or as of
the respective dates set forth therein, all in conformity with generally
accepted accounting principles consistently applied during the periods involved,
except as otherwise noted therein.
Section
2.10
Absence of Changes; No
Undisclosed Liabilities. Except as disclosed in any Form 10-K and Form
10-Q, PDWK has not incurred any liability material to PDWK on a consolidated
basis, except in the ordinary course of its business, consistent with past
practices; suffered a change, or any event involving a prospective change, in
the business, assets, financial condition, or results of operations of PDWK
which has had, or is reasonably likely to have, individually or in the
aggregate, a PDWK Material Adverse Effect, (other than as a result of changes or
proposed changes in federal or state regulations of general applicability or
interpretations thereof, changes in generally accepted accounting principles,
and changes that could, under the circumstances, reasonably have been
anticipated in light of disclosures made in writing by PDWK to Changda pursuant
hereto); or subsequent to the date hereof, conducted its business and operations
other than in the ordinary course of business and consistent with past
practices. PDWK has no liability ) except for (a) liabilities set forth on the
face of the most recent balance sheet included in the PDWK Financial Statements,
and (b) liabilities which have arisen after the date of such balance sheet in
the ordinary course of business (none of which results from, arises out of,
relates to, is in the nature of, or was caused by any breach of contract, tort,
infringement, or violation of law). PDWK is not aware of any basis for any
present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against it giving rise to any liability which
individually or in the aggregate is reasonably likely to have a PDWK Material
Adverse Effect.
Section 2.11
Litigation. There is no
action, suit, proceeding or investigation pending or threatened against the
Company or any subsidiary that may affect the validity of this Agreement or the
right of PDWK to enter into this Agreement or to consummate the transactions
contemplated hereby.
Section 2.12
Securities Laws. PDWK
has complied in all material respects with applicable federal and state
securities laws, rules and regulations, including the Sarbanes Oxley Act of
2002, as such laws, rules and regulations apply to PDWK and its securities; and
all shares of capital stock of the Company have been issued in accordance with
applicable federal and state securities laws, rules and regulations. There are
no stop orders in effect with respect to any of the Company’s
securities.
Section 2.13
Tax. PDWK has paid
all taxes due to date, if any.
Section 2.14
34 Act Reports. None
of PDWK’s filings with the SEC contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein not
misleading, in light of the circumstances in which they were made.
Section
2.15
Market Makers. PDWK
has two market makers in its Common Stock (two market makers on the bid, none on
the ask).
Section 2.16
Survival. Each of the
representations and warranties set forth in this Article II shall be deemed
represented and made by PDWK at the Closing as if made at such time and shall
survive the Closing for a period terminating on the second anniversary of the
date of this Agreement.
Section 2.17
Employees. PDWK has
no employees, employee benefit plan, program or
arrangement, or employment severance or consulting
agreements. PDWK’s current officers and directors serve without
compensation, PDWK has no bonus, pension, profit-sharing or other
plans or commitments with respect to any of its officers, directors, agents, or
any other individuals or entities.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF CHANGDA AND CHANGDA SHAREHOLDERS
Section 3.1 Changda ,
represents, warrants and agrees as follows:
Corporate
Organization.
a.
Changda
is duly organized, validly existing and in good standing under the laws of the
Xxxxxxxx Islands and has all requisite corporate power and authority to own its
properties and assets and to conduct its business as now conducted and is duly
qualified to do business, is in good standing in each jurisdiction wherein the
nature of the business conducted by Changda or the ownership or leasing of its
properties makes such qualification and being in good standing necessary, except
where the failure to be so qualified and in good standing will not have a
material adverse effect on the business, operations, properties, assets,
condition or results of operation of Changda (a “Changda Material Adverse Effect”). As
of the date of this Agreement, Changda owns, directly or indirectly, One Hundred
Percent (100%) of the issued and outstanding equity or voting interests in the
following companies: Changda Fertiliser, Changda Chemical, Changda Fengtai, and
Changda Heze (collectively the “Changda Subsidiaries”). Each of the
Changda Subsidiaries are duly organized, validly existing and in good standing
under the laws of the Peoples’ Republic of China (“PRC”) and have all requisite
corporate power and authority to own their properties and assets and to conduct
their business as now conducted and are duly qualified to do business, are in
good standing in each jurisdiction wherein the nature of the business conducted
by Changda Subsidiaries or the ownership or leasing of their properties makes
such qualification and being in good standing necessary, except where the
failure to be so qualified and in good standing will not have a material adverse
effect on the business, operations, properties, assets, condition or results of
operation of Changda Subsidiaries (a "Changda Subsidiaries Material Adverse
Effect")
b.
Copies of
the Certificate of Incorporation and By-laws of Changda with all amendments
thereto to the date hereof, have been furnished to PDWK, and such copies are
accurate and complete as of the date hereof. The minute books of Changda are
current as required by law, contain the minutes of all meetings of the Board of
Directors and shareholders of Changda, and adequately reflect all material
actions taken by the Board of Directors, shareholders of Changda.
c.
Authorization and Validity
of Agreements. Changda has all corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Changda and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action and no other
corporate proceedings on the part of Changda are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. The Changda
Shareholders have approved this Agreement on behalf of Changda and no other
stockholder approvals are required to consummate the transactions contemplated
hereby. Changda Shareholders are competent to execute this Agreement, and have
the power to execute and perform this Agreement. No other proceedings on the
part of Changda or Changda Shareholders are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
d.
No Conflict or
Violation. The execution, delivery and performance of this Agreement by
Changda or Changda Shareholders does not and will not violate or conflict with
any provision of the constituent documents of Changda, and does not and will not
violate any provision of law, or any order, judgment or decree of any court or
other governmental or regulatory authority, nor violate, result in a breach of
or constitute (with due notice or lapse of time or both) a default under or give
to any other entity any right of termination, amendment, acceleration or
cancellation of any contract, lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which Changda or
Changda Shareholders is a party or by which it is bound or to which any of its
respective properties or assets is subject, nor result in the creation or
imposition of any lien, charge or encumbrance of any kind whatsoever upon any of
the properties or assets of Changda or Changda Shareholders, nor result in the
cancellation, modification, revocation or suspension of any of the licenses,
franchises, permits to which Changda or Changda Shareholders is
bound.
e.
Capitalization. The
first column of share numbers set forth on Exhibit A is a complete and accurate
representation of the capitalization of Changda before the transactions
contemplated by this Agreement.
Section 3.2 Each of the
Changda Shareholders severally represent warrant and agree as
follows:
a.
Investment
Representations. (a) The PDWK Shares will be acquired hereunder solely
for the account of the Changda Shareholders, for investment, and not with a view
to the resale or distribution thereof. Changda Shareholders understand and are
able to bear any economic risks associated with such investment in the PDWK
Shares. Changda Shareholders have had full access to all the information such
shareholders consider necessary or appropriate to make informed investment
decisions with respect to the PDWK Shares to be acquired under this Agreement.
Changda Shareholders further have had an opportunity to ask questions and
receive answers from PDWK’s directors regarding PDWK and to obtain additional
information (to the extent PDWK’s directors possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify any
information furnished to such shareholder or to which such shareholder had
access. Changda Shareholders are at the time of the offer and execution of this
Agreement, either domiciled and resident outside the United States (a “Foreign Shareholder”) and or are each an
“accredited investor” (as such term is defined in Rule 501(a) of Regulation D
promulgated by the Securities and Exchange Commission under the Securities
Act).
(b) To
the best knowledge of the Changda Shareholders, no Foreign Shareholder, nor any
affiliate of any Foreign Shareholder, nor any person acting on behalf of any
Foreign Shareholder or any behalf of any such affiliate, has engaged or will
engage in any activity undertaken for the purpose of, or that reasonably could
be expected to have the effect of, conditioning the markets in the United States
for the PDWK Shares, including, but not limited to, effecting any sale or short
sale of securities through any Foreign Shareholder or any of affiliate of any
Foreign Shareholder prior to the expiration of any restricted period contained
in Regulation S promulgated under the Securities Act (any such activity being
defined herein as a “Directed Selling Effort”). To the best knowledge of the
Foreign Shareholders, this Agreement and the transactions contemplated herein
are not part of a plan or scheme to evade the registration provisions of the
Securities Act, and the PDWK Shares are being acquired for investment purposes
by the Foreign Shareholders. The Foreign Shareholder agrees that all offers and
sales of PDWK Shares from the date hereof and through the expiration of the any
restricted period set forth in Rule 903 of Regulation S (as the same may be
amended from time to time hereafter) shall not be made to U.S. Persons or for
the account or benefit of U.S. Persons and shall otherwise be made in compliance
with the provisions of Regulation S and any other applicable provisions of the
Securities Act. Neither any Foreign Shareholder nor the representatives of any
Foreign Shareholder have conducted any Directed Selling Effort as that term is
used and defined in Rule 902 of Regulation S and no Foreign Shareholder nor any
representative of any Foreign Shareholder will engage in any such Directed
Selling Effort within the United States through the expiration of any restricted
period set forth in Rule 903 of Regulation S.
c.
Brokers’ Fees. Changda Shareholders
have no liability to pay any fees or commissions or other consideration to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement.
Section
3.3
Disclosure. This
Agreement, the schedules hereto and any certificate attached hereto or delivered
in accordance with the terms hereby by or on behalf of Changda or the Changda
Shareholders in connection with the transactions contemplated by this
Agreement, when taken together, do not contain any untrue statement of a
material fact or omit any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
Section
3.4
Survival. Each of the
representations and warranties set forth in this Article III shall be deemed
represented and made by Changda and the Changda Shareholders at the Closing as
if made at such time and shall survive the Closing for a period terminating on
the second anniversary of the date of this Agreement.
ARTICLE
IV
COVENANTS
Section 4.1
Certain Changes and Conduct
of Business.
a.
From and
after the date of this Agreement and until the Closing Date, PDWK shall conduct
its business solely in the ordinary course consistent with past practices and,
in a manner consistent with all representations, warranties or covenants of
PDWK, and without the prior written consent of Changda will not, except as
required or permitted pursuant to the terms hereof:
i.
make any
material change in the conduct of its businesses and/or operations or enter into
any transaction other than in the ordinary course of business consistent with
past practices;
ii.
make any
change in its Articles of Incorporation or By-laws; issue any additional shares
of capital stock or equity securities or grant any option, warrant or right to
acquire any capital stock or equity securities or issue any security convertible
into or exchangeable for its capital stock or alter in any material term of any
of its outstanding securities or make any change in its outstanding shares of
capital stock or its capitalization, whether by reason of a reclassification,
recapitalization, stock split or combination, exchange or readjustment of
shares, stock dividend or otherwise;
iii.
incur,
assume or guarantee any indebtedness for borrowed money, issue any notes, bonds,
debentures or other corporate securities or grant any option, warrant or right
to purchase any thereof, or issue any securities convertible or exchangeable for
debt or equity securities of PDWK;
iv.
make any
sale, assignment, transfer, abandonment or other conveyance of any of its assets
or any part thereof;
v.
subject
any of its assets, or any part thereof, to any lien or suffer such to be
imposed;
vi.
acquire
any assets, raw materials or properties, or enter into any other transaction,
other than in the ordinary course of business consistent with past
practices;
vii.
enter
into any new or amend any existing Agreements. ;
viii.
make or
commit to make any material capital expenditures;
ix.
pay, loan
or advance any amount to, or sell, transfer or lease any properties or assets
to, or enter into any agreement or arrangement with, any of its affiliates,
except that which is contemplated under this Agreement;
x.
guarantee
any indebtedness for borrowed money or any other obligation of any other
person;
xi.
fail to
keep in full force and effect insurance comparable in amount and scope to
coverage maintained by it (or on behalf of it) on the date hereof;
xii.
take any
other action that would cause any of the representations and warranties made by
it in this Agreement not to remain true and correct in all material
respects;
xiii.
make any
material loan, advance or capital contribution to or investment in any person
other than as contemplated by this Agreement;
xiv.
make any
material change in any method of accounting or accounting principle, method,
estimate or practice;
xv.
settle,
release or forgive any claim or litigation or waive any right;
xvi.
commit
itself to do any of the foregoing.
b.
From and
after the date of this Agreement, Changda will cause each of the Changda
Subsidiaries to:
i.
continue
to maintain, in all material respects, its properties in accordance with present
practices in a condition suitable for its current use;
ii.
file,
when due or required, federal, state, foreign and other tax returns and other
reports required to be filed and pay when due all taxes, assessments, fees and
other charges lawfully levied or assessed against it, unless the validity
thereof is contested in good faith and by appropriate proceedings diligently
conducted;
iii.
continue
to conduct its business in the ordinary course consistent with past
practices;
iv.
keep its
books of account, records and files in the ordinary course and in accordance
with existing practices; and
v.
continue
to maintain existing business relationships with suppliers.
Section 4.2
Access to Properties and
Records. Changda shall afford PDWK’s accountants, counsel and authorized
representatives, and PDWK shall afford to Changda's accountants, counsel and
authorized representatives full access during normal business hours throughout
the period prior to the Closing Date (or the earlier termination of this
Agreement) to all of such parties’ properties, books, contracts, commitments and
records and, during such period, shall furnish promptly to the requesting party
all other information concerning the other party's business, properties and
personnel as the requesting party may reasonably request, provided that no
investigation or receipt of information pursuant to this Section 4.2 shall
affect any representation or warranty of or the conditions to the obligations of
any party.
Section 4.3
Negotiations. From
and after the date hereof until the earlier of the Closing or the termination of
this Agreement, no party to this Agreement nor its officers or directors
(subject to such director's fiduciary duties) nor anyone acting on behalf of any
party or other persons shall, directly or indirectly, encourage, solicit, engage
in discussions or negotiations with, or provide any information to, any person,
firm, or other entity or group concerning any merger, sale of substantial
assets, purchase or sale of shares of capital stock or similar transaction
involving any party. A party shall promptly communicate to any other party any
inquiries or communications concerning any such transaction which they may
receive or of which they may become aware.
Section 4.4
Consents and Approvals. The
parties shall:
i.
use their
reasonable commercial efforts to obtain all necessary consents, waivers,
authorizations and approvals of all governmental and regulatory authorities,
domestic and foreign, and of all other persons, firms or corporations required
in connection with the execution, delivery and performance by them of this
Agreement; and
ii.
diligently
assist and cooperate with each party in preparing and filing all documents
required to be submitted by a party to any governmental or regulatory authority,
domestic or foreign, in connection with such transactions and in obtaining any
governmental consents, waivers, authorizations or approvals which may be
required to be obtained in connection with such transactions.
Section 4.5
Public Announcement.
Unless otherwise required by applicable law, the parties hereto shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to this Agreement and shall not issue any such press
release or make any such public statement prior to such
consultation.
Section 4.6
Stock Issuance. From
and after the date of this Agreement until the Closing Date, PDWK shall not
issue any additional shares of its capital stock.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF CHANGDA AND CHANGDA SHAREHOLDERS
The
obligations of Changda and the Changda Shareholders to consummate the
transactions contemplated by this Agreement are subject to the fulfillment, at
or before the Closing Date, of the following conditions, any one or more of
which may be waived by both Changda and the Changda Shareholders in their sole
discretion:
Section 5.1
Representations and
Warranties of PDWK. All representations
and warranties made by PDWK in this Agreement shall be true and correct on and
as of the Closing Date as if again made by PDWK as of such date.
Section 5.2
Agreements and
Covenants. PDWK shall have performed and complied in all material
respects to all agreements and covenants required by this Agreement to be
performed or complied with by it on or prior to the Closing Date.
Section 5.3
Consents and
Approvals. Consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement shall be in full force and effect on the
Closing Date.
Section 5.4
No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or governmental or regulatory authority, domestic or foreign, nor any
statute, rule, regulation, decree or executive order promulgated or enacted by
any government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition of
PDWK shall be in effect; and no action or proceeding before any court or
governmental or regulatory authority, domestic or foreign, shall have been
instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF PDWK
The
obligations of PDWK to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing Date, of the
following conditions, any one or more of which may be waived by PDWK in its sole
discretion:
Section 6.1
Representations and
Warranties of Changda and Changda Shareholders.
All representations and warranties made by Changda and Changda Shareholders in
this Agreement shall be true and correct on and as of the Closing Date as if
again made by them on and as of such date.
Section 6.2
Agreements and
Covenants. Changda and Changda Shareholders shall have performed and
complied in all material respects to all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
Section 6.3
Consents and
Approvals. All consents, waivers, authorizations and approvals of any
governmental or regulatory authority, domestic or foreign, and of any other
person, firm or corporation, required in connection with the execution, delivery
and performance of this Agreement, shall have been duly obtained and shall be in
full force and effect on the Closing Date.
Section 6.4
No Violation of
Orders. No preliminary or permanent injunction or other order issued by
any court or other governmental or regulatory authority, domestic or foreign,
nor any statute, rule, regulation, decree or executive order promulgated or
enacted by any government or governmental or regulatory authority, domestic or
foreign, that declares this Agreement invalid or unenforceable in any respect or
which prevents the consummation of the transactions contemplated hereby, or
which materially and adversely affects the assets, properties, operations,
prospects, net income or financial condition of Changda or Changda Subsidiaries,
taken as a whole, shall be in effect; and no action or proceeding before any
court or government or regulatory authority, domestic or foreign, shall have
been instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
Section 6.5.
Other Closing
Documents. PDWK shall have received such other certificates, instruments
and documents in confirmation of the representations and warranties of Changda
or in furtherance of the transactions contemplated by this Agreement as PDWK or
its counsel may reasonably request.
ARTICLE
VII
TERMINATION
AND ABANDONMENT
SECTION 7.1
Methods of
Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time before the
Closing:
a.
By the
mutual written consent of Changda, Changda Shareholders, and PDWK;
b.
By PDWK,
upon a material breach of any representation, warranty, covenant or agreement on
the part of Changda or Changda Shareholders set forth in this Agreement, or if
any representation or warranty of Changda or the Changda Shareholders shall
become untrue, in either case such that any of the conditions set forth in
Article VI hereof would not be satisfied (a "Changda Breach"), and such breach, if
capable of cure, has not been cured within Thirty (30) days after receipt by the
party in breach of a notice from the non-breaching party setting forth in detail
the nature of such breach;
c.
By
Changda, upon a material breach of any representation, warranty, covenant or
agreement on the part of PDWK set forth in this Agreement, or, if any
representation or warranty of PDWK shall become untrue, in either case such that
any of the conditions set forth in Article V hereof would not be satisfied (a
"PDWK Breach"), and such breach
shall, if capable of cure, not have been cured within Thirty (30) days after
receipt by the party in breach of a written notice from the non-breaching party
setting forth in detail the nature of such breach;
d.
By either
PDWK or Changda, if the Closing shall not have consummated before Ninety (90)
days after the date hereof; provided, however, that this Agreement may be
extended by written consent of both Changda and PDWK, if the
Closing shall not have been consummated as a result of PDWK or Changda having
failed to receive all required regulatory approvals or consents with respect to
this transaction or as the result of the entering of an order as described in
this Agreement; and further provided, however, that the right to terminate this
Agreement under this Section 7.1(d) shall not be available to any party whose
failure to fulfill any obligations under this Agreement has been the cause of,
or resulted in, the failure of the Closing to occur on or before this
date;
e.
By either
Changda or PDWK if a court of competent jurisdiction or governmental, regulatory
or administrative agency or commission shall have issued an order, decree or
ruling or taken any other action (which order, decree or ruling the parties
hereto shall use its best efforts to lift), which permanently restrains, enjoins
or otherwise prohibits the transactions contemplated by this
Agreement.
Section
7.2
Procedure Upon
Termination. In the event of termination and abandonment of this
Agreement by Changda or PDWK pursuant to Section 7.1, written notice thereof
shall forthwith be given to the other parties and this Agreement shall terminate
and the transactions contemplated hereby shall be abandoned, without further
action. If this Agreement is terminated as provided herein, no party to this
Agreement shall have any liability or further obligation to any other party to
this Agreement; provided, however, that no termination of this Agreement
pursuant to this Article VII shall relieve any party of liability for a breach
of any provision of this Agreement occurring before such
termination.
ARTICLE
VIII
POST-CLOSING
AGREEMENTS
Section 8.1
Consistency in
Reporting. Each party hereto
agrees that if the characterization of any transaction contemplated in this
agreement or any ancillary or collateral transaction is challenged, each party
hereto will testify, affirm and ratify that the characterization contemplated in
such agreement was the characterization intended by the party; provided,
however, that nothing herein shall be construed as giving rise to any obligation
if the reporting position is determined to be incorrect by final decision of a
court of competent jurisdiction.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section 9.1
Survival of
Provisions. The respective representations, warranties, covenants and
agreements of each of the parties to this Agreement (except covenants and
agreements which are expressly required to be performed and are performed in
full on or before the Closing Date) shall survive the Closing Date and the
consummation of the transactions contemplated by this Agreement, subject to
Sections 2.15, 3.8 and 9.1. In the event of a breach of any of such
representations, warranties or covenants, the party to whom such
representations, warranties or covenants have been made shall have all rights
and remedies for such breach available to it under the provisions of this
Agreement or otherwise, whether at law or in equity, regardless of any
disclosure to, or investigation made by or on behalf of such party on or before
the Closing Date.
Section 9.2
Publicity. No party
shall cause the publication of any press release or other announcement with
respect to this Agreement or the transactions contemplated hereby without the
consent of the other parties, unless a press release or announcement is required
by law. If any such announcement or other disclosure is required by law, the
disclosing party agrees to give the non-disclosing parties prior notice and an
opportunity to comment on the proposed disclosure.
Section 9.3
Successors and
Assigns. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns; provided,
however, that no party shall assign or delegate any of the obligations created
under this Agreement without the prior written consent of the other
parties.
Section 9.4
Fees and Expenses.
Except as otherwise expressly provided in this Agreement, all legal and other
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs or expenses.
Section 9.5
Notices. All notices
and other communications given or made pursuant hereto shall be in writing and
shall be deemed to have been given or made if in writing and delivered
personally or sent by registered or certified mail (postage prepaid, return
receipt requested) to the parties or to such other persons or at such other
addresses as shall be furnished by any party by like notice to the others, and
such notice or communication shall be deemed to have been given or made as of
the date so delivered or mailed. No change in any of such addresses shall be
effective insofar as notices under this Section 9.5 are concerned
unless notice of such change shall have been given to such other
party hereto as provided in this Section 9.5
Section 9.6
Entire Agreement.
This Agreement, together with the exhibits hereto, represents the entire
agreement and understanding of the parties with reference to the transactions
set forth herein and no representations or warranties have been made in
connection with this Agreement other than those expressly set forth herein or in
the exhibits, certificates and other documents delivered in accordance herewith.
This Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the subject matter of this Agreement and all prior drafts of this Agreement, all
of which are merged into this Agreement. No prior drafts of this Agreement and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section 9.7
Severability. This
Agreement shall be deemed severable, and the invalidity or unenforceability of
any term or provision hereof shall not affect the validity or enforceability of
this Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar in
terms to such invalid or unenforceable provision as may be possible so as to be
valid and enforceable.
Section 9.8
Titles and Headings.
The Article and Section headings contained in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement or of any term or provision hereof.
Section
9.9
Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed one
and the same agreement. In the event
that any signature is delivered by facsimile or electronic mail transmission,
such signature shall create a valid binding obligation of the party executing
(or on whose behalf such signature is executed) the same with the same force and
effect as if such facsimile signature were the original thereof.
Section 9.10
Convenience of Forum; Consent to
Jurisdiction. The parties to this Agreement, acting for themselves and
for their respective successors and assigns, without regard to domicile,
citizenship or residence, hereby expressly and irrevocably elect as the sole
judicial forum for the adjudication of any matters arising under or in
connection with this Agreement, and consent and subject themselves to the
jurisdiction of, the courts of the State of New York located in County of New
York, and/or the United States District Court for the Southern District of New
York, in respect of any matter arising under this Agreement. Service of process,
notices and demands of such courts may be made upon any party to this Agreement
by personal service at any place where it may be found or giving notice to such
party as provided in Section 9.5.
Section 9.11
Enforcement of the
Agreement. The parties hereto agree that irreparable damage would occur
if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereto, this being in addition to any other remedy to which they are entitled at
law or in equity.
Section 9.12
Governing Law. This
Agreement shall be governed by and interpreted and enforced in accordance with
the laws of the State of New York without giving effect to the choice of law
provisions thereof.
Section 9.13
Amendments and
Waivers. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the parties hereto. No waiver by any
party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
|
Changda Holdings,Ltd.
|
|
|
By:
|
|
|
Print Name:
|
|
|
Title:
|
|
Changda
Shareholders :
|
||
|
By:
|
|
|
|
Print Name:
|
|
|
By:
|
|
|
Title:
|
|
By:
|
|
|
Qing Ran Zhu
|
|
|
Title:
|
PRESIDENT
|
EXHIBIT A
to Share Exchange Agreement
The
following shareholders of Changda International, LTD. Exchange their shares of
Changda International, LTD for Shares of Xxxxxxxxxxxxx.xxx, Inc according to the
terms of the Share Exchange Agreement dated February 13, 2009.
|
Shareholder
|
Changda
Shares
(transferred
from
shareholder
to PDWK)
|
PDWK Shares (issued to
shareholder)
|
||||||
|
GEO
GENESIS GROUP LIMITED
|
1,200,000 | 800,000 | ||||||
|
GEOCAPITAL
HOLDINGS LIMITED
|
450,000 | 450,000 | ||||||
|
PRHC
|
450,000 | 450,000 | ||||||
|
SED
|
250,000 | 250,000 | ||||||
|
MR
JIA XXXXX XXX
|
655,714 | 655,714 | ||||||
|
XX
XXX XXXXXXXXX
|
150,000 | 150,000 | ||||||
|
MR
PHILIPPE DE COCK DE RAMEYEN
|
344,071 | 344,071 | ||||||
|
XX
XXXXXXXX XXXXXX
|
1,064,173 | 1,064,173 | ||||||
|
XX
XXXXXX XXXXXXXX
|
864,253 | 864,253 | ||||||
|
XX
XXXXX XXXXXXX
|
79,900 | 79,900 | ||||||
|
XX
XXXXXXX DE SEJOURNET DE RAMEIGNIES
|
254,286 | 254,286 | ||||||
|
RAHFCO
SELECT LP
|
5,780,000 | 4,510,000 | ||||||
|
VISION
OPPORTUNITY MASTER FUND LTD
|
1,714,651 | 1,714,651 | ||||||
|
ALLHOMELY
INTERNATIONAL LIMITED
|
22,135,973 | 17,935,973 | ||||||
|
EXCEED
INTERNATIONAL LIMITED
|
11,632,000 | 11,632,000 | ||||||
|
XXXXXX
INTERNATIONAL LIMITED
|
6,432,000 | 6,432,000 | ||||||
|
UNITED
RICHY LIMITED
|
142,943 | 142,943 | ||||||
SCHEDULE
A: Pre Transaction Capitalization Tables:
|
COMMON SHARES
|
PREFERRED SHARES
|
||||||
|
AUTHORIZED
|
100,000,000
(PAR
VALUE
$.001)
|
0 | |||||
|
NON-RESTRICTED
|
4,600,000
|
0 | |||||
|
RESTRICTED
|
4,200,000
|
0 | |||||
|
BELONGING
TO HOLDERS OF LESS THAN 5% EQUITY
|
4,600,000
|
0 | |||||
|
BELONGING
TO HOLDERS OF GREATER THAN 5% EQUITY
|
4,200,000
|
0 | |||||
|
TOTAL
OUTSTANDING
|
8,800,000
|
0 | |||||
PRE-TRANSACTION ALLOCATION
OF PDWK FREE TRADING SHARES
(No
holders of free trading shares hold greater than 5% of outstanding capital
stock)
|
SHAREHOLDER
SHARES
|
# | |||
|
Xxxxx
XxXxxxxxxx
|
83,333 | |||
|
MR
PHILIPPE DE COCK DE RAMEYEN
|
25,000 | |||
|
XX
XXXXXXX DE SEJOURNET DE RAMEIGNIES
|
25,000 | |||
|
XX
XXXXX XXXXXXX
|
16,667 | |||
|
SUNVENTURES
PARTNERS LIMITED
|
223,000 | |||
|
Xxxxxxx
X. Xxxxxx
|
223,000 | |||
|
XX
XXXXXXXX FAMILY LP
|
73,000 | |||
|
XX
XXXXXXXX FAMILY, L.P.
|
50,000 | |||
|
GEO
GENESIS GROUP, LTD.
|
400,000 | |||
|
Hemlock
Holdings LLC
|
183834 | |||
|
ALSH
INTERNATIONAL LLC
|
425,000 | |||
|
EAGLE
BROOK SCHOOL
|
83,333 | |||
|
Soleil
Radiant LLC
|
269,834 | |||
|
Xx
Xxxxxxx Xxxxxxxx
|
100,000 | |||
|
Xxxx
Xxxxxxxxx
|
217,666 | |||
|
XXXXX
X. XXXXXXXX
|
50,000 | |||
|
Shamrock
Oceanic Holdings LLC
|
171,000 | |||
|
Ahwanhee
Partners LLC
|
50,000 | |||
|
XXXXXX
MEKERS
|
100,000 | |||
|
Abbey
Road Investment Corp.
|
225,333.00 | |||
|
First
Trust Management, Inc.
|
430,000 | |||
|
Blackhawk
Investments Ltd.
|
285,000 | |||
|
Sterling
East, LLC
|
10,000 | |||
|
Gibraltar
Partners
|
420,000.00 | |||
|
XXXXXX
HOLDINGS L.P.
|
425,000.00 | |||
|
Xxxxxx
Xxxxxxxxxxxx
|
35000 | |||
|
TOTAL
FREE TRADING SHARES
|
4600000 |
PRE-TRANSACTION ALLOCATION
OF PDWK RESTRICTED SHARES
( * indicates holder of greater than
5% of outstanding capital stock)
|
ALLHOMELY
INTERNATIONAL LIMITED *
|
4,200,000 | |||
|
TOTAL
RESTRICTED SHARES
|
4,200,000 |
SCHEDULE
B: POST Transaction Capitalization Tables:
|
COMMON SHARES
|
PREFERRED SHARES
|
||||||
|
AUTHORIZED
|
100,000,000
(PAR
VALUE
$.001)
|
0 | |||||
|
NON-RESTRICTED
|
4,600,000 | 0 | |||||
|
RESTRICTED
|
51,929,964 | 0 | |||||
|
BELONGING
TO HOLDERS OF LESS THAN 5% EQUITY
|
11,819991 | 0 | |||||
|
BELONGING
TO HOLDERS OF GREATER THAN 5% EQUITY
|
44,709,973 | 0 | |||||
|
TOTAL
OUTSTANDING
|
56,529,964 | 0 | |||||
POST-TRANSACTION ALLOCATION
OF PDWK FREE TRADING SHARES
(
* indicates holder of greater than 5% of outstanding capital stock)
|
SHAREHOLDER
SHARES
|
# | |||
|
Xxxxx
XxXxxxxxxx
|
83,333 | |||
|
MR
PHILIPPE DE COCK DE RAMEYEN
|
25,000 | |||
|
XX
XXXXXXX DE SEJOURNET DE RAMEIGNIES
|
25,000 | |||
|
XX
XXXXX XXXXXXX
|
16,667 | |||
|
SUNVENTURES
PARTNERS LIMITED
|
223,000 | |||
|
Xxxxxxx
X. Xxxxxx
|
223,000 | |||
|
XX
XXXXXXXX FAMILY LP
|
73,000 | |||
|
XX
XXXXXXXX FAMILY, L.P.
|
50,000 | |||
|
GEO
GENESIS GROUP, LTD.
|
400,000 | |||
|
Hemlock
Holdings LLC
|
183834 | |||
|
ALSH
INTERNATIONAL LLC
|
425,000 | |||
|
EAGLE
BROOK SCHOOL
|
83,333 | |||
|
Soleil
Radiant LLC
|
269,834 | |||
|
Xx
Xxxxxxx Xxxxxxxx
|
100,000 | |||
|
Xxxx
Xxxxxxxxx
|
217,666 | |||
|
XXXXX
X. XXXXXXXX
|
50,000 | |||
|
Shamrock
Oceanic Holdings LLC
|
171,000 | |||
|
Ahwanhee
Partners LLC
|
50,000 | |||
|
XXXXXX
MEKERS
|
100,000 | |||
|
Abbey
Road Investment Corp.
|
225,333.00 | |||
|
First
Trust Management, Inc.
|
430,000 | |||
|
Blackhawk
Investments Ltd.
|
285,000 | |||
|
Sterling
East, LLC
|
10,000 | |||
|
Gibraltar
Partners
|
420,000.00 | |||
|
XXXXXX
HOLDINGS L.P.
|
425,000.00 | |||
|
Xxxxxx
Xxxxxxxxxxxx
|
35000 | |||
|
TOTAL
FREE TRADING SHARES
|
4600000 |
|
POST-TRANSACTION ALLOCATION
OF PDWK RESTRICTED SHARES ( * indicates holder of greater than 5% of
outstanding capital stock)
|
SHARES
|
|||
| SHAREHOLDER | ||||
|
ALLHOMELY
INTERNATIONAL LIMITED *
|
22,135,973 | |||
|
|
||||
|
GEO
GENESIS GROUP LTD
|
800,000 | |||
|
GEOCAPITAL
HOLDINGS LIMITED
|
450,000 | |||
|
PRHC
|
450,000 | |||
|
SED
|
250,000 | |||
|
MR
JIA XXXXX XXX
|
655,714 | |||
|
XX
XXX XXXXXXXXX
|
150,000 | |||
|
MR
PHILIPPE DE COCK DE RAMEYEN
|
344,071 | |||
|
XX
XXXXXXXX XXXXXX
|
1,064,173 | |||
|
XX
XXXXXX XXXXXXXX
|
864,253 | |||
|
XX
XXXXX XXXXXXX
|
79,900 | |||
|
XX
XXXXXXX DE SEJOURNET DE RAMEIGNIES
|
254,286 | |||
|
RAHFCO
SELECT LP *
|
4,510,000 | |||
|
VISION
OPPORTUNITY MASTER FUND LTD
|
1,714,651 | |||
|
EXCEED
INTERNATIONAL LIMITED *
|
11,632,000 | |||
|
XXXXXX
INTERNATIONAL LIMITED *
|
6,432,000 | |||
|
UNITED
RICHY LIMITED
|
142,943 | |||
|
TOTAL
RESTRICTED SHARES
|
51,929964 | |||
