AGREEMENT AND PLAN OF REORGANIZATION
THIS
AGREEMENT AND PLAN OF
REORGANIZATION (this “Agreement”) is made as of the 27th day of September, 2007,
by and among SINO-AMERICAN DEVELOPMENT CORPORATION, a Nevada corporation
(“XXXX”), SINO-AMERICAN HOLDINGS, INC., a Nevada corporation (“Sino Holdings”),
Xxxx Xxxxx, Hu Min, Xxxx Xxx Jun and Xxxx Xxx (represented by attorney-in-fact
Xxxx Xxxxx) (collectively, the “Principals”) and the stockholders of XXXX listed
on Schedule A hereto (collectively, the “Stockholders”).
WHEREAS,
the Stockholders purchased
25,005,042 shares from the Principals on December 11, 2006 pursuant to a Stock
Purchase Agreement dated December 11, 2006, and under the above-mentioned Stock
Purchase Agreement, the Stockholders agreed that the subsidiary would be
separated and spun off from XXXX;
WHEREAS,
on December 11, 2006, the
Stockholder purchased an additional 12,505,000 shares of newly issued shares
of
common stock from XXXX pursuant to a Stock Purchase Agreement dated December
11,
2006;
WHEREAS,
XXXX conducted a 17-for-1
reverse stock split which became effective on January 11, 2007;
WHEREAS,
after giving effect to the
reverse stock split, the Stockholders held an aggregate of 2,206,494 shares
of
common stock of XXXX, representing approximately 91.7% of the issued and
outstanding shares of common stock of XXXX;
WHEREAS,
Sino Holdings is a corporation
duly organized and existing under the laws of the State of Nevada, having been
incorporated on June 25, 2007 for purposes of effecting the Spin-off, and is
a
wholly-owned subsidiary of XXXX, a corporation organized and existing under
the
laws of the State of Nevada;
WHEREAS,
the respective Boards of
Directors of Sino Holdings and XXXX xxxx it advisable and in the best interests
of the respective entities and their respective stockholders that Sino Holdings
be separated and spun off from XXXX pursuant to this Agreement and the
applicable provisions of the laws of the State of Nevada, such transaction
sometimes being herein called the “Spin-off”;
WHEREAS,
the Board of Directors of XXXX
has approved and selected a record date of September 28, 2007 (“Record Date”),
and the holders of shares of XXXX on such Record Date shall be eligible to
receive shares in the Spin-off.
NOW,
THEREFORE, for and in
consideration of the premises and of the mutual agreements, representations,
warranties, provisions and covenants herein contained, and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE
I
THE
SPINOFF
1.1 Delivery
of Agreement. On or before the Closing Date (as defined below),
XXXX, Sino Holdings, and the other parties hereto will this Agreement to be
signed, verified and delivered. XXXX shall take all action necessary
to make the Spin-off effective under Nevada law as of the time set forth in
Section 1.2.
1.2 Effective
Time of the Spin-off. The “Effective Time of the Spin-off” shall
be at 5:00 Pacific Time on September 28, 2007. At the Effective Time
of the Spin-off, all shares of Sino Holdings shall be distributed to the
stockholders of XXXX, in accordance with this Agreement, and XXXX shall no
longer hold an ownership interest in the securities of Sino
Holdings.
1.3 No
Change to Articles of Incorporation, Bylaws. At the Effective
Time of the Spin-off:
(a) There
shall be no change to the Articles of Incorporation of XXXX or Sino Holdings
as
in effect prior to the Closing Date;
(b) There
shall be no change to the Bylaws of XXXX or Sino Holdings as in effect prior
to
the Closing Date.
1.4 Changes
in Boards of Directors and Officers.
(a) Upon
the
Effective Time of the Spin-off, the following persons shall resign as directors
of XXXX:
(i) Xxxx
Xxxxx
(ii) Hu
Min
(iii) Xxxx
Xxx
Jun
(iv) Fang
Xxx
Xxxx
(b) Upon
the
Effective Time of the Spin-off, Xxxxx Xxxxxxxx shall be appointed as the sole
director of XXXX.
(c) Upon
the
Effective Time of the Spin-off, Xx. Xxxx Xxxxx shall resign as the Principal
Executive Officer and Principal Accounting Officer of XXXX, and the sole
remaining officers of XXXX shall be as follows:
Xxxxx
Xxxxxxxx President, Chief Financial
Officer
and
Secretary
(d) Upon
the
Effective Time of the Spin-off, the board of directors of Sino Holdings shall
continue to consist of the following persons:
Xxxx
Xxxxx
Hu
Xxx
Xxxx
Wei
Xxx
Xxxx
Xxx
Xxxx
(e) Upon
the
Effective Time of the Spin-off, the officers of Sino Holdings shall be as
follows, and shall serve, subject to the provisions of the Articles of
Incorporation and Bylaws of Sino Holdings, until such officer’s successor is
duly elected and qualified:
Xxxx
Xxxxx Chief
Executive
Officer, President,
Chairman
of the Board, Chief
Financial Officer
Treasurer
and
Secretary
1.5 Certain
Information With Respect to the Capital Stock of XXXX and Sino
Holdings. The respective designations and numbers of outstanding
shares and voting rights of each class of outstanding capital stock of XXXX
and
Sino Holdings as of the date of this Agreement are as follows:
(a) As
of the
date of this Agreement, XXXX has 2,408,000 shares of common stock, $0.001 par
value per share issued and outstanding (the “XXXX Common Stock”);
(b) As
of the
date of this Agreement, Sino Holdings has 2,408,000 shares of common stock,
$0.001 par value per share issued and outstanding (the “Sino Holdings Common
Stock”), and 100% of the shares of Sino Holdings Common Stock is held by
XXXX.
1.6 Effect
of Spin-off. At the Effective Time of the Spin-off, the effect of
the Spin-off shall be as provided in the applicable provisions of the General
Corporation Law of the State of Nevada. Except as herein specifically
set forth, the identity, existence, purposes, powers, objects, franchises,
privileges, rights and immunities of Sino Holdings shall continue unaffected
and
unimpaired by the Spin-off. At the Effective Time of the
Spin-off:
(a) All
of
the shares of common stock of Town House Land Limited, a Hong Kong corporation,
which also constitutes 100% of the issued and outstanding shares of capital
stock of Town House Land Limited, shall be transferred by XXXX to Sino Holdings,
and Sino Holdings shall be deemed for all purposes the successor-in-interest
of
the business which prior to the Closing Date was operated under the subsidiaries
of XXXX;
(b) For
each
one (1) share of XXXX Common Stock held by a XXXX stockholder on the Record
Date, such stockholder shall be entitled to receive one (1) share of Sino
Holdings in the Spin-off;
(c) XXXX
shall no longer hold any shares of Sino Holdings;
(d) The
holders of XXXX Common Stock on the Record Date shall collectively own 100%
of
the issued and outstanding shares of Sino Holdings;
(e) The
Stockholders shall (i) immediately transfer 1,470,906 shares of Sino Holdings
Common Stock received by them in the Spin-off to the Principals pursuant to
Section 2.2 of this Agreement, and (ii) immediately transfer 735,588 shares
of
Sino Holdings Common Stock received by them in the Spin-off to Sino Holdings
for
cancellation pursuant to Section 2.3 of this Agreement.
ARTICLE
II
TRANSFER
AND DELIVERY OF SHARE CERTIFICATES; SHARE CANCELLATION
2.1 Distribution
of Sino Holdings Shares. At or after the Effective Time of the
Spin-off and at the Closing:
(a) XXXX
shall cause a list of record and beneficial stockholders of XXXX to be generated
as of the Record Date;
(b) Sino
Holdings shall cause its stockholder ledger to be immediately updated to reflect
the new holders of Sino Holdings common stock as a result of the Spin-off,
which
ledger shall be reviewed, inspected and certified by the officers of Sino
Holdings.
(c) Based
upon and in reliance on the updated share ledger of Sino Holdings, Sino Holdings
shall accept delivery of 100% of the shares of common stock held by XXXX
represented by a single stock certificate, which certificate shall be cancelled,
and the shares represented thereby shall be distributed to the stockholders
of
XXXX such that each stockholder of XXXX shall receive one (1) share of common
stock of Sino Holdings for each one (1) share of common stock of XXXX held
by
such stockholder on the Record Date.
(d) Sino
Holdings shall cause its stockholder ledger to be immediately updated to reflect
the new holders of Sino Holdings common stock as a result of the Spin-off,
which
ledger shall be reviewed, inspected and certified by the officers of Sino
Holdings.
(e) Share
certificates representing shares of Sino Holdings to be distributed to the
XXXX
stockholders shall be mailed to the XXXX stockholders to their addresses as
set
forth in the stockholder records of XXXX, or alternatively if no share
certificates are prepared and issued, Sino Holdings shall prepare letters to
stockholders setting forth the number of shares held by such
stockholder.
2.2 Transfer
of Certain Shares. On the Closing Date and immediately following
the Effective Time of the Spin-off, the Stockholders agree that 1,470,906 shares
of common stock of Sino Holdings received by the Stockholders in the Spin-off
shall be immediately transferred to the Principals, in the amounts set forth
opposite the names of each of the Principals on Schedule
B. The Stockholders agree to execute and deliver any documents
reasonably requested by counsel to XXXX to effect such transfer, including
originally executed stock powers. The parties agree that the Sino
Holdings shares, for purposes of this Section 2.2 shall be deemed fungible
and
that the Stockholders may transfer their shares to any one or more of the
Principals, so long as the aggregate number of shares transferred to each of
the
Principals is equal to the quantities set forth on Schedule
B.
2.3 Share
Cancellation. On the Closing Date and immediately
following the Effective Time of the Spin-off, the Stockholders agree that
735,588 shares of Sino Holdings Common Stock received by the Stockholders in
the
Spin-off shall be immediately transferred to Sino Holdings, for
cancellation. The Stockholders agree to execute and deliver any
documents reasonably requested by Sino Holdings to effect such transfer and
cancellation, including originally executed stock powers. Sino
Holdings hereby agrees that the shares of Sino Holdings Common Stock delivered
to it by the Stockholders for cancellation pursuant to this Section 2.3 shall
be
cancelled immediately on the Closing Date, and such cancellation shall be
immediately reflected on the share ledger of Sino Holdings.
ARTICLE
III
CLOSING
3.1 On
September 28, 2007, or such other date as the parties hereto may agree (the
“Closing Date”), the parties shall take all actions necessary (i) to effect the
Spin-off and (ii) to effect the conversion and delivery of securities referred
to in Article II (the “Closing”). The Closing shall take
place at the offices of XXXX, unless another place is agreed to in writing
by
the parties. On the Closing Date the parties hereto shall perform all
of their respective obligations in connection with all other transactions
contemplated by this Agreement, to occur at or upon the Closing, including
delivery of the following items:
(a) XXXX,
Sino Holdings, the Principals and the Stockholders shall each deliver an
executed counterpart of this Agreement;
(b) XXXX
shall deliver a share certificate representing 100% of its interest in Town
House Land Limited to Sino Holdings, with an originally executed stock power
endorsed to Sino Holdings;
(c) XXXX
shall deliver the minute book of Sino Holdings to the officers of Sino Holdings,
including the definitive share ledger of Sino Holdings as of the Closing
Date;
(d) The
Stockholders shall deliver executed stock powers to accompany the share
certificates of Sino Holdings common stock distributed to them, assigning their
interests in such Sino Holdings common stock to the Principals and to Sino
Holdings pursuant to Section 2.2 and 2.3 of this Agreement,
respectively;
(e) Sino
Holdings shall cause its share ledger, and other books and records of the
company as necessary, shall immediately reflect the cancellation of shares
of
Sino Holdings delivered by the Stockholders to Sino Holdings pursuant to Section
2.3;
(f) Xx.
Xxxx
Xxxxx shall deliver his letter of resignation to XXXX, resigning from his
position as Principal Executive Officer and Principal Accounting Officer of
XXXX, effective on the Closing Date.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
4.1 XXXX
hereby represents and warrants that all of the following representations and
warranties set forth in this Section 4.1 shall be true and correct at the time
of the Closing:
(a) Authorization. This
Agreement has been duly executed and delivered by XXXX and constitutes the
valid
and binding obligation of such party, enforceable against such party in
accordance with its terms, except that (i) such enforcement may be subject
to
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally, (ii) the remedy of specific performance, injunctive
relief and other equitable remedies are subject to certain equitable defenses
and to the discretion of the court before which any proceedings may be brought
and (iii) rights to indemnification hereunder may be limited under applicable
securities laws (the “Equitable Exceptions”). XXXX has full corporate
power, capacity and authority to execute this Agreement and all other agreements
and documents contemplated hereby.
(b) Organization,
Existence and Good Standing of the Company. XXXX is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation with all requisite corporate power and authority
to
own, to lease and to operate its properties and to carry on its business as
now
being conducted. XXXX is duly qualified or licensed as a foreign
corporation or other applicable entity and in good standing in each jurisdiction
in which the character or location of the property owned, leased or operated
by
it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to be so authorized or qualified would
not
have a Material Adverse Effect.
(c) Capital
Stock of XXXX. The authorized capital stock of XXXX consists of
150,000,000 shares of common stock, par value $0.001, and no shares of preferred
stock, of which a total of 2,408,000 shares of common stock are issued and
outstanding as of the date hereof. All of the shares of SOAM’s issued
Common Stock have been validly issued and are fully paid and nonassessable,
and
no holder thereof is entitled to any preemptive rights, statutory or
otherwise. There are no outstanding conversion or exchange rights,
subscriptions, options, warrants or other arrangements or commitments obligating
XXXX to issue any shares of capital stock or other securities or to purchase,
to
redeem or otherwise to acquire any shares of capital stock or other securities,
or to pay any dividend or make any distribution in respect
thereof.
(d) Subsidiaries. Except
for Sino Holdings and Town House Land Limited (and the subsidiaries of such
entity), XXXX does not presently own, of record or beneficially, or control
directly or indirectly, any capital stock, securities convertible into capital
stock or any other equity interest in any corporation, association or business
entity nor is XXXX, directly or indirectly, a participant in any joint venture,
partnership, limited liability company or other non-corporate
entity.
4.2 Sino
Holdings hereby represents and warrants that all of the following
representations and warranties set forth in this Section 4.2 shall be true
and
correct at the time of the Closing:
(a) Due
Organization. Sino Holdings is duly organized, validly existing
and in good standing under the laws of the State of Nevada, as applicable,
and
is duly authorized and qualified under all applicable laws, regulations, and
ordinances of public authorities to carry on its businesses in the places and
in
the manner as now conducted except where the failure to be so authorized or
qualified would not have a Material Adverse Effect.
(b) Sino
Holdings Common Stock. The Sino Holdings Common Stock to be
delivered to the stockholders of XXXX at the Closing shall constitute valid
and
legally issued shares of Sino Holdings Common Stock, fully paid and
nonassessable, and (a) will be owned free and clear of all Liens created by
Sino
Holdings and (b) except as described in this Agreement, will be legally
equivalent in all respects to the Sino Holdings Common Stock issued and
outstanding as of the date hereof.
(c) Validity
of Obligations. The execution and delivery of this Agreement by
Sino Holdings and the performance by Sino Holdings of the transactions
contemplated herein have been duly and validly authorized by the Board of
Directors of Sino Holdings, and this Agreement and the transaction contemplated
hereby been duly and validly authorized by all necessary corporate action,
duly
executed and delivered at or prior to the Closing and shall be the legal, valid
and binding obligations of each of Sino Holdings to the extent that it is a
party hereto, enforceable against Sino Holdings in accordance with their
respective terms, subject to the Equitable Exceptions.
(d) Authorization. The
representatives of Sino Holdings executing this Agreement have the corporate
authority to enter into and to bind Sino Holdings to the terms of this
Agreement. Sino Holdings has the full legal right, power and
authority to enter into this Agreement and conduct the Spin-off.
(e) Capital
Stock of Sino Holdings. The authorized capital stock of Sino
Holdings consists of 150,000,000 shares of common stock, par value $0.001,
and
no shares of preferred stock, of which a total of 2,408,000 shares of common
stock are issued and outstanding as of the date hereof. All of the
shares of Sino Holdings Common Stock have been validly issued and are fully
paid
and nonassessable, and are held of record by XXXX. Neither XXXX nor
any other person is entitled to any preemptive rights, statutory or
otherwise. There are no outstanding conversion or exchange rights,
subscriptions, options, warrants or other arrangements or commitments obligating
Sino Holdings to issue any shares of capital stock or other securities or to
purchase, to redeem or otherwise to acquire any shares of capital stock or
other
securities, or to pay any dividend or make any distribution in respect
thereof.
4.3 The
Principals hereby represent and warrant, jointly and severally, that all of
the
following representations and warranties set forth in this Section 4.3 shall
be
true and correct at the time of the Closing:
(a) Sino
Holdings Representation and Warranties. To the best of our
knowledge, and in our capacity as members of the board of directors and
management of XXXX and Sino Holdings, the representations and warranties made
by
XXXX and Sino Holdings in Sections 4.1 and 4.2 are true and
correct.
(b) Validity
of Obligations. The execution and delivery of this Agreement by
the Principals and the performance by the Principals of the transactions
contemplated herein have been duly and validly authorized, and this Agreement
and the transaction contemplated hereby been duly and validly authorized by
all
necessary action, duly executed and delivered at or prior to the Closing and
shall be the legal, valid and binding obligations of each of the Principals
to
the extent that it is a party hereto, enforceable against each Principal in
accordance with their respective terms, subject to the Equitable
Exceptions.
(c) Noncontravention. Neither
the execution and the delivery of any Transaction Document, nor the consummation
of the transactions contemplated thereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court to which
either the Company or Subsidiary is subject or any provision of the charter
or
bylaws of the Company or Subsidiary, or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which either the Company or Subsidiary is a party or by which
it
is bound or to which any of its assets is subject (or result in the imposition
of any Security Interest upon any of its assets). To the knowledge of
the Company, and other than in connection with the provisions of the Nevada
Revised Statutes, the Securities Exchange Act of 1934 (the “Exchange Act”), the
Securities Act of 1933, as amended (the “Securities Act”), and any state
securities laws, neither the Company nor Subsidiary needs to give any notice
to,
make any filing with, or obtain any authorization, consent, or approval of
any
government or governmental agency in order for the parties to consummate the
transactions contemplated by the Transaction Documents.
AGREEMENT
AND PLAN OF REORGANIZATION
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9
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(d) Subsidiaries. After
giving effect to the Spin-Off, XXXX will have no subsidiaries. SOAM’s
Board of Directors has approved the Spin-Off of Sino Holdings to its
stockholders and in connection therewith has declared a dividend of all of
the
issued and outstanding stock of Sino Holdings payable to the XXXX stockholders
of record as of September 28, 2007. The distribution of stock
certificates representing the Sino Holdings Stock shall be completed and the
dividend paid within sixty (60) days following the Closing
Date. Other than its ownership of Sino Holdings, XXXX has no
assets. As of the date hereof and the Closing Date, no person or
entity has any lien, security interest or claim against SOAM’s assets, whether
now existing or hereafter acquired.
(e) Litigation. There
is no action, suit, proceeding, or claim, pending or to the knowledge of the
Principals, threatened, and no investigation by any court or government or
governmental agency or instrumentality, domestic or foreign, pending or to
the
knowledge of the Principals, threatened, against XXXX or Sino Holdings, nor
is
there any outstanding order, writ, judgment, stipulation, injunction, decree,
determination, award, or other order of any court or government or governmental
agency or instrumentality, domestic or foreign, against XXXX or Sino
Holdings.
(f) Material
Adverse Change. Since December 31, 2006 and up to Closing Date,
other than the actions contemplated in this Agreement prior to Closing, there
has been no material and adverse effect on the results of operations, assets,
business or condition (financial or otherwise) of XXXX or Sino Holdings, except
as disclosed in the financial statements of XXXX as filed with the SEC during
such period.
(g) Taxes. XXXX
has timely and accurately filed, or caused to be timely and accurately filed,
all tax returns required to be filed by it, and has paid, collected or withheld,
or caused to be paid, collected or withheld, all amounts of taxes required
to be
paid, collected or withheld, other than such Taxes for which adequate reserves
have been established and which are being contested in good faith. There are
no
claims or assessments pending against XXXX for any alleged deficiency in any
tax, there are no pending or, to the knowledge of the Principals, threatened
audits or investigations for or relating to any liability in respect of any
taxes, and XXXX or the Principals has not been notified in writing of any
proposed tax claims or assessments against XXXX (other than in each case, claims
or assessments for which adequate reserves have been established and which
are
being contested in good faith). XXXX has not executed any waivers or
extensions of any applicable statute of limitations to assess any amount of
taxes. There are no outstanding requests by XXXX for any extension of
time within which to file any tax return or within which to pay any amounts
of
taxes shown to be due on any tax return. To the knowledge of the
Principals, there are no liens for taxes on the assets of XXXX except for
statutory liens for current taxes not yet due and payable. There are
no outstanding powers of attorney enabling any party to represent XXXX with
respect to taxes. Other than with respect to XXXX, XXXX or Sino
Holdings are not liable for taxes of any other person or entity, or is not
currently under any contractual obligation to indemnify any person or entity
with respect to any amounts of taxes, or is a party to any tax sharing agreement
or any other agreement providing for payments by XXXX or Sino Holdings with
respect to any amounts of taxes.
AGREEMENT
AND PLAN OF REORGANIZATION
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10
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(h) Financial
Statements and SEC Filings.
(i) The
consolidated financial statements (hereinafter referred to collectively as
the
“Audited Financial Statements”) of XXXX and its consolidated subsidiaries
contained in its Forms 10-KSB with respect to the fiscal years ended December
31, 2006, 2005 and 2004, are true and correct and have been prepared in
conformity with GAAP consistently applied throughout the periods to which such
financial statements relate. The Audited Financial Statements fairly
present, in all material respects in conformity with such principles as so
applied, the consolidated financial position and results of operations and
cash
flows of XXXX, at the dates shown and for the periods therein
specified. The balance sheet constituting a part of the Audited
Financial Statements fairly present in all material respects all consolidated
liabilities of XXXX, on a consolidated basis, of the types normally reflected
in
balance sheets as and at the respective dates thereof.
(ii) The
consolidated financial statements (hereinafter referred to as the “Interim
Financial Statements” and, together with the Audited Financial Statements,
herein referred to as the “Historical Financial Statements”) of the Company and
its consolidated subsidiaries contained in its Forms 10-QSB with respect to
the
quarters ending March 31, 2007 and June 30, 2007 are true and correct and have
been prepared in conformity with GAAP consistently applied throughout the
periods to which such financial statements relate. The Interim
Financial Statements fairly present in all material respects in conformity
with
such principles so applied, the consolidated financial position and results
of
operations and cash flows of XXXX, on a consolidated basis, at the dates shown
and for the periods therein specified. The balance sheets
constituting a part of the Interim Financial Statements fairly present, in
all
material respects, all liabilities of XXXX, on a consolidated basis of the
types
normally reflected in balance sheets as and at the respective date
thereof.
AGREEMENT
AND PLAN OF REORGANIZATION
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11
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(iii) XXXX
is a
reporting company registered under Section 12(g) of the Exchange
Act. All such required forms, reports and documents (including those
that XXXX may file subsequent to the date hereof) are referred to herein as
the
“SEC Reports.” As of the Closing Date, none of the SEC Reports are
under review nor are they the subject of comment letters which have not been
resolved. As of their respective dates, the SEC Reports (i) were
prepared in accordance with the requirements of the Securities Act or the
Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such the SEC Reports, and (ii) did not at the time
they
were filed (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Each of the
principal executive officer of the Company and the principal financial officer
of the Company (as defined under the Xxxxxxxx-Xxxxx Act of 2002), or each former
principal executive officer of the Company and each former principal financial
officer of the Company, as applicable, has made the certifications required
by
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations of the SEC promulgated thereunder with respect to the SEC Reports
pursuant to the Exchange Act, when applicable, and the content of such
certifications were true and correct when made.
(iv) There
has
never been any stop order issued or, to the knowledge of the Principals, any
administrative investigation or proceeding undertaken by the SEC with respect
to
XXXX and its directors and officers.
(i) Undisclosed
Liabilities. Except otherwise disclosed in this Agreement or
disclosed in SOAM’s historical financial statements, XXXX does not have any
liabilities, whether accrued, absolute, contingent, or otherwise, whether due
or
to become due and whether the amount thereof is readily ascertainable or not,
other than liabilities which, individually or in the aggregate, would not have
a
material adverse effect, or any unrealized or anticipated losses from any
unfavorable commitments, other than those which, individually or in the
aggregate, would not have a material adverse effect.
(j) Broker’s
Fees. The Principals are not parties to any advisory, finder’s or
broker’s agreement with respect to transactions contemplated by this
Agreement.
(k) Compliance
with Law. XXXX and Sino Holdings are in material compliance with
all laws, ordinances and governmental rules and regulations, whether foreign,
federal, state or local, to which XXXX and Sino Holdings are
subject.
(l) No
Liabilities. Upon Closing and execution and delivery of the
Agreement, XXXX will have no liabilities whatsoever.
AGREEMENT
AND PLAN OF REORGANIZATION
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12
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(m) Material
Misstatements and Omissions. As of the Closing Date, the
representations and warranties of the Principals do not contain any untrue
statement of a material fact and do not omit to state a material fact necessary
to make the statements or facts contained herein or therein, in light of the
circumstances made, not misleading.
(n) Ownership. Prior
to the Spin-off, XXXX will own all of the outstanding stock of Sino
Holdings. At all times prior to the Spin-off, no person other than
XXXX has owned, or will own, any of the outstanding stock of Sino
Holdings.
(i) Sino
Holdings was formed by XXXX solely for the purpose of engaging in the
transaction contemplated by the Agreement.
(ii) There
were not as of the date of the Agreement, and there will not be at the Closing
Date, any outstanding or authorized options, warrants, convertible securities,
calls, rights, commitments or any other agreements of any character that Sino
Holdings is a party to, or may be bound by, and that require Sino Holdings
to
issue, to transfer, to sell, to purchase, to redeem or to acquire any shares
of
its capital stock or any securities or rights convertible into, exchangeable
for, or evidencing the right to subscribe for or acquire, any shares of its
capital stock.
(iii) As
of the date of this Agreement and the Closing Date, except for obligations
or
liabilities incurred in connection with (A) its incorporation or organization
and (B) the transactions contemplated thereby and in this Agreement, Sino
Holdings has not and will not have incurred, directly or indirectly through
any
subsidiary, any obligations or liabilities or engaged in any business or
activities of any type or kind whatsoever or entered into any agreement or
arrangements with any person or entity.
(iv) Prior
to the Closing Date, Sino Holdings did not own any asset other than an amount
of
cash necessary to incorporate Sino Holdings and to pay the expenses of the
Spin-off attributable to Sino Holdings and such assets as were necessary to
perform its obligations under this Agreement.
(o) Inter-corporate
Indebtedness. There is no inter-corporate indebtedness existing
between Sino Holdings and XXXX or between XXXX and any other subsidiary that
was
issued, acquired or will be settled at a discount.
(p) Not
an
Investment Company. Neither Sino Holdings nor Sino Holdings is an
investment company as defined in Section 368(a)(2)(F)(iii) and (iv) of the
Internal Revenue Code.
AGREEMENT
AND PLAN OF REORGANIZATION
-
13
-
4.4 The
Stockholders hereby represent and warrant, jointly and severally, that all
of
the following representations and warranties set forth in this Section 4.4
shall
be true and correct at the time of the Closing:
(a) Validity
of Obligations. The execution and delivery of this Agreement by
the Stockholders and the performance by the Stockholders of the transactions
contemplated herein have been duly and validly authorized by them, and this
Agreement and the transaction contemplated hereby been duly and validly
authorized by all necessary action, duly executed and delivered at or prior
to
the Closing and shall be the legal, valid and binding obligations of each of
the
Stockholders to the extent that it is a party hereto, enforceable against each
Stockholder in accordance with their respective terms, subject to the Equitable
Exceptions.
ARTICLE
V
COVENANTS
OF THE PARTIES
5.1 Cooperation. The
Principals, the Stockholders, XXXX and Sino Holdings shall each deliver or
cause
to be delivered to the other on the Closing Date, and at such other times and
places as shall be reasonably agreed to, such additional instruments as the
other may reasonably request for the purpose of carrying out this
Agreement. Sino Holdings and the Principals will cooperate and use
its reasonable efforts to have the present officers, directors and employees
thereof cooperate with XXXX on and after the Closing Date in furnishing
information, evidence, testimony and other assistance in connection with any
tax
return filing obligations, securities filing obligations, responses to SEC
or
other governmental inquiries, actions, proceedings, arrangements or disputes
of
any nature with respect to matters pertaining to all periods prior to the
Closing Date.
5.2 Post-Closing
Actions. After the Closing Date, Sino Holdings agrees to
undertake all appropriate actions to provide its stockholders with information
and documentation to which such stockholders are entitled in accordance with
its
bylaws, Articles of Incorporation, and Nevada corporation law.
5.3 XXXX
Annual Report for 2007. After the closing date, Sino Holdings
agrees to provide any and all documentation and information reasonably requested
by XXXX as needed in order to prepare and file its Annual Report on Form 10-KSB
for the year ended December 31, 2007, including but not limited to books,
records, ledgers, accounts, financial databases, and other accounting
data. Sino Holdings further agrees and covenants that all such
information furnished to XXXX shall not contain any untrue statement of a
material fact and shall not omit to state a material fact necessary to make
the
statements or facts contained herein or therein, in light of the circumstances
made, not misleading, and that any loss as a result of the violation of the
foregoing covenant shall be an indemnifiable loss under Article VI
hereof.
AGREEMENT
AND PLAN OF REORGANIZATION
-
14
-
ARTICLE
VI
INDEMNIFICATION
The
Principals and Sino Holdings each make the following covenants that are
applicable to them, respectively.
6.1 XXXX
Losses. The Principals and Sino Holdings each hereby jointly and
severally agree to indemnify XXXX for any losses borne by XXXX as a result
of
(i) any representation or warranty made by the Principals or Sino Holdings
in or
pursuant to this Agreement being untrue or incorrect in any respect and without
any regard to any “materiality,” “material adverse effect,” “substantial
compliance” or similar exception or qualifier, (ii) any losses resulting from
the gross negligence or willful misconduct of the Principals from December
11,
2006 through the Closing Date, (iii) any failure by Sino Holdings or the
Principals to observe or to perform its covenants and agreements set forth
in
this Agreement or in any other agreement or document executed by it in
connection with the transactions contemplated hereby, (iv) any liability for
taxes claimed or asserted by any taxing authority, relating to conduct of the
business of XXXX prior to the Closing Date, (v) any non-compliance with
applicable laws by XXXX prior to the Closing Date. For purposes of
this Agreement and this Article VI, “losses” shall include any damage, loss,
injury, claims of actions, costs, damages, expenses, attorneys’ fees and court
costs, whether incurred by settlement or otherwise, and other fees and penalties
payable by XXXX and its successors and assigns, which are suffered or incurred
by them (regardless of whether such losses relate to any third party claim),
directly or indirectly, arising or resulting from or connected with any action
(or lack of action) or decision of XXXX or its executive officers and
directors.
6.2 Indemnification
for Certain Tax Matters. The Principals shall indemnify, defend
and hold harmless XXXX and the Stockholders from and against all tax liabilities
and related losses of Sino Holdings or the Principals incurred or accrued prior
to the Effective Date, and the liability of Sino Holdings or the Principals
with
respect to all taxes, including interest and additions to taxes, resulting
from
the Spin-off under this Agreement.
6.3 Indemnified
Parties. With respect to XXXX losses and the matters described in
this Article VI, each of the Principals and Sino Holdings shall be the
“Indemnifying Party” and XXXX and the Stockholders and their respective
directors, officers, employees, representatives, agents and attorneys shall
be
the “Indemnified Party.”
AGREEMENT
AND PLAN OF REORGANIZATION
-
15
-
6.4 Right
to Defend. Upon receipt of notice of any suit, action,
investigation, claim or proceeding for which indemnification might be claimed
by
an Indemnified Party, the Indemnified Party shall be entitled to defend, contest
or otherwise protect against any such suit, action, investigation, claim or
proceeding, with the costs and expenses of such defense to be borne by the
Indemnifying Party, and the Indemnifying Party must cooperate in any such
defense or other action. The Indemnifying Party shall have the right,
but not the obligation, to participate at its own expense in defense thereof
by
counsel of its own choosing, but the Indemnified Party shall be entitled to
control the defense unless otherwise determined by the Indemnified Party or
if
the Indemnified Party fails to assume defense of the matter. If the Indemnified
Party shall fail to defend, contest or otherwise protect in a timely manner
against any such suit, action, investigation, claim or proceeding, then the
Indemnifying Party shall have the right, but not the obligation, thereafter
to
defend, to contest or otherwise to protect against the same and make any
compromise or settlement thereof, and shall pay all costs thereof including,
without limitation, reasonable attorneys’ fees, disbursements and all amounts
paid as a result of such suit, action, investigation, claim or proceeding or
the
compromise or settlement thereof; provided, however, that the
Indemnifying Party must send a written notice to the Indemnified Party of any
such proposed settlement or compromise, which settlement or compromise the
Indemnified Party may reject, in its reasonable judgment, within thirty (30)
days of receipt of such notice. Failure to reject such notice within
such thirty (30) day period shall be deemed an acceptance of such settlement
or
compromise. The Indemnified Party shall have the right to effect a
settlement or compromise over the objection of the Indemnifying Party;
provided, however, that, if the Indemnifying Party has assumed the
defense from the Indemnified Party upon the election of the Indemnified Party,
then the Indemnified Party waives any right to indemnity therefor. If
the Indemnifying Party undertakes the defense of such matters upon the election
of the Indemnified Party, then the Indemnified Party shall not, so long as
the
Indemnifying Party does not abandon the defense thereof, be entitled to recover
from the Indemnifying Party any legal or other expenses subsequently incurred
by
the Indemnified Party in connection with the defense thereof other than the
reasonable costs of investigation undertaken by the Indemnified Party with
the
prior written consent of the Indemnifying Party.
ARTICLE
VII
GENERAL
7.1 Survival
of Covenants, Agreements, Representations and Warranties.
(a) Covenants
and Agreements. All covenants and agreements made hereunder or
pursuant hereto or in connection with the transactions contemplated hereby
shall
survive the Closing and shall continue in full force and effect thereafter
according to their terms without limit as to duration.
(b) Representations
and Warranties. All representations and warranties contained
herein shall survive the Closing and shall continue in full force and effect
thereafter for a period of three (3) years after the Closing Date.
AGREEMENT
AND PLAN OF REORGANIZATION
-
16
-
(c) Claims
Made Prior to Expiration. Notwithstanding the foregoing survival
period, the termination of the survival period shall not affect the rights
of an
Indemnified Party in respect of any claim made by any party with specificity,
in
good faith and in writing to the Indemnifying Party prior to the expiration
of
the applicable survival period.
7.2 Successors
and Assigns. This Agreement and the rights of the parties
hereunder may not be assigned (except by operation of law) and shall be binding
upon and shall inure to the benefit of the parties hereto, the successors of
XXXX and Sino Holdings, and the heirs and legal representatives of the
Principals and Stockholders.
7.3 Entire
Agreement. This Agreement (including the schedules, exhibits and
annexes attached hereto) and the documents delivered pursuant hereto constitute
the entire agreement and understanding among the Principals, the Stockholders,
Sino Holdings and XXXX, and supersede any prior agreement and understanding
relating to the subject matter of this Agreement. This Agreement,
upon execution, constitutes a valid and binding agreement of the parties hereto
enforceable in accordance with its terms, and this Agreement and the Schedules
hereto may be modified or amended only by a written instrument executed by
the
parties, acting through their respective officers, duly authorized by their
respective Boards of Directors (as applicable).
7.4 Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original and all of which together shall constitute
but
one and the same instrument.
7.5 Expenses. Each
party to this Agreement shall bear its own expenses with respect to the
negotiation, drafting, execution, delivery and performance of this
Agreement.
AGREEMENT
AND PLAN OF REORGANIZATION
-
17
-
7.6 Notices. All
notices of communication required or permitted hereunder shall be in writing
and
may be given by (a) depositing the same in United States mail, addressed to
the
party to be notified, postage prepaid and registered or certified with return
receipt requested, (b) delivering the same in person to an officer or agent
of
such party or (c) sending a facsimile of the same with electronic confirmation
of receipt.
(i) If
to SAOM, addressed to them at:
|
|
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
|
|
|
Xxx
Xxxxxxx, XX 00000
|
|
|
Facsimile
No. (000) 000-0000
|
|
|
Attn: Xxxxx
Xxxxxxxx
|
(ii) If
to the
Stockholders, addressed to them at:
| Sino-American Development Corporation | |
| 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | |
| Xxx Xxxxxxx, XX 00000 | |
| Facsimile No. (000) 000-0000 | |
| Attn: Xxxxx Xxxxxxx |
(iii) If to Sino Holdings, addressed to:
|
|
0000
Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
|
| Xxxxxxxx, XX 00000 |
|
|
Attn:
Xxxx Xxxxx, CEO
|
(iv) If to the Principals, addressed thereto at the address set forth on
Schedule B.
or
to
such other address or counsel as any party hereto shall specify pursuant to
this
Section 7.6 from time to time.
AGREEMENT
AND PLAN OF REORGANIZATION
-
18
-
7.7 GOVERNING
LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. THE PARTIES
HERETO EXPRESSLY CONSENT AND AGREE THAT ANY DISPUTE, CONTROVERSY, LEGAL ACTION
OR OTHER PROCEEDING THAT ARISES UNDER, RESULTS FROM, CONCERNS OR RELATES TO
THIS
AGREEMENT MAY BE BROUGHT IN THE FEDERAL AND STATE COURTS IN AND OF THE STATE
OF
CALIFORNIA AND ACKNOWLEDGE THAT THEY WILL ACCEPT SERVICE OF PROCESS BY
REGISTERED OR CERTIFIED MAIL OR THE EQUIVALENT DIRECTED TO THEIR LAST KNOWN
ADDRESS AS DETERMINED BY THE OTHER PARTY IN ACCORDANCE WITH THIS AGREEMENT
OR BY
WHATEVER OTHER MEANS ARE PERMITTED BY SUCH COURTS. THE PARTIES HERETO
HEREBY ACKNOWLEDGE THAT SAID COURTS HAVE JURISDICTION OVER ANY SUCH DISPUTE
OR
CONTROVERSY, AND THAT THEY HEREBY WAIVE ANY OBJECTION TO PERSONAL JURISDICTION
OR VENUE IN THESE COURTS OR THAT SUCH COURTS ARE AN INCONVENIENT
FORUM. ALL REMEDIES AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE SHALL
BE CUMULATIVE AND MAY BE ENFORCED CONCURRENTLY OR FROM TIME TO TIME AND, SUBJECT
TO THE EXPRESS TERMS OF THIS AGREEMENT, THE ELECTION OF ANY REMEDY OR REMEDIES
SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT TO PURSUE ANY OTHER AVAILABLE
REMEDIES.
7.8 Exercise
of Rights and Remedies. Except as otherwise provided herein, no
delay of or omission in the exercise of any right, power or remedy accruing
to
any party as a result of any breach or default by any other party under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed as a waiver of or acquiescence in any such breach or default, or
of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
7.9 Reformation
and Severability. If any provision of this Agreement shall be
invalid, illegal or unenforceable, then it shall, to the extent possible, be
modified in such manner as to be valid, legal and enforceable but so as to
most
nearly retain the intent of the parties, and if such modification is not
possible, then such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
7.10 Remedies
Cumulative. No right, remedy or election given by any term of
this Agreement shall be deemed exclusive but each shall be cumulative with
all
other rights, remedies and elections available at law or in
equity.
7.11 Specific
Performance; Other Rights and Remedies. Each party recognizes and
agrees that in the event the other party or parties should refuse to perform
any
of its or their obligations under this Agreement, the remedy at law would be
inadequate and agrees that for breach of such provisions, each party shall,
in
addition to such other remedies as may be available to it at law or in equity,
be entitled to injunctive relief and to enforce its rights by an action for
specific performance to the extent permitted by applicable law. Each
party hereby waives any requirement for security or the posting of any bond
or
other surety in connection with any temporary or permanent award of injunctive,
mandatory or other equitable relief.
AGREEMENT
AND PLAN OF REORGANIZATION
-
19
-
7.12 Captions. The
headings of this Agreement are inserted for convenience only, shall not
constitute a part of this Agreement or be used to construe or interpret any
provision hereof.
[Remainder
of page intentionally left blank]
AGREEMENT
AND PLAN OF REORGANIZATION
-
20
-
IN
WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above
written.
XXXX:
By: /s/
Xxxx Xxxxx
Xxxx
Xxxxx
Principal
Executive
Officer
By: /s/
Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx
President
SINO
HOLDINGS:
SINO-AMERICAN
HOLDINGS,
INC.
By: /s/
Xxxx Xxxxx
Xxxx
Xxxxx
Principal
Executive
Officer
PRINCIPALS:
/s/ Xxxx Xxxxx
Xxxx
Xxxxx
/s/
Hu
Xxx
Xx
Min
/s/
Xxxx Xxx
Xxx
Xxxx
Wei Jun
/s/
Xxxx
Xxxxx
Xxxx
Xxxxx as attorney-in-fact
for
and
on behalf of Xxxx Xxx
AGREEMENT
AND PLAN OF REORGANIZATION
-
21
-
STOCKHOLDERS:
|
/s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
|
/s/
Xxxxx X. Xxxxxxxxxx
Xxxxx
X. Xxxxxxxxxx
|
|
/s/
Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx
|
/s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx
|
|
/s/
Xxxxxxx Xxxxxxxx
Xxxxxxx
Xxxxxxxx
|
/s/
Xxxxx Xxxxxxxxxx, Xx.
Xxxxx
Xxxxxxxxxx, Xx.
|
|
/s/
Xxxx Xxxxxxx
Xxxx
Xxxxxxx
|
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
|
|
/s/
Xxxxx Xxxxxxxxx
Xxxxx
Xxxxxxxxx
|
/s/
Xxxx X. Xxxxxxx
Xxxx
X. Xxxxxxx
|
|
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx
X. Xxxxxxxx
|
/s/
Xxxx Xxxxx
Xxxx
Xxxxx
|
|
|
/s/
Xxx Xxxxxx
Xxx
Xxxxxx
|
|
|
/s/
Xxxx Xxxx
Xxxx
Xxxx
|
|
|
/s/
Vintage Filings, LLC
Vintage
Filings, LLC
|
|
|
/s/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
|
|
|
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
|
|
|
/s/
Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx
|
|
|
/s/
Xxxxxx Xxxxxxxx
Xxxxxx
Xxxxxxxx
|
|
|
/s/
Xxxxxx Xxxxxxx
Xxxxxx
Xxxxxxx
|
|
|
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
|
AGREEMENT
AND PLAN OF REORGANIZATION
-
22
-
SCHEDULE
A
STOCKHOLDERS
|
Name
of Stockholder:
|
Shares
of Sino Holdings Common Stock to be Cancelled
|
Shares
of Sino Holdings Common Stock to be Transferred to
Principals
|
||||||
|
Xxxxx
X. Xxxxxxxxxx
|
407,872
|
815,607
|
||||||
|
Xxxxxx
Xxxxx
|
55,077
|
110,135
|
||||||
|
Xxxxx
Xxxxxxxxxx, Xx.
|
36,718
|
73,424
|
||||||
|
Xxxxxxx
X. Xxxxx
|
6,120
|
12,237
|
||||||
|
Xxxx
X. Xxxxxxx
|
12,239
|
24,475
|
||||||
|
Xxxx
Xxxxx
|
48,957
|
97,898
|
||||||
|
Xxx
Xxxxxx
|
1,224
|
2,448
|
||||||
|
Xxxx
Xxxx
|
11,016
|
22,028
|
||||||
|
Vintage
Filings, LLC
|
30,598
|
61,186
|
||||||
|
Xxxxx
Xxxxxxx
|
15,299
|
30,593
|
||||||
|
Xxxxx
Xxxxx
|
15,299
|
30,593
|
||||||
|
Xxxxxxx
Xxxxx
|
12,239
|
24,475
|
||||||
|
Xxxxxx
Xxxxxxxx
|
2,448
|
4,895
|
||||||
|
Xxxxxx
Xxxxxxx
|
2,448
|
4,895
|
||||||
|
Xxxxx
Xxxxx
|
6,120
|
12,237
|
||||||
|
Xxxxx
Xxxxxxx
|
9,179
|
18,356
|
||||||
|
Xxxxx
Xxxxxxxx
|
24,479
|
48,949
|
||||||
|
Xxxxxxx
Xxxxxxxx
|
12,239
|
24,475
|
||||||
|
Xxxx
Xxxxxxxx
|
12,239
|
24,475
|
||||||
|
Xxxx
Xxxxxxx
|
9,179
|
18,356
|
||||||
|
Xxxxx
Xxxxxxxxx
|
2,142
|
4,283
|
||||||
|
Xxxxxx
X. Xxxxxxxx
|
2,448
|
4,895
|
||||||
|
TOTAL:
|
735,580
|
1,470,913
|
||||||
AGREEMENT
AND PLAN OF REORGANIZATION
-
23
-
SCHEDULE
B
PRINCIPALS
|
Name
of Principal
|
Shares
of Sino Holdings Common Stock to be Received From
Stockholders
|
|||
|
Xxxx
Xxxxx
|
1,334,113
|
|||
|
Hu
Min
|
45,600
|
|||
|
Xxxx
Xxx Jun
|
45,600
|
|||
|
Xxxx
Xxxxx as attorney-in-fact for and on behalf of Xxxx Xxx
|
45,600
|
|||
|
Total:
|
1,470,913
|
|||
Address
for Notice:
0000
Xxxx Xxxxxx Xxxxxxxxx, Xxxxx
000
Xxxxxxxx,
Xxxxxxxxxx
00000
AGREEMENT
AND PLAN OF REORGANIZATION
-
24
-
