ASSIGNMENT AND ASSUMPTION
and
MANAGEMENT AGREEMENT
This Assignment and Assumption and Management Agreement (this
"Agreement") is made and entered into on October 27, 2010, by and among
the following parties (each, a "Party" and collectively, the "Parties"):
China Stationery & Office Supply, Inc., a Delaware corporation (the
"Company"), Ningbo Binbin Stationery Co., Ltd., a limited liability
company organized under the laws of the People's Republic of China (the
"Subsidiary") , and Wei Chenghui (the "Manager").
WHEREAS, the Subsidiary is a wholly-owned subsidiary of the Company
that is engaged in the business of distributing office supplies in the
People's Republic of China and internationally; and
WHEREAS, the Manager and other shareholders are on this date
transferring control of the Company to individuals who intend to cause
the Company to enter into other business ventures, and who believe the
Company would be well served by divesting itself of the Subsidiary; and
WHEREAS, the Manager wishes to continue to control the Subsidiary.
NOW, THEREFORE, in consideration of the mutual promises made herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to
be legally bound, agree as follows:
TRANSFER AND ASSIGNMENT OF ASSETS
On the terms and subject to the conditions herein expressed, the
Company hereby sells, conveys, transfers, assigns, sets over and
delivers to the Subsidiary at the Time of Closing (as defined in
Section 3.1), and the Subsidiary assumes and accepts, all of the assets,
rights and interests, tangible and intangible, of every kind, nature
and description, then owned, possessed or operated by the Company,
wheresoever situate (collectively, the "Assets"), including without
limitation the following:
Intangible Property. All intangible assets of the Company which
are transferable including, but not limited to, customer and supplier
lists, privileges, permits, licenses, software and software licenses,
certificates, commitments, goodwill, registered and unregistered
patents, trademarks, service marks and trade names, and applications
for registration thereof and the goodwill associated therewith;
Cash and Accounts Receivable. All accounts receivable, deposit
accounts, cash and cash equivalents and securities owned by the
Company ;
Claims. Claims made in lawsuits and other proceedings filed by
the Company, judgments and settlements in the Company's favor, rights
to refunds, including rights to and claims for federal and state income
and franchise tax refunds and refunds of other taxes paid based upon or
measured by income prior to the Closing, and insurance policies and
rights accrued thereunder.
ASSUMPTION OF LIABILITIES
Scope of Liabilities Assumed. The Subsidiary shall assume, pay,
perform or discharge the following:
- any and all debts, liabilities or obligations of any nature of
the Company or the Subsidiary, whether contingent or fixed and whether
known or unknown, which have accrued at the Time of Closing.
- any and all debts, liabilities or obligations of any nature of
the Subsidiary, whether contingent or fixed and whether known or
unknown, arising either before or after the Time of Closing.
The Subsidiary shall promptly provide for payment, performance and
discharge of the same in accordance with their terms.
THE CLOSING
The Closing. The closing of the transactions contemplated in this
Agreement ("Closing") shall take place simultaneously with the closing
of the transactions contemplated under the Share Purchase Agreement
between Xxxxx Xxxx as agent for the selling shareholders and Xxxxx
Xxxxxx as agent for the purchasers. The effective time of closing is
referred to herein as the "Time of Closing."
Deliveries by the Company. At Closing, the Company shall deliver to
the Subsidiary, in addition to all other items specified elsewhere in
this Agreement, the following:
- Such instruments of sale, conveyance, transfer, assignment,
endorsement, direction or authorization as will be required or as may
be desirable to vest in the Subsidiary, its successors and assigns, all
right, title and interest in and to the Assets, subject to any and all
mortgages, pledges, liens, encumbrances, equities, charges, conditional
sale or other title retention agreements, assessments, covenants,
restrictions, reservations, commitments, obligations, or other burdens
or encumbrances of any nature whatsoever that exist at the Time of
Closing;
- All of the files, documents, papers, agreements, books of account
and records pertaining to the Assets;
- Actual possession and operating control of the Assets; and
- To the extent required, the consents of third parties to the
assignment and transfer of any of the Assets.
Deliveries by Subsidiary. At Closing, the Subsidiary shall deliver to
the Company any instruments, in addition to this Agreement, as the
Company deems necessary or desirable fully to secure the assumption by
the Subsidiary, its successors and assigns, of all liabilities and
obligations of the Company, as described Section 2.1 hereof.
COVENANTS ON AND SUBSEQUENT TO THE CLOSING DATE
On and after the Closing Date, the Subsidiary and the Company (as the
case may be) covenant as follows:
Pay Creditors. Following the Closing, the Subsidiary shall pay
all payables and other obligations of the Company assumed hereunder by
the Subsidiary, as such obligations become due in the ordinary course
of business.
Lawsuits. Without limiting the generality of Section 2.01,
following the Closing, the Subsidiary shall continue the defense of any
and all lawsuits or other claims filed or threatened against the
Company.
Insurance Policies. The Subsidiary shall name the Company as an
additional insured on all insurance policies transferred by the Company
or any other insurance policies covering the period prior to the Time
of Closing, and the Subsidiary shall provide proof of such coverage to
the Company upon request.
Right to Inspect Records. The Subsidiary shall permit the
Company and its agents to have reasonable access to the books and
accounts of the Subsidiary (at the expense of the Company) for the
purpose of filing tax returns, preparing filings required by the
Securities and Exchange Commission, and all other legitimate purposes.
Execution of Further Documents. Upon the request of either
party, the other party shall execute, acknowledge and deliver all such
further acts, deeds, bills of sale, assignments, assumptions,
undertakings, transfers, conveyances, title certificates, powers of
attorney and assurances as may be required , in the case of the
Subsidiary, to convey and transfer to, and vest in, the Subsidiary all
of the Company's right, title and interest in the Assets, and in the
case of the Company, to secure the assumption by the Subsidiary of the
Company's obligations and liabilities arising as of the Time of Closing.
MANAGEMENT AND OPERATION OF SUBSIDIARY
Titles. The Subsidiary hereby engages the Manager to manage and
operate its business. The Manager shall serve as the sole member of
the Board of Directors of the Subsidiary, and the Manager shall have
such titles as he deems appropriate under the circumstances.
Duties. The Manager agrees that he will manage and operate
the business of the Subsidiary to the best of his abilities and will
devote such time and effort as necessary to fulfill his duties under
this Agreement. The Manager shall not be liable to the Company or to
any shareholder of the Company for any failure, negligence or
inadequacy in connection with his management of the Subsidiary, however,
other than for willful and malicious misconduct.
Management of the Subsidiary. The Company agrees that the
Manager will have exclusive authority over the operations of the
Subsidiary, except that the Company shall be entitled to intervene in
the event that a breach of the covenants in this Agreement or any
conduct by the Manager in the course of operating the Subsidiary
threatens the Company with material harm or material liability of any
kind. (In any such event, the Company shall be entitled to remove the
directors and officers of the Subsidiary and to elect a new Board of
Directors.) The Manager shall maintain such books and records of the
operations of the Subsidiary as are required by the Rules of the SEC,
and shall prepare quarterly and annual financial statements promptly so
as to permit the Company to file periodic reports with the SEC
according to SEC Rules.
Company's Covenants. The Company shall not cause any funds or
assets of the Subsidiary to be paid or transferred to the Company, nor
shall the Company cause the Subsidiary to issue any capital stock of
any class or series or any options, warrants or rights to acquire
capital stock of the Subsidiary whether for additional consideration or
on conversion.
OPTION TO PURCHASE OR SELL THE SUBSIDIARY
The Options. The Company hereby grants to the Manager an
irrevocable option to acquire all of the registered capital of the
Subsidiary (the "Call Option"). The Manager hereby grants to the
Company an irrevocable option to cause the Manager to purchase all of
the registered capital of the Subsidiary (the "Put Option"). Either
the Put Option or the Call Option may be exercised at any time when the
Subsidiary does not represent substantially all of the assets of the
Company. In addition, the Call Option may be exercised by the Manager
at any time after January 1, 2011. The Manager may exercise the Call
Option by giving written notice to the Company, or the Company may
exercise the Put Option by giving written notice to the Manager, said
notice in either case being effective upon delivery.
Consideration for Transfers. Upon exercise of either option, the
Manager will deliver to the Company, duly endorsed for transfer to the
Company, one or more certificates representing in aggregate three
million seven hundred ninety six thousand nine hundred thirty eight
(3,796,938) shares of the Company's common stock. The Manager will
also deliver to the Company a written personal and unconditional
guarantee of the obligations of the Subsidiary set forth in Section 2.1
of this agreement. After the effective date of exercise of either
option, the Company will provide any reasonable assistance required by
the Manager to effect the registration with the government of China of
the transfer of the registered capital of the Subsidiary.
INDEMNIFICATION
Indemnification by Subsidiary and Manager. From and after the Closing,
the Subsidiary and the Manager shall, jointly and severally, indemnify
and save the Company, its officers and directors, and their respective
successors, assigns, heirs and legal representatives ("Company
Indemnitees") harmless from and against any and all losses, claims,
damages, liabilities, costs, expenses or deficiencies including,
without limitation, actual attorneys' fees and other costs and expenses
incident to proceedings or investigations or the defense or settlement
of any claim, incurred by or asserted against any Company Indemnitee
due to or resulting from a violation or default by the Subsidiary with
respect to any of the Subsidiary's covenants, obligations or agreements
hereunder and any losses or expenses incurred in connection with, or
payment by the Company of the debts, liabilities and obligations
assumed by the Subsidiary hereunder or the debts, liabilities and
obligations of the Subsidiary arising after the Time of Closing.
Indemnification Procedures. The party seeking indemnification
("Indemnified Party") shall give the indemnifying party ("Indemnifying
Party") notice (a "Claim Notice") of its indemnification claim which
notice shall (i) be in writing, (ii) include the basis for the
indemnification, and (iii) include the amount Indemnified Party
believes is the amount to be indemnified, if reasonably possible.
Indemnifying Party shall be deemed to accept Indemnified Party's claim
unless, within twenty (20) business days after receipt of any Claim
Notice, Indemnifying Party delivers to Indemnified Party notice of non-
acceptance of the indemnification claim, which must (a) be in writing
and (b) include the basis for the disagreement.
The parties shall attempt in good faith to resolve any issues
concerning liability and the amount of such claim, and any issues which
they cannot resolve within thirty (30) days after delivery of the
notice of non-acceptance pursuant to Section 7.2(b) shall be settled by
arbitration in accordance with the rules of the American Bar
Association, by a sole arbitrator located in New York, NY or such other
location as the parties shall agree, whose determination shall be final
and binding on the parties hereto. The arbitration shall be governed
by the United States Arbitration Act, 9 U.S.C. sections 1-16, and
judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The arbitrator shall have the
authority to award legal fees, arbitration costs and other expenses, in
whole or in part, to the prevailing party.
MISCELLANEOUS
Benefit. This Agreement shall be binding upon, and inure to the
benefit of, the Parties hereto and their respective successors,
assignees, heirs and legal representatives.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Amendment, Modification and Waiver. Any Party hereto may waive in
writing any term or condition contained in this Agreement and intended
to be for its benefit; provided, however, that no waiver by any Party,
whether by conduct or otherwise, in any one or more instances, shall be
deemed or construed as a further or continuing waiver of any such term
or condition. Each amendment, modification, supplement or waiver shall
be in writing and signed by the Party or Parties to be charged.
Entire Agreement. This Agreement and the exhibits, schedules and other
documents expressly provided hereunder or delivered herewith represent
the entire understanding of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on date first written above.
CHINA STATIONERY & OFFICE SUPPLY, INC. NINGBO BINBIN STATIONERY CO, LTD.
By: /s/Wei Chenghui /s/Wei Xxxxxxxx
Xxx Chenghui, Chief Executive Officer Wei Chenghui, Chairman
/s/Wei Xxxxxxxx
XXX CHENGHUI, individually
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