STOCK PURCHASE AGREEMENT
Exhibit
10.1
STOCK
PURCHASE AGREEMENT (this “Agreement”) made as of this ___ day of March, 2009
between and among China Opportunity Acquisition Corp. (“Buyer” or “China
Opportunity”) and the signatory on the execution page hereof (the
“Seller”).
WHEREAS,
China Opportunity was organized for the purpose of acquiring, through a merger,
capital stock exchange, asset acquisition or other similar business combination,
an operating business that has its principal operations located in the People’s
Republic of China (“Business Combination”);
WHEREAS,
China Opportunity consummated an initial public offering in March 2007 (“IPO”)
in connection with which it raised net proceeds of approximately $38.9 million
which were placed in a trust account pending the consummation of a Business
Combination, or the dissolution and liquidation of China Opportunity, in the
event it is unable to consummate a Business Combination by March 20,
2009.
WHEREAS,
China Opportunity has agreed to merger with (the “Acquisition”) Golden Green
Enterprises Limited (“Golden Green”) pursuant to certain agreements (the
“Transaction Agreements”).
WHEREAS,
the approval of the Acquisition is contingent upon, among other things, the
affirmative vote of holders of a majority of the outstanding common shares of
China Opportunity voting at the meeting to approve the Acquisition.
WHEREAS,
pursuant to certain provisions in China Opportunity’s certificate of
incorporation, a holder of shares of China Opportunity's common stock issued in
the IPO may, if it votes against the Acquisition, demand that China Opportunity
convert such common shares into cash (“Conversion Rights”).
WHEREAS,
the Acquisition is subject to the exercise of Conversion Rights by holders of
less than 40% of the China Opportunity common stock issued in the
IPO.
WHEREAS,
Seller has agreed to sell to Buyer and Buyer has agreed to purchase from Seller
the common shares set forth on the execution page of this Agreement (“Shares”)
for the purchase price per share set forth therein (“Purchase Price Per Share”)
and for the aggregate purchase price set forth therein.
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Purchase. Seller
hereby sells to Buyer and Buyer hereby purchases from Seller at the Closing the
Shares for the Purchase Price Per Share, for the aggregate consideration set
forth on the execution page of this Agreement.
2. Agreement not to Convert;
Appointment of Attorney in Fact. In further consideration of
the Aggregate Purchase Price, the Seller hereby agrees it has not and will not
exercise its Conversion Rights. Because the record date to vote on
the proposals set forth in the proxy statement included in the Registration
Statement on Form S-4 filed by China Opportunity with the U.S. Securities
Exchange Commission (the “Proxy Statement”) has passed, Buyer would not be
entitled to vote the Shares at the shareholders meeting contemplated by the
Proxy Statement. Accordingly, solely with respect to the vote for the
Acquisition and related proposals (as contemplated by the Proxy Statement), the
Seller hereby irrevocably appoints _____________ and ___________ and each of
them, each with full power of substitution, to the full extent of such
stockholder’s rights with respect to the Shares (and any and all other Shares or
securities or rights issued or issuable in respect thereof) to vote in such
manner as each such attorney and proxy or his substitute shall in his sole
discretion deem proper, and otherwise act (including without limitation pursuant
to written consent) with respect to all the Shares sold hereunder which the
Seller is entitled to vote at any meeting of stockholders (whether annual or
special and whether or not an adjourned meeting) of China Opportunity held prior
to March 22, 2009. This proxy is coupled with an interest in China
Opportunity and in the Shares and is irrevocable. Such acceptance for
payment shall revoke, without further action, all prior proxies granted by the
Seller at any time with respect to such Shares (and any such other Shares or
other securities) and no subsequent proxies will be given (and if given will be
deemed not to be effective) with respect thereto by the Seller.
2.1 Closing. The closing
of the purchase of the Shares (“Closing”) by Buyer will occur within two
business days of the date that Acquisition is consummated (the “Closing
Date”). The closing of the Acquisition must occur no later than two
business days after the shareholders of the company have approved the
Acquisition. The Closing shall be effected delivery versus payment
via the Depository Trust Company. For purposes of clarity, and
notwithstanding anything in this Agreement to the contrary, in the event the
closing of the Business Combination does not occur by March 23, 2009, this
Agreement shall be null and void, ab initio, and no party hereto shall have any
rights or obligations under this Agreement. It shall be a condition to the
obligation of Buyer on the one hand and the Seller on the other hand, to
consummate the transfer of the Shares contemplated hereunder that the other
party’s representations and warranties are true and correct on the Closing Date
with the same effect as though made on such date, unless waived in writing by
the party to whom such representations and warranties are made.
2.2 At
or before the Closing, the Seller shall deliver or cause to be delivered to
Buyer appropriate instructions for book entry transfer of ownership of the
Shares from the Seller to Buyer. In addition, within two business
days of the date of this Agreement, the Seller shall provide the Buyer with a
true and correct copy of the voting information form with respect to the Shares
held by Seller indicating the financial institution through which such shares
are held and the control number provided by Broadridge Financial Solutions
regarding the voting of such Shares or written confirmation of such information
as would appear on the voting information form.
2.3 At
or before the Closing, Buyer shall deliver or cause to be delivered to the
Seller payment by wire transfer of immediately available funds the Purchase
Price in accordance with Section 1 of this Agreement.
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3. Representations and
Warranties of the Seller.
3.1 The
Seller hereby represents and warrants to Buyer on the date hereof and on the
date of the Closing that:
(a) Sophisticated
Seller. The Seller is sophisticated in financial matters and
is able to evaluate the risks and benefits attendant to the sale of Shares to
Buyer.
(b) Independent
Investigation. The Seller, in making the decision to sell the Shares to
Buyer, has not relied upon any oral or written representations or assurances
from Buyer or any of its officers, directors or employees or any other
representatives or agents of Buyer. The Seller has had access to all
of the filings made by China Opportunity with the United States Securities and
Exchange Commission (the “SEC”), pursuant to the Exchange Act and the Securities
Act of 1933 (the “Securities Act”), in each case to the extent available
publicly accessible via the SEC’s Electronic Data Gathering, Analysis and
Retrieval system.
(c) Authority. This
Agreement has been validly authorized, executed and delivered by the Seller and,
assuming the due authorization, execution and delivery thereof by Buyer, is a
valid and binding agreement enforceable in accordance with its terms, subject to
the general principles of equity and to bankruptcy or other laws affecting the
enforcement of creditors’ rights generally. The execution, delivery and
performance of this Agreement by the Seller does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which the Seller is a
party which would prevent the Seller from performing its obligations hereunder
or (ii) any law, statute, rule or regulation to which the Seller is
subject.
(d) No Legal Advice from
Buyer. The Seller acknowledges that it has had the opportunity to review
this Agreement and the transactions contemplated by this Agreement with the
Seller’s own legal counsel and investment and tax advisors. The Seller is not
relying on any statements or representations of Buyer or any of its
representatives or agents for legal, tax or investment advice with respect to
this Agreement or the transactions contemplated by this Agreement.
4. Representations and
Warranties of Buyer.
4.1 Buyer
hereby represents to the Seller that:
(a) Sophisticated
Buyer. The Buyer is sophisticated in financial matters and is
able to evaluate the risks and benefits attendant to the sale of Shares by
Seller.
(b) Independent
Investigation. Buyer, in making the decision to purchase the Shares from
Seller, has not relied upon any oral or written representations or assurances
from the Seller or any of its officers, directors, partners or employees or any
other representatives or agents of the Seller.
(c) Authority. This
Agreement has been validly authorized, executed and delivered by Buyer and,
assuming the due authorization, execution and delivery thereof by the Seller, is
a valid and binding agreement enforceable in accordance with its terms, subject
to the general principles of equity and to bankruptcy or other laws affecting
the enforcement of creditors’ rights generally. The execution, delivery and
performance of this Agreement by Buyer does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Buyer is a party
which would prevent Buyer from performing its obligations hereunder or (ii) any
law, statute, rule or regulation to which Buyer is subject.
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(d) No Legal Advice from
Seller. Buyer acknowledges that it has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with Buyer’s own
legal counsel and investment and tax advisors. Buyer is relying solely on such
counsel and advisors and not on any statements or representations of Seller or
any of its representatives or agents for legal, tax or investment advice with
respect to this Agreement or the transactions contemplated by this
Agreement.
5. Termination.
Notwithstanding any provision in this Agreement to the contrary, this Agreement
shall become null and void and of no force and effect upon the earlier of (a)
the termination of the Transaction Agreements prior to the consummation of the
transactions contemplated thereby and (b) 11:59 p.m. eastern standard time on
March 23, 2009.
6. Counterparts;
Facsimile. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument. This
Agreement or any counterpart may be executed via facsimile transmission, and any
such executed facsimile copy shall be treated as an original.
7. Governing Law. This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced in
the courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
8. Remedies. Each
of the parties hereto acknowledges and agrees that, in the event of any breach
of any covenant or agreement contained in this Agreement by the other party,
money damages may be inadequate with respect to any such breach and the
non-breaching party may have no adequate remedy at law. It is
accordingly agreed that each of the parties hereto shall be entitled, in
addition to any other remedy to which they may be entitled at law or in equity,
to seek injunctive relief and/or to compel specific performance to prevent
breaches by the other party hereto of any covenant or agreement of such other
party contained in this Agreement.
9. Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement shall not be
assigned by either party without the prior written consent of the other party
hereto.
10. Entire Agreement; Changes in
Writing. This Agreement constitutes the entire agreement among
the parties hereto and supersedes and cancels any prior agreements,
representations, warranties, whether oral or written, among the parties hereto
relating to the transaction contemplated hereby. Neither this
Agreement nor any provision hereof may be changed or amended orally, but only by
an agreement in writing signed by the other party hereto.
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blank; signature page follows]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
| CHINA OPPORTUNITY ACQUISITION CORP. | |||
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By:
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| Name: | |||
| Title: | |||
| [Name] | |||
| By: | |||
| Name: | |||
| Title: | |||
| Address: | |||
Purchase
Price Per Share:
Number of
Shares:
Aggregate
Purchase Price:
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