SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT
(hereinafter referred to as this “Agreement”) is entered this the 10th day of September 2010, by and among Action Acquisition Corporation, a Cayman
Islands exempted company, whose registered office address is at c/o Stuarts Corporate Services
Ltd. X.X. Xxx 0000, Xxxxx Xxxxxx XX0-0000, Xxxxxx Xxxxxxx (hereinafter referred
to as “Action”) and its controlling shareholders
identified on the signature page hereof (“Action
Shareholders”), the respective address of each is set forth in Section
9.03, and Grand Power
Capital, Inc., a British
Virgin Islands business company whose address is Akara Bldg., 00 Xx Xxxxxx Xxxxxx, Xxxxxxxx Cay 1,
Road Town, Tortola, British
Virgin Islands (hereinafter referred to as “GPC”) and the shareholders of GPC (the “GPC
Shareholders”):
*WITNESSETH*
WHEREAS, Action is an exempted company incorporated
with limited liability under the laws of Cayman Islands with no significant
operations;
WHEREAS, GPC is a private company incorporated under the laws of the
British Virgin Islands. GPC owns 100% of the issued and outstanding
capital stock of Shenzhen ORB-Fortune New-Material
Co., Ltd. (“ORB-Fortune”), a wholly foreign owned enterprise
incorporated under the laws of the People’s Republic of China (“PRC”); and
WHEREAS, Action agrees to acquire up to 100% of the
issued and outstanding shares of GPC from the GPC Shareholders in exchange for the issuance of certain
shares of Action
(“Exchange”) and the GPC Shareholders agree to exchange their shares of
GPC on the terms described herein. On the
Closing Date, GPC
will become a wholly
owned subsidiary of
Action.
* * *
NOW,
THEREFORE, on the stated
premises and for and in consideration of the mutual covenants and agreements
hereinafter set forth and
the mutual benefits to the parties to be derived herefrom, and intending to be
legally bound hereby, it is hereby agreed as follows:
ARTICLE I
COVENANTS, REPRESENTATIONS AND WARRANTIES OF GPC
As an inducement to Action to enter into this Agreement and consummate the
transactions contemplated herein, except as set forth in the
GPC Schedules (as hereinafter defined),
GPC and the GPC Shareholders, jointly and severally, represent and warrant to Action as of the Closing Date (as defined below), which may be relied upon by
Action (unless and to the extent specifically and expressly waived in writing by
Action on or before the Closing Date), as follows:
Section 1.01. Incorporation. GPC is a company duly incorporated, validly
existing, and in good
standing under the laws of the British Virgin Islands and has the corporate
power and is duly authorized under all applicable laws, regulations, ordinances,
and orders of public authorities to carry on its business in all material
respects as it is now being conducted. Included
as Schedule
1.01 is a complete and correct copy of the Memorandum and Articles of Association of GPC as in effect on the date hereof. The
execution and delivery of this Agreement by the GPC does not, and the consummation
of the transactions
contemplated hereby will not, violate any provision of its Memorandum and Articles of Association or any other formation documents. GPC has full power, authority, and legal
capacity and has
taken all actions required
by law, its Memorandum and Articles of Association, or otherwise to authorize
the execution and delivery of this Agreement and to consummate the transactions herein
contemplated.
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GPC and ORB-Fortune are each duly formed or organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and has the requisite power and authority to own, lease and operate
its assets and properties and to carry on its business as it is now being or
currently planned by each of GPC and ORB-Fortune to be conducted. Each of GPC and ORB-Fortune is in possession of all approvals,
licenses, and permits necessary to own, lease and operate the properties it
purports to own, operate or lease, to carry on its business as it is now
being conducted, to
consummate the transactions contemplated under this
Agreement. Neither GPC
nor ORB-Fortune is in violation of any of the
provisions of their respective charter documents. Neither GPC nor ORB-Fortune is required to qualify to do business
as a foreign corporation in any other jurisdiction. For purposes of this Article I, unless otherwise specifically set forth
herein, the term
“GPC” shall also include
ORB-Fortune.
Section 1.02. Authorized
Shares. The number of
shares which GPC is authorized to issue consists of
50,000 shares of a single
class, par value of $1.00 per share. There are 10,000 shares currently issued and
outstanding. The issued and outstanding shares are validly issued, fully paid,
and non-assessable and not issued in violation of the preemptive or other rights
of any
person.
Section 1.03. Subsidiaries
and Predecessor Corporations. GPC owns all of the equity
interests of ORB-Fortune. GPC does not have any other subsidiaries, and does not own,
beneficially or of record, any shares of any other corporation or entity. ORB-Fortune does not have any
subsidiaries, and does not own, beneficially or of record, any shares of any
other corporation or
entity. Neither GPC nor ORB-Fortune has conducted any business operations, and
neither party has liabilities contingent or otherwise exceeding $10,000, other than as
disclosed herein.
Section 1.04. Financial
Statements.
(a) Included in Schedule
1.04(a) are the audited balance sheets of
ORB-Fortune as of December 31, 2009 and December 31,
2008 and the related
audited statements of
operations, shareholders’ equity and cash flows for the fiscal
years ended December 31,
2009 and December 31, 2008
together with the notes to such statements and the opinion of Xxxxxxx Cogen LLP, independent certified public
accountants.
(b) Included in Schedule
1.04(b) are the unaudited balance sheets of ORB-Fortune as
of June 30,
2010 and June 30, 2009 and the related unaudited statements of operations and
cash flows for the six
month periods ended June 30, 2010 and June 30, 2009 together with the notes to such statements.
(c) All such financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved. The ORB-Fortune balance sheets are true and accurate and
present fairly as of their
respective dates the financial condition of ORB-Fortune in all material respects. As of the date
of such balance sheets, except as and to the extent reflected or reserved
against therein, ORB-Fortune had no material liabilities or
obligations (absolute or
contingent) which should be reflected in the balance sheets or the notes thereto
prepared in accordance with generally accepted accounting principles, and all
assets reflected therein are properly reported and present fairly the
value of the assets of ORB-Fortune, in accordance with generally accepted
accounting principles. The statements of operations, shareholders’ equity and cash flows reflect fairly
the information required to be set forth therein by generally accepted
accounting principles.
(d) There are no tax liens or outstanding tax audits
affecting GPC, GPC has duly and punctually paid all
governmental fees and taxation which it has become liable to pay and has duly
allowed for all taxation reasonably foreseeable and is under no obligation to pay any penalty or interest in
connection with any claim for governmental fees or taxation and GPC has made any and all proper
declarations and returns for taxation purposes and all information contained in
such declarations and returns is true and complete and full provision
or reserves have been made in its financial statements for all governmental fees
and taxation.
(e) The books and records, financial and
otherwise, of GPC and ORB-Fortune are in all material respects complete and correct and have been maintained in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved.
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(f) All of ORB-Fortune’s assets are reflected on its financial
statements, and, except as set forth in the GPC Schedules or the financial statements
of ORB-Fortune or the notes thereto, ORB-Fortune has no material liabilities, direct or
indirect, matured or unmatured, contingent or otherwise.
Section 1.05. Information. The information concerning
GPC set forth in this Agreement and in the GPC Schedules is complete and accurate in
all material respects as required under the Agreement and does not contain any
untrue statement of a material fact or omit to state a material fact required to
make the statements made, in light of the circumstances under which
they were made, not misleading. In addition, GPC has fully disclosed in writing to
Action (through this Agreement or the
GPC Schedules) all information relating to
matters involving GPC or its assets or its present
or past operations or
activities which (i) indicated or may indicate, in the aggregate, the existence
of a greater than $100,000 liability, (ii) have led or may lead to a competitive
disadvantage on the part of GPC, or (iii) either alone or in aggregation
with other information
covered by this Section, otherwise have led or may lead to a material adverse
effect on GPC, its assets, or its operations or
activities as presently conducted or as contemplated to be conducted after the
Closing Date, including, but not limited to, information relating to
governmental, employee, environmental, litigation and securities matters and
transactions with affiliates.
Section 1.06. Options or
Warrants. There are no existing options, warrants,
convertible securities, phantom stock, voting agreements, voting
trusts, shareholder agreements, rights of first refusal, redemptions, calls, or
commitments of any character relating to the authorized and unissued stock of
GPC.
Section 1.07. Absence of
Certain Changes or Events.
Since June 30, 2010 and except as disclosed in this
Agreement (including the GPC Schedules):
(a) There has not been (i) any material
adverse change in the business, operations, properties, assets, or condition
(financial or otherwise) of GPC or ORB-Fortune, or (ii) any damage, destruction or loss
to GPC or ORB-Fortune (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties, assets
or condition of GPC or ORB-Fortune;
(b) GPC has not (i) amended its Memorandum and Articles of Association, (ii) declared or made, or agreed to
declare or make, any payment of dividends or distributions of any assets of any
kind whatsoever to shareholders or purchased or redeemed, or agreed to purchase
or redeem, any of its shares, (iii) waived any rights of value which
in the aggregate are outside of the ordinary course of business or material
considering the business of
GPC, (iv) entered into any transactions or
agreements other than in the ordinary course of business, (v) made any accrual or arrangement for or
payment of bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee, (vi) increased the rate of compensation
payable or to become payable by it to any of its officers or directors or any of its
salaried employees whose monthly compensation exceed $10,000, or (vii) made any increase in any
profit sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit plan, payment, or arrangement, made to, for or with its
officers, directors, or
employees;
(c) GPC has not (i) granted or agreed to grant
any options, warrants or other rights for its stocks, bonds or other corporate
securities calling for the
issuance thereof, (ii) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability (absolute
or contingent) except as disclosed herein and except liabilities incurred in the
ordinary course of business, (iii) sold or transferred, or agreed to sell or transfer, any of
its assets, properties, or rights or canceled, or agreed to cancel, any debts or
claims, or (iv) issued, delivered, or agreed to
issue or deliver any stock, bonds or other corporate securities including
debentures (whether
authorized and unissued or held as treasury stock) except in connection with this Agreement;
and
(d) To the knowledge of GPC and the GPC
Shareholders, GPC has not become subject to any law or regulation
which materially and adversely affects, or in the future, may adversely affect, the
business, operations, properties, assets or condition of GPC.
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Section 1.08. Litigation
and Proceedings.
There are no material actions, suits, proceedings, court
orders, or investigations pending or, to the knowledge of GPC after reasonable investigation,
threatened by or against GPC or affecting GPC or its business or properties, at law
or in equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any kind. GPC does not have any knowledge of any
material default on its part with respect to any judgment, order, injunction,
decree, award, rule, or regulation of any court, arbitrator, or governmental
agency or instrumentality or of any circumstances which, after reasonable investigation, would
result in the discovery of such a default.
Section 1.09. Contracts.
(a) All “material” contracts, agreements, franchises,
license agreements, debt instruments or other commitments to which GPC is a party or by which it or any of its assets, products,
technology, or properties are bound other than those incurred in the ordinary
course of business are set forth on the Schedule
1.09. A “material” contract, agreement, franchise, license
agreement, debt instrument or commitment is one which (i) will remain in
effect for more than six (6) months after the date of this Agreement, (ii)
involves aggregate obligations of at least one hundred thousand dollars
($100,000), (iii) restricts GPC’s business activities (including any
non-compete or standstill
agreement), (iv) involves
the intellectual property
of GPC (including any license
agreements) or (v) establishes a partnership or joint venture
between GPC and a third party;
(b) All contracts, agreements,
franchises, license agreements, and other commitments to which
GPC is a party or by which its properties
are bound and which are material (as defined above) to the operations of
GPC taken as a whole are valid and
enforceable by GPC in all respects, except as limited by
bankruptcy and insolvency
laws and by other laws affecting the rights of creditors generally, and there
are no violations or breaches of any material agreement by any party;
and
(c) Except as included or described in
Schedule
1.09 or reflected in the
most recent ORB-Fortune
balance sheet, ORB-Fortune is not a party to any oral or written
(i) material contract for the employment of any officer or employee, (ii) material profit sharing, bonus,
deferred compensation, stock option, severance pay, pension, employee
benefit or retirement plan,
(iii) material agreement, contract, or indenture relating to the borrowing of
money, (iv) guaranty of any payment obligation, (vi) material collective bargaining
agreement or (vii) material agreement with any
present or former officer
or director of ORB-Fortune. ,There have been no employees strikes or
labor disputes involving any employees of ORB-Fortune and there is no form of compensation in a material
amount payable or due to any employee of ORB-Fortune that is in arrears.
Section 1.10. No Conflict
With Other Instruments. The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in the breach of any term or
provision of, constitute a default under, or terminate, accelerate or modify the terms of any
indenture, mortgage, deed of trust, or other material agreement, or instrument
to which GPC is a party or to which any of its
assets, properties or operations are subject.
Section 1.11. Compliance
With Laws and Regulations. To the best of its knowledge,
GPC has complied with all applicable
statutes and regulations of any federal, state, or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets,
or condition of GPC or except to the extent that
noncompliance would not result in the occurrence of any material liability for
GPC. This compliance includes, but is not
limited to, the filing of all reports to date with federal and state securities
authorities.
Section 1.12. Approval of
Agreement. The Board of
Directors of GPC has authorized the execution and
delivery of this Agreement by GPC and has approved this Agreement and the
transactions contemplated hereby, and will recommend to the GPC Shareholders that the Exchange be
accepted.
Section 1.13. GPC
Schedules. GPC has delivered to Action the following schedules together with
other schedules in this Article I (collectively, referred to as the “GPC
Schedules”) all of which will be certified by the
chief executive officer of GPC as required under Section 6.02 as
complete, true, and correct in all material respects as of the Closing
Date:
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(a) a schedule containing a complete and correct copy of the Memorandum and Articles of Association of GPC in effect as of the date of this
Agreement;
(b) a schedule containing the financial
statements of ORB-Fortune identified in Section 1.04(a);
(c) a schedule setting forth a
description of any material adverse change in the business, operations, property,
inventory, assets, or condition of GPC since June 30, 2010, required to be provided pursuant to
Section 1.07 hereof;
(d) a schedule of any exceptions to the
representations made herein; and
(e) a schedule containing the other information requested
above.
GPC shall cause the GPC Schedules and
the instruments and data delivered to Action hereunder to be promptly updated
after the date hereof up to and including the Closing Date.
Section 1.14. Valid
Obligation. This
Agreement and all
agreements and other documents executed by GPC, as applicable, in connection herewith
constitute the valid and binding obligation of GPC, enforceable in accordance with its or
their terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be brought.
Section 1.15. Title to
Assets; Liens, Etc.
ORB-Fortune has good and marketable title to its
assets, including the assets reflected in the most recent balance sheet included
in the ORB-Fortune’s financial statements as set forth in
Section 1.04, and in each case subject to no
mortgage, pledge, lien, lease, encumbrance or charge, other than (a) those
resulting from taxes which have not yet become delinquent; (b) liens and
encumbrances which do not materially detract from the value of the assets
subject thereto or materially impair the
operations of ORB-Fortune; (c) those that have otherwise arisen
in the ordinary course of business; and (d) those that would not reasonably be
expected to have a material adverse change in the business, operations,
property, inventory,
assets, or condition of ORB-Fortune. ORB-Fortune is in compliance with all material
terms of each lease to which it is a party or is otherwise
bound.
Section 1.16. Intellectual
Property. Except as set
forth on Schedule
1.16, GPC owns or possesses licenses or rights to use all
patents, patent applications, patent rights, inventions, know-how, trade
secrets, trademarks, trademark applications, service marks, service names, trade
names and copyrights that it believes are necessary to enable it to conduct its business as now
operated (the “Intellectual
Property”). Except as set forth on Schedule
1.16, there are no material
options, licenses or agreements relating to the Intellectual Property, nor is
GPC bound by, or a party to, any material
options, licenses or
agreements relating to the patents, patent applications, patent rights,
inventions, know-how, trade secrets, trademarks, trademark applications, service
marks, service names, trade names or copyrights of any other person or entity.
Except as disclosed in the Schedule
1.16, there is no claim or
action or proceeding pending or, to GPC’s knowledge, threatened, that challenges
the right of GPC with respect to any Intellectual
Property.
Section 1.17. Environmental
Laws. To the best of
GPC’s knowledge, GPC (a) is in compliance with any and all
applicable Environmental Laws (as hereinafter
defined), (b) has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its business and
(c) is in compliance with all terms and
conditions of any such permit, license or approval where, in each of the
foregoing clauses (a), (b) and (c), the failure to so comply would reasonably be
expected to have, individually or in the aggregate, a material
adverse change in the business, operations,
property, inventory, assets, or condition of GPC. The term “Environmental
Laws” means all applicable federal, state, local or foreign laws
relating to pollution or protection of human health or the environment
(including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata), including, without limitation, laws relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants, or toxic
or hazardous substances or wastes
(collectively, “Hazardous
Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials, as well as all
authorizations, codes,
decrees, demands or demand letters, injunctions, judgments, licenses, notices or
notice letters, orders, permits, plans or regulations issued, entered,
promulgated or approved thereunder.
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Section 1.18. Applicable
Laws and Regulations. GPC is in compliance with applicable laws and
regulations governing its business. All material consents, permits, approvals,
authorizations or licenses requisite under applicable law for the due and proper
establishment and operation of GPC doing business in each applicable jurisdiction have
been duly obtained from the relevant governmental authorities and are in full
force and effect.
Section 1.19. Material
Transactions or Affiliations. Except as disclosed herein, in
Schedule
1.19, or in any other
GPC Schedule, there exists no contract,
agreement or arrangement between the GPC and any predecessor and any person who
was at the time of such contract, agreement or arrangement an officer, director,
or person owning of record or known by the GPC to own beneficially, 5% or more of the issued and
outstanding shares or equity interest of a GPC and which is to be performed in whole
or in part after the date hereof or was entered into not more than three years
prior to the date hereof. GPC and ORB-Fortune do not
have any commitment, whether written or
oral, to lend any funds to, borrow any money from, or enter into any other
transaction with, any affiliated person.
Section 1.20. Xxxxxxxx-Xxxxx;
Disclosure Controls.
GPC will be in compliance in all material
respects with all of the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 which are applicable to it after
the Exchange. GPC shall establish disclosure controls and
procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities
Exchange Act of 1934, as amended (“Exchange
Act”)) for GPC and design such disclosure controls and
procedures to ensure that material information relating to GPC is made known to the certifying
officers by others within those entities.
ARTICLE II
COVENANTS, REPRESENTATIONS AND WARRANTIES REGARDING ACTION
Action Shareholders, collectively, hold greater than 90% of the outstanding share capital stock of Action, and are therefore familiar with Action and its operations sufficient to make
the representations and warranties contained in this Article II. As an inducement
to GPC and the GPC Shareholders to enter into this
Agreement and consummate the transactions contemplated herein, Action and the Action Shareholders represent and warrant to GPC as of the Closing Date and to the extent of their respective actual knowledge only,
which may be relied upon by Action (unless and to the extent specifically
and expressly waived in writing by GPC on or before the Closing Date), as follows:
Section 2.01. Organization. Action is an exempted company duly incorporated, validly existing, and
in good standing under the laws of Cayman Islands and has the corporate power
and is duly authorized under all applicable laws, regulations, ordinances, and
orders of public authorities to carry on its business in all material respects as it is now being
conducted. Action has previously provided to GPC complete and correct copies of the
Memorandum of Association and Articles of Association of Action as in effect on the date
hereof. The execution and
delivery of this Agreement
does not, and the consummation of the transactions contemplated hereby will not,
violate any provision of Action’s Memorandum of Association and Articles
of Association. Action has taken all action required by law,
its Memorandum of Association and Articles of Association, or otherwise
to authorize the execution and delivery of this Agreement, and Action has full power, authority, and legal
right and has taken all action required by law, its Memorandum of Association
and Articles of Association, or otherwise to consummate the
transactions herein contemplated.
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Section 2.02. Capitalization.
(a) Action’s authorized share capital consists
of 39,062,500 ordinary shares, $0.000128 par value, and 781,250 preference shares, $0.000128 par value. As of the date hereof, Action has 4,522,197
ordinary shares
and no preference shares issued and outstanding, excluding the
Exchange Shares (as defined in Section 4.01
herein). The foregoing notwithstanding,
Action will obtain shareholder approval to
consolidate its ordinary
shares on a 1 for 3 basis and to increase its authorized
ordinary shares to 100,000,000 promptly following the execution of
this Agreement. All issued and outstanding shares are legally issued, fully
paid, and non-assessable and not issued in violation of the preemptive or other
rights of any person. As of the Closing Date, (i) none of Action’s ordinary shares were reserved for
issuance upon the exercise of outstanding options to purchase the ordinary
shares or upon the exercise of outstanding
warrants to purchase
the ordinary shares, (ii) none of Action’s preference shares were reserved for issuance to any party and
(iii) no ordinary shares
were reserved for issuance upon the conversion of Action preference shares or any outstanding convertible
notes, debentures or
securities. All outstanding Action ordinary shares have been issued
and granted in compliance
with (A) all applicable
securities laws and (in all material respects) other applicable laws and regulations, and
(B) all requirements set
forth in any applicable
Contracts.
(b) Other than as stated in subparagraph
(a) above, there are no equity securities, partnership interests or similar
ownership interests of any class of any equity security of Action, or any securities exchangeable or
convertible into or
exercisable for such equity securities, partnership interests or similar
ownership interests, issued, reserved for issuance or outstanding. Except as
contemplated by this Agreement, there are no subscriptions, options, warrants,
equity securities, partnership interests or similar
ownership interests, calls, rights (including preemptive rights), commitments or
agreements of any character to which Action is a party or by which it is bound
obligating Action to issue, deliver or sell, or cause
to be issued, delivered or
sold, or repurchase, redeem or otherwise acquire, or cause the repurchase,
redemption or acquisition of, any shares, partnership interests or similar
ownership interests of Action or obligating Action to grant, extend, accelerate
the vesting of or enter
into any such subscription, option, warrant, equity security, call, right,
commitment or agreement. There is no plan or arrangement to issue Action ordinary shares or preference shares except as set forth in this
Agreement.
Except as contemplated by this Agreement,
there are no registration rights, and there is no voting trust, proxy, rights
plan, anti-takeover plan or other agreement or understanding to which
Action is a party or by which it is bound with
respect to any equity security of any class of Action, and there are no agreements to which
Action is a party, or which Action has knowledge of, which conflict with
this Agreement or the transactions contemplated herein or otherwise prohibit the
consummation of the transactions contemplated
hereunder.
Section 2.03. Subsidiaries
and Predecessor Corporations. Action does not have any predecessor
corporation(s), no subsidiaries, and does not own, beneficially or of record,
any shares of any other corporation.
Section 2.04. Financial
Statements.
(a) Action has provided to GPC the audited balance sheets of
Action as of June 30, 2009 and June 30, 2008, the related audited statements of
operations, shareholders’ equity and cash flows together with the
notes to such statements and the opinion of PMB Xxxxx Xxxxxxx, LLP, independent certified public
accountants, with respect thereto;
(b) Action has provided to GPC unaudited balance sheets of March 31,
2010 and June 30,
2009 and the related
unaudited statements of operations and cash flows for the three and nine month periods ended on
March 31, 2010 and March 31, 2009, together with the notes to such statements
which financial statements
have been reviewed by PMB
Xxxxx Xxxxxxx,
LLP;
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(c) All such financial statements have
been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved. The Action balance sheets are true and accurate
and present fairly as of their respective dates the financial condition of
Action. As of the date of such balance sheets, except as and
to the extent reflected or reserved against therein, Action had no liabilities or obligations
(absolute or contingent) which should be reflected in the balance sheets or the
notes thereto prepared in accordance with generally accepted accounting
principles, and all assets reflected therein are properly reported and present
fairly the value of the assets of Action, in accordance with generally accepted
accounting principles. The statements of operations, shareholders’ equity and cash flows reflect fairly
the information required to be set forth therein by generally accepted
accounting principles. Action’s financial statements are available at
xxx.xxx.xxx;
(d) Action has no liabilities with respect to the
payment of any federal,
state, county, local or other taxes (including any deficiencies, interest or
penalties), except for taxes accrued but not yet due and
payable;
(e) Action has timely filed all state, federal or
local income and/or franchise tax returns required to be filed by it from inception to
the date hereof. Each of such income tax returns reflects the taxes due for the
period covered thereby, except for amounts which, in the aggregate, are
immaterial;
(f) The books and records, financial and
otherwise, of Action are in all material respects complete and correct and have
been maintained in accordance with generally accepted accounting principles
consistently applied throughout the periods involved; and
(g) All of Action’s assets are reflected on its
financial statements, and,
except as set forth in the financial statements of Action or the notes thereto, Action has no material liabilities, direct or
indirect, matured or unmatured, contingent or otherwise.
Section 2.05. Information. The information concerning Action set forth in this Agreement and as
provided to GPC by Action is complete and accurate in all
material respects and does not contain any untrue statements of a material fact
or omit to state a material fact required to make the statements
made, in light of the
circumstances under which they were made, not misleading. In addition,
Action has fully disclosed in writing to
GPC (through this Agreement or otherwise )
all information relating to matters involving Action or its assets or its present
or past operations or
activities which (i) indicated or may indicate, in the aggregate, the existence
of a greater than $1,000 liability, (ii) have led or may lead to a competitive
disadvantage on the part of Action, or (iii) either alone or in aggregation
with other information
covered by this Section, otherwise have led or may lead to a material adverse
effect on Action, its assets, or its operations or
activities as presently conducted or as contemplated to be conducted after the
Closing Date, including, but not limited to, information relating
to governmental, employee, environmental, litigation and securities matters and
transactions with affiliates.
Section 2.06. Options or
Warrants. There are no
existing options, warrants, convertible securities, phantom stock, voting agreements, voting
trusts, shareholder agreements, rights of first refusal, redemptions, calls, or
commitments of any character relating to the authorized and unissued shares of
Action.
Section 2.07. Absence of
Certain Changes or Events. Since March 31, 2010 and except (i) as disclosed in the
Agreement, (ii) for the
Consulting Agreement by and between Nautilus Global Partners, LLC and
Action dated September 1, 2010, and (iii) for the issuance of
3,523,922 ordinary shares to Skyline Investors, LLC:
(a) there has not been (i) any material
adverse change in the business, operations, properties, assets or condition of
Action, or (ii) any damage, destruction or loss
to Action (whether or not covered by insurance)
materially and adversely affecting the business, operations,
properties, assets or condition of Action;
8
(b) Action has not (i) amended its Memorandum of
Association and Articles of Association except as required by or referenced in
this Agreement, (ii) declared or made, or agreed to
declare or make any payment
of dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any of
its shares, (iii) waived any rights of value which
in the aggregate are outside of the ordinary course of business or
material considering the business of Action, (iv) made any material change in its
method of management, operation, or accounting, (v) entered into any transactions or
agreements other than in the ordinary course of business, (vi) made any accrual or arrangement
for or payment of bonuses or special compensation of any kind or any severance
or termination pay to any present or former officer or employee, (vii) increased the rate of
compensation payable or to become payable by it to any of its officers or
directors or any of its salaried employees whose monthly compensation exceed
$1,000, or (viii) made any increase in any
profit sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit
plan, payment, or arrangement, made to, for or with its officers, directors, or
employees;
(c) Action has not (i) granted or agreed to grant
any options, warrants, or other rights for its stock, bonds, or other corporate
securities calling for the issuance thereof, (ii) borrowed or agreed to borrow any
funds, (iii) incurred, paid or agreed to pay
any material obligations or liabilities (absolute or contingent) other than
current liabilities reflected in or shown on the most recent Action balance sheet and current liabilities incurred since
that date in the ordinary course of business and professional and other fees and
expenses in connection with the preparation of this Agreement and the
consummation of the transaction contemplated hereby, (iv) sold or transferred, or agreed to sell or
transfer, any of its assets, properties, or rights (except assets, properties,
or rights not used or useful in its business which, in the aggregate have a
value of less than $1,000), or canceled, or agreed to cancel, any debts or claims (except debts or claims
which in the aggregate are of a value less than $1,000), (v) made or permitted any amendment or
termination of any contract, agreement, or license to which it is a party if
such amendment or termination is material, considering the business of Action, or (vi) issued, delivered or agreed to
issue or deliver, any stock, bonds or other corporate securities including
debentures (whether authorized and unissued or held as treasury stock), except
in connection with this Agreement; and
(d) to the knowledge of Action and the Action Shareholders, Action has not become subject to any law or
regulation which materially and adversely affects, or in the future, may
adversely affect, the business, operations, properties, assets or condition of Action.
Section 2.08. Litigation
and Proceedings. There are
no actions, suits, proceedings or investigations pending or, to the knowledge of
Action after reasonable investigation,
threatened by or against Action or affecting Action or its properties, at law or in equity, before any
court or other governmental agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind. Action has no knowledge of any default on its
part with respect to any judgment, order, writ, injunction, decree, award, rule or regulation
of any court, arbitrator, or governmental agency or instrumentality or any
circumstance which after reasonable investigation would result in the discovery
of such default.
Section 2.09. Contracts.
Except as disclosed in this
Agreement;
(a) Action is not a party to, and its assets,
products, technology and properties are not bound by, any contract, franchise,
license agreement, agreement, debt instrument or other commitments whether such
agreement is in writing or
oral;
(b) Action is not a party to or bound by, and the
properties of Action are not subject to any contract,
agreement, other commitment or instrument; any charter or other corporate
restriction; or any judgment, order, writ, injunction, decree, or award; and
(c) Action is not a party to any oral or written
(i) contract for the employment of any officer or employee; (ii) profit sharing,
bonus, deferred compensation, stock option, severance pay, pension, employee
benefit or retirement plan, (iii) agreement, contract, or indenture relating
to the borrowing of money, (iv) guaranty of any obligation, (vi) collective
bargaining agreement; or (vii) agreement with any present or former officer or
director of Action.
9
Section 2.10. No Conflict
With Other Instruments. The execution of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, constitute a default under, or
terminate, accelerate or modify the terms of, any indenture, mortgage, deed of trust, or
other material agreement or instrument to which Action is a party or to which any of its
assets, properties or operations are subject.
Section 2.11. Compliance
With Laws and Regulations.
To the best of its knowledge, Action has complied with all applicable
statutes and regulations of any federal, state, or other applicable governmental
entity or agency thereof. This compliance includes, but is not limited to, the
filing of all reports and forms to date with federal and state securities
authorities.
Section 2.12. Approval of
Agreement. The Board of
Directors of Action has authorized the execution and
delivery of this Agreement by Action and has approved this Agreement and the
transactions contemplated hereby.
Section 2.13. Material
Transactions or Affiliations. Except as disclosed herein (including
Section 2.07), there exists no contract, agreement or arrangement between
Action and any predecessor and any person who
was at the time of such contract, agreement or arrangement an officer, director, or person
owning of record or known by Action to own beneficially, 5% or
more of the issued and
outstanding ordinary
shares of Action and which is to be performed in whole
or in part after the date hereof or was entered into not more than three years prior to the
date hereof. Action has no commitment, whether written or
oral, to lend any funds to, borrow any money from, or enter into any other
transaction with, any affiliated person.
Section 2.14. Valid
Obligation. This
Agreement and all
agreements and other documents executed by Action in connection herewith constitute the
valid and binding obligation of Action, enforceable in accordance with its or
their terms, except as may be limited by bankruptcy, insolvency, moratorium
or other similar laws
affecting the enforcement of creditors’ rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be
brought.
Section 2.15. SEC Filings;
Financial Statements.
(a) Action has made available to GPC a correct and complete copy, or there
has been available on XXXXX, copies of each report, registration statement and
definitive proxy statement filed by Action with the SEC for the 36 months prior to the date of
this Agreement (the “Action SEC
Reports”), which, to Action’s knowledge, are all the forms, reports
and documents filed by Action with the SEC for the 36 months prior to
the date of this Agreement. As of their respective dates, to Action’s knowledge, the Action SEC Reports: (i) were prepared in
accordance and complied in all material respects with the requirements of the
Securities Act of 1933, as amended (“Securities
Act”), the Exchange Act or the
Xxxxxxxx-Xxxxx Act of 2002,
as the case may be, and the rules and regulations of the SEC thereunder
applicable to such Action SEC Reports, and (ii) did not at the
time they were filed (and if amended or superseded by a filing prior to the date
of this Agreement then on the date of such filing and as so amended or
superseded) 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 light of the circumstances under which they were made, not
misleading.
(b) Each set of financial statements
(including, in each case, any related notes thereto) contained in the
Action SEC Reports comply as to form in all
material respects with the published rules and regulations of the SEC with respect thereto, were prepared in
accordance with U.S. generally accepted accounting
principles, applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of unaudited statements, do not contain footnotes as permitted by
Form 10-Q promulgated under the Exchange Act), and each fairly presents in all
material respects the financial position of Action at the respective dates thereof and the
results of its operations and cash flows for the periods indicated, except that the
unaudited interim financial statements were or are subject to normal
adjustments, which were not or are not expected to
have a material adverse change on Action taken as a whole.
10
(c) There are no amendments or
modifications to
Action SEC Reports which have not yet been
filed with the SEC but which will be required to be filed, including any
agreements, documents or other instruments which previously had been filed by
Action with the SEC pursuant to the Securities
Act or the Exchange
Act .
(d) The are no outstanding comment or
other letters from the SEC to Action which have not been satisfied by
Action.
(e) There are no outstanding written communications from
the Financial Industry Regulatory Authority
(“FINRA”) regarding Action.
(f) All the accounts, books, registers,
ledgers, Board minutes and financial and other records of whatsoever kind of
Action have been fully, properly and accurately
kept and completed; there are no material inaccuracies or discrepancies of
any kind contained or
reflected therein; and they give and reflect a true and fair view of the
financial, contractual and legal position of Action. Action maintains a system of internal
accounting controls sufficient, in the judgment of Action to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management’s general or specific authorization and
(iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and
appropriate actions are taken with respect to any
differences.
Section 2.16. Exchange Act
Compliance. Action is in compliance with, and current in,
all of the reporting, filing and other requirements under the Exchange Act, the
ordinary shares have been registered under Section
12(g) of the Exchange Act, and Action is in compliance with all of the
requirements under, and imposed by, Section 12(g) of the Exchange Act, except
where a failure to so comply is not reasonably likely to have a material adverse effect (as defined by the SEC) on Action.
Section 2.17. Title to
Property. Action does not own or lease any real property
or personal property. There are no options or other contracts under which
Action has a right or obligation to
acquire or lease any
interest in real property or personal property.
Section 2.18. Intellectual
Property. Action does not own, license or otherwise have
any right, title or interest in any intellectual property.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE GPC SHAREHOLDERS
The GPC Shareholders hereby represent and warrant, severally and solely, to Action as follows.
Section 3.01. Good
Title. Each GPC Shareholder is the record and beneficial owner, and
has good title to the shares of GPC set forth next to such GPC Shareholder, with the right and authority to sell
and deliver such GPC Shares (as defined in Section 4.01 herein), free and clear of all liens,
claims, charges, encumbrances, pledges, mortgages, security interests, options,
rights to acquire, proxies,
voting trusts or similar agreements, restrictions on transfer or adverse claims
of any nature whatsoever. At Closing, Action will receive good title to such
GPC Shares, free and clear of all liens,
pledges, encumbrances, charges, restrictions or known claims of any kind, nature or
restriction.
11
Section 3.02. Power and
Authority. The GPC Shareholders have the legal power, capacity and authority
to execute and deliver this Agreement to consummate the transactions
contemplated by this Agreement, and to perform his obligations under this
Agreement. This Agreement constitutes a legal, valid and binding obligation of
the GPC Shareholders, enforceable against
each GPC Shareholder in accordance with the terms
hereof.
Section 3.03. No
Conflicts. The
execution and delivery of
this Agreement by the GPC Shareholders and the performance by the
GPC Shareholders of their obligations hereunder in accordance
with the terms hereof: (a) will not require the consent of any third party or
governmental entity under any laws; (b) will not violate any laws
applicable to the GPC Shareholders and (c) will not violate or breach any
contractual obligation to which the GPC Shareholders are a party.
Section 3.04. Finder’s
Fee. The GPC Shareholders represent and warrant that they
have not created any obligation for any
finder’s, investment banker’s or broker’s fee in connection with the
Exchange.
Section 3.05. Purchase
Entirely for Own Account.
The Exchange Shares (as defined in Section 4.01 herein) proposed to be acquired
by each of the GPC Shareholders hereunder will be acquired for
investment for its own account, and not with a view to the
resale or distribution of any part thereof, and each of the GPC Shareholders has no present intention of selling or
otherwise distributing the
Exchange Shares, except in compliance with applicable securities
laws.
Section 3.06. Acquisition
of Exchange Shares for Investment.
(a) Each GPC Shareholder is acquiring the Exchange
Shares for investment for such GPC Shareholder’s own account and not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and each GPC Shareholder has no present intention of
selling, granting any participation in, or otherwise distributing the same.
Each GPC Shareholder further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Exchange Shares.
(b) Each GPC Shareholder represents and warrants that it: (i) can bear the economic risk of
its respective investments,
and (ii) possesses such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and
risks of the investment in Action and its securities.
(c) Each GPC Shareholder is not a “U.S. Person” as defined in Rule 902(k) of Regulation
S of the Securities Act (“Regulation
S”) (each a “Non-U.S.
Shareholder”) and understands that the Exchange Shares are
not registered under the Securities Act and that the issuance thereof
to each GPC Shareholder is intended to be exempt
from registration under the Securities Act pursuant to Regulation S. Each
Non-U.S. Shareholder has no intention of becoming a U.S. Person. At the time of
the origination of contact
concerning this Agreement and the date of the execution and delivery of this
Agreement, each Non-U.S. Shareholder was outside of the United States. Each
certificate representing the Exchange Shares shall be endorsed with the
following legends, in addition to any other legend
required to be placed thereon by applicable federal or state securities
laws:
“THE SECURITIES ARE BEING OFFERED TO
INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN
RELIANCE UPON REGULATION S PROMULGATED UNDER THE SECURITIES
ACT.”
“TRANSFER OF THESE SECURITIES IS
PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
12
(d) Each GPC Shareholder acknowledges that neither the
SEC, nor the securities regulatory body of any state or other jurisdiction, has
received, considered or passed upon the accuracy or adequacy of the information
and representations made in this Agreement.
(e) Each GPC Shareholder acknowledges that
it has carefully reviewed such information
as it has deemed necessary to evaluate an
investment in Action and its securities. To the full
satisfaction of each GPC Shareholder, it has been furnished all materials that
he has requested relating
to Action and the issuance of the Exchange Shares
hereunder, and each GPC Shareholder has been afforded the
opportunity to ask questions of Action’s representatives to obtain any
information necessary to verify the accuracy of any representations or information made or given
to the GPC Shareholder. Notwithstanding the foregoing, nothing
herein shall derogate from or otherwise modify the representations and
warranties of Action set forth in this Agreement, on which
each of the GPC Shareholders have relied in making an exchange of its
shares GPC for the Exchange
Shares.
(f) Each of the GPC Shareholders understands and agrees that the
Exchange Shares may not be sold, transferred, or otherwise disposed of without
registration under the Securities Act or an exemption therefrom,
including Regulation S, and that in the absence of an effective registration
statement covering the Exchange Shares or any available exemption from
registration under the Securities Act, the Exchange Shares may have
to be held indefinitely. Each of the GPC Shareholders further acknowledges that the Exchange
Shares may not be sold pursuant to Rule 144 promulgated under the Securities Act
unless all of the conditions of Rule 144 are satisfied (including, without
limitation, Action’s compliance with the reporting
requirements under the Exchange Act), and further, Action will refuse to register any transfer of
securities by any
GPC Shareholder not made according to
Regulation S, the Securities Act or other exemption thereof.
(g) Each GPC Shareholder agrees that,
notwithstanding anything contained herein to the contrary, the warranties,
representations, agreements and covenants of each of the GPC Shareholders under this Section 3.06 shall survive
the Closing.
Section 3.07. Additional
Legend; Consent.
Additionally, the Exchange Shares will bear any legend required by the
“blue sky” laws of any state to the extent such
laws are applicable to the securities represented by the certificate so
legended. Each of the GPC Shareholders consents to Action making a notation on its records or
giving instructions to any transfer agent of Exchange Shares in order to
implement the restrictions on transfer of the Exchange
Shares.
ARTICLE IV
PLAN OF EXCHANGE
Section 4.01. The
Exchange.
(a) On the terms and subject to the
conditions set forth in this Agreement, at Closing (as defined herein),
each of the GPC Shareholders shall be deemed the beneficial and
record owner of number of ordinary or preference shares of Action set opposite the respective GPC Shareholder’s name as set forth on Schedule
4.01(a), free and clear of all liens, pledges,
encumbrances, charges, restrictions or known claims of any kind, nature, or
description (“Exchange
Shares”). Certificates representing the
respective ordinary or preference shares, as the case may be, of Action shall be delivered to the GPC Shareholders within ten (10) days from
the Closing. The preference
shares of Action will be convertible into the number of
ordinary shares of Action as set forth on Schedule
4.01(a) after giving effect to the Charter
Amendments (as defined herein). “Exchange
Shares” as stated herein shall mean
the ordinary
and preference shares issued on the Closing Date, as well as
the ordinary shares issuable upon conversion of the
preference shares.
(b). On the terms and subject to the
conditions set forth in
this Agreement, at Closing, each of the GPC Shareholders shall be deemed to have delivered to Action, the number of ordinary shares of
GPC set opposite the GPC Shareholder’s name as set forth on Schedule
4.01(a) (“GPC
Shares”), free and clear of all liens, pledges,
encumbrances, charges, restrictions or known claims of any kind, nature, or
description. The parties
hereby acknowledge that
share certificates of GPC have not been issued to the GPC Shareholders.
13
(c). Upon consummation of the
transaction contemplated herein, after giving effect to a 1 for 3 share
consolidation, all of the issued and outstanding shares of GPC shall be held by
Action. Upon consummation of the transaction contemplated herein and after
giving effect to the Charter Amendments, there shall be 15,073,990 ordinary
shares and no preference shares issued and outstanding of Action, of which
1,507,399 ordinary shares will be held by the existing Action shareholders,
13,265,111 ordinary shares will be held shares will be held by the GPC
Shareholders; and 301,480 ordinary shares will be held by the parties set forth
on Schedule
4.01(c).
Section 4.02. Closing. The closing (the “Closing” or the “Closing
Date”) of the transactions contemplated by this
Agreement shall occur ") will occur on September 10, 2010 or such later date as agreed to
in writing by the parties ("Closing
Date"). Such Closing shall
take place at a mutually agreeable time and place, and be conditioned upon all of the conditions of the
Offering being met.
Section 4.03. Closing
Events. At the Closing,
Action, GPC and the GPC Shareholders shall execute, acknowledge, and deliver
(or shall ensure to be executed, acknowledged, and delivered), any and all
certificates, opinions,
financial statements, schedules, agreements, resolutions, rulings or other
instruments required by this Agreement to be so delivered at or prior to the
Closing, together with such other items as may be reasonably requested by the
parties hereto and their respective legal
counsel in order to effectuate or evidence the transactions contemplated
hereby.
Section 4.05. Termination. In the event the parties are
unable to effect a Closing of the transactions contemplated herein on or
before the Closing Date,
then in such event; this Agreement shall be deemed null and void and no
obligation, right or liability shall arise hereunder.
ARTICLE V
SPECIAL COVENANTS
Section 5.01. Access to
Properties and Records.
Action and GPC will each afford to the officers and authorized
representatives of the other full access to the properties, books and records of
Action or GPC, as the case may be, in order that each
may have a full opportunity to make such reasonable investigation as it shall
desire to make of the
affairs of the other, and each will furnish the other with such additional
financial and operating data and other information as to the business and
properties of Action or GPC, as the case may be, as the other shall
from time to time reasonably request.
Section 5.02. Delivery of
Books and Records. At the
Closing, Action shall deliver, or cause to be delivered, to GPC, the originals of the corporate minute
books, books of account, contracts, records, and all other books or documents of
Action which are now in the possession of Action or its
representatives.
Section 5.03. Third Party
Consents and Certificates. Action and GPC agree to cooperate with each other in
order to obtain any required third party consents to this Agreement and the
transactions herein
contemplated.
Section 5.04. Designation
of Directors and Officer.
At Closing: (a)
Junning (Marco) Ma will be appointed Chairman, President and Director of the Company, and Guangning Xu will be appointed Vice President, Chief Financial Officer, and Secretary of the Company; and (b) immediately after the
appointments in (i) have occurred, all existing officers and directors of
Action (other than Xxxxxx Xxxxxxx as a
director) shall resign from
such positions. Subject to the effectiveness of
an Information Statement
required by Rule 14f-1 promulgated under the Exchange Act, Xxxxxx Xxxxxxx shall be appointed an independent director of the Company.
14
Section 5.05. Indemnification.
(a) GPC hereby agrees to indemnify Action and each of the officers, agents and directors of
Action as of the date of execution of this
Agreement against any loss, liability, claim, damage, or expense (including, but
not limited to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation, commenced
or threatened, or any claim whatsoever) (the “Loss”), to which it or they may become
subject arising out of or based on any inaccuracy appearing in or
misrepresentations made under Article I of this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement for one year following the
Closing.
(b) The GPC Shareholders, jointly and severally, agree to indemnify Action and each of the officers, agents and
directors of Action as of the date of execution of this
Agreement against any Loss, to which they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentations made under Article I and Article III of this
Agreement. The indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and termination
of this Agreement for one year following the Closing.
(c) Action hereby agrees to indemnify GPC and each of the officers, agents, and
directors of GPC and each of the GPC Shareholders as of the date of execution of this
Agreement against any Loss to which it or they may become subject arising out of
or based on any inaccuracy
appearing in or misrepresentation made under Article II of this Agreement. The
indemnification provided for in this paragraph shall survive the Closing and
consummation of the transactions contemplated hereby and termination of this
Agreement for one year following the
Closing.
(d) Subject to the other provisions of
this subsection (d), Action Shareholders agree to indemnify
GPC and each of the officers, agents, and
directors of GPC and each of the GPC Shareholder as of the date of execution of this Agreement against any Loss
to which it or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentation made under Article II of this Agreement.
Notwithstanding the forgoing, in no event shall any Action Shareholder’s total liability for Losses pursuant to
this Section 5.05(d) exceed (and shall be capped at) the Fair Market Value (as
defined below) on the Determination Date (as defined below) of the ordinary
shares of Action held by such shareholder on
the Closing Date (adjusted for
(i) any subsequent stock
split, stock dividend, consolidation, re-organization, reclassification and the
like and (ii) any previous surrender of such
ordinary shares by such Action Shareholder pursuant to this Section
5.05(d) to satisfy an
indemnification claim). For purposes of clarification, the number of ordinary
shares held by the Action Shareholders at Closing, and before giving effect to the
Charter Amendments, are as
follows;
|
Name
|
Shares
|
|||
|
Skyline
Investors, LLC
|
3,523,922 | |||
|
Nautilus
Global Partners, LLC
|
781,250 | |||
In satisfying its indemnification
obligations under this Section 5.05(d), such Action Shareholders shall have the option of
surrendering to Action for cancellation that number of
Action ordinary shares held by the Action Shareholder in an amount equal to the
dollar amount of the Loss divided by the Fair Market Value calculated on a per
share basis. The parties hereto agree that should an Action Shareholder surrender all of its
ordinary shares owned at Closing pursuant to this Section 5.05(d), such
Action Shareholder shall have no further
liability pursuant to this Agreement for any reason.
“Fair Market
Value” shall mean the average closing price of
the Action ordinary shares as traded on its
primary market for the five
trading days immediately prior to the Determination Date, or if no primary
market exists, then by appraisal from a licensed independent appraiser selected by the mutual agreement of Action, the Action Shareholder, GPC, and the GPC
Shareholders.
15
“Determination
Date” shall mean the date the Loss is
determined whether by court decision, agreement, or
otherwise.
The indemnification provided for in this
paragraph shall survive the Closing and consummation of the transactions
contemplated hereby and
termination of this Agreement for one year following the
Closing.
Section 5.06. The
Acquisition of Action Ordinary
Shares. Action, the GPC Shareholders, and GPC understand and agree that the
consummation of this Agreement including the issuance of the Exchange Shares to the GPC Shareholders in exchange for the GPC Shares as contemplated hereby
constitutes the offer and sale of securities under the Securities Act and
applicable state statutes. Action, the GPC Shareholders, and GPC agree that such transactions shall be consummated in reliance
on exemptions from the registration and prospectus delivery requirements of such
statutes, which depend, among other items, on the circumstances under which such
securities are acquired.
(a) In connection with the transaction contemplated by this
Agreement, Action, the GPC Shareholders, and GPC shall each file, with the assistance of
the other and their respective legal counsel, such notices, applications,
reports, or other instruments as may be deemed by them to be necessary or appropriate in an effort
to document reliance on such exemptions, and the appropriate regulatory
authority in the states where the shareholders of GPC reside unless an exemption requiring no
filing is available in such jurisdictions, all to the extent and in the manner as may be
deemed by such parties to be appropriate.
(b) In order to more fully document
reliance on the exemptions as provided herein, GPC, the GPC Shareholders, and Action shall execute and deliver to the other,
at or prior to the Closing,
such further letters of representation, acknowledgment, suitability, or the like
as GPC or Action and their respective counsel may
reasonably request in connection with reliance on exemptions from registration
under such securities laws.
(c) Each GPC Shareholder acknowledges that the basis for relying on
exemptions from registration or qualifications are factual, depending on the
conduct of the various parties, and that no legal opinion or other assurance
will be required or given to the effect that the transactions contemplated
hereby are in fact exempt from registration or
qualification.
Section 5.07. Required
Corporate Actions. In
connection with the transactions contemplated herein, Action hereby agrees to undertake the following actions as stated:
(a) At or prior to Closing, the Board of
Directors of Action shall have approved a resolution in a
form reasonably acceptable to GPC or its counsel which details the
rights, privileges and designations of the preference shares to be issued to a certain GPC Shareholders at Closing (“Preference
Shares
Resolution”); and
(b) At or prior to Closing, the Board of
Directors of Action shall have directed the Secretary of
Action to serve notice convening a general
meeting of Action Shareholders to approve the name change to “ORB Automotive Corporation,” the share consolidation of its ordinary
shares on a 1 for 3 ratio, and an increase of its
authorized ordinary shares to 100,000,000 (“Charter
Amendments”).
Section 5.08. Post Closing
Corporate Acts. Following the Closing, the parties
hereto covenant and agree to use commercially reasonable efforts undertake the
following actions, as may
be applicable to Action:
(a) Obtain Action shareholder approval of the Charter
Amendments in accordance with Cayman Islands law, which includes conducting
the requisite shareholder
meeting.
16
(b) (i) Prepare and file, as promptly as
possible, with the SEC a Preliminary and, thereafter, a Definitive Schedule 14C
Information Statement with respect to the Charter Amendments, (ii) promptly respond to comments from
the SEC and promptly file any required amendments to the Schedule 14C
Information Statement, if any, (iii) timely mail the stated Information
Statement to its shareholders, and (iv) prepare and timely file with
the SEC a Form 8-K
disclosing the Charter Amendments. The Charter Amendments and Preliminary and
Definitive Schedule 14C Information Statements shall be in forms reasonably
acceptable to the parties hereto.
(c) Prepare and file an amendment to (or
restatement of) its
Memorandum of Association and/or Articles of Association or such other
appropriate instrument with the Registrar of Companies of Cayman Islands or
other appropriate office with respect to the Charter
Amendments.
(d) (i) Prepare and file with the SEC a Rule 14f-1 Information
Statement regarding the change of its directors to the Action Shareholders, (ii) timely mail the
stated Information Statement to its shareholders, and (iii) prepare and timely
file with the SEC a Form 8-K disclosing the change of directors. The Rule 14f-1
Information Statement shall be in a form reasonably acceptable to the parties
hereto.
Section 5.09. Payment of
Liabilities. Recognizing
the need to extinguish all existing liabilities of Action prior to the Closing Date, Action shall have paid and discharged all of
its liabilities and obligations through the Closing Date (actual and accrued),
except as stated in Section 5.08(b)(i) and (d)(i).
Section 5.10. Assistance
with Post-Closing SEC Reports and Inquiries. Upon the reasonable request of GPC, after the Closing Date, certain of the
Action Shareholders (or through their
representatives, specifically Xxxxxx Xxxxxxx and Xxxx Xxxxxx), shall use their reasonable best efforts
to provide such information available to it, including information, filings, reports,
financial statements or other circumstances of Action occurring, reported or filed prior to
the Closing, as may be necessary or required by Action for the preparation of the reports that
Action is required to file after Closing with the SEC to remain in
compliance and current with its reporting requirements under the Exchange Act,
or filings required to address and resolve matters as may relate to the period
prior to Closing and any SEC comments relating thereto or any SEC inquiry thereof.
Section 5.11. Fees and
Expenses. Except as stated
in Section 5.09 above, all Expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such Expenses whether or not the transaction is consummated. As used
in this Agreement, “Expenses” shall include all reasonable
out-of-pocket expenses (including, without limitation, all fees and expenses of
counsel, accountants, experts and consultants to a party hereto and its
affiliates) incurred by a
party or on its behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of this Agreement and all
other matters relating to the closing of the transactions contemplated
hereby.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF
ACTION
Unless otherwise waived in writing by
Action, the obligations of Action under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following
conditions:
Section 6.01. Accuracy of
Representations and Performance of Covenants. The representations and warranties
made by GPC and each of the GPC Shareholders in this Agreement were true when made
and shall be true at the Closing Date with the same force and effect as if
such representations and
warranties were made at and as of the Closing Date (except for changes therein
permitted by this Agreement). GPC shall have performed or complied with
all covenants and conditions required by this Agreement to be performed or
complied with by
GPC prior to or at the
Closing.
Section 6.02. Officer’s
Certificate. Action shall have been furnished with
certificates dated the Closing Date and signed by a duly authorized executive
officer of GPC, certifying that: (a) each representations and warranties of GPC contained in this Agreement shall (i) have been true and correct as of
the date of this Agreement, and (ii) be true and correct on and as
of the Closing Date; and (b) the GPC Schedules are correct, true and
accurate on the Closing Date, inclusive of updated
Schedules.
17
Section 6.03. Secretary’s
Certificate. Action shall have received a Certificate of
Secretary of GPC in a form acceptable to Action certifying attached copies of (i) the
Memorandum of Association and Articles of Association of GPC; (ii) the resolutions of the
GPC Board approving this Agreement, related
documents and the transactions contemplated hereby and thereby; and (iii) the
incumbency of each authorized officer of GPC this Agreement and the related agreements.
Section 6.04. Good
Standing. At Closing,
Action shall have received a certificate of
good standing from The Registrar of Corporate Affairs of the British Virgin
Islands, certifying that GPC is in good standing as a company in the
British Virgin Islands.
Section 6.05. Approval by
GPC
Shareholders. The Exchange
shall have been approved by the holders of not less one hundred percent (100%)
of the shares eligible to vote, of GPC, unless a lesser number is agreed to by
Action.
Section 6.06. No
Governmental Prohibition. No order, statute, rule, regulation,
executive order, injunction, stay, decree, judgment or restraining order shall
have been enacted, entered, promulgated or enforced by any court or governmental
or regulatory authority or instrumentality which prohibits the consummation of the
transactions contemplated hereby.
Section 6.07. Consents. All consents, approvals, waivers or
amendments pursuant to all contracts, licenses, permits, trademarks and other
intangibles in connection with the transactions contemplated herein, or for the continued
operation of GPC after the Closing Date on the basis as
presently operated shall have been obtained.
Section 6.08. Legal
Opinion. Action shall have been furnished with an
opinion dated the Closing Date, from the legal counsel of GPC, covering such matters as it relates to
this Agreement and other matters reasonably requested by Action.
Section 6.09. No Closing
Material Adverse Effect.
From the date of this Agreement until the Closing Date, there has not occurred
a material adverse change
in any of the assets, properties, business or operations of the GPC.
Section 6.10. Other
Items.
(a) Action shall have received a list containing
the name, address, and number of shares held by the GPC Shareholders as of the date of Closing, certified by an executive
officer of GPC as being true, complete and accurate;
and
(b) Action shall have received such further
opinions, documents, certificates or instruments relating to the transactions
contemplated hereby as Action may reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF
GPC AND THE GPC SHAREHOLDERS
Unless otherwise waived in writing by
GPC, the obligations of GPC and the GPC Shareholders under this Agreement are subject to the
satisfaction, at or before
the Closing Date, of the following conditions:
Section 7.01. Accuracy of
Representations and Performance of Covenants. The representations and warranties made
by Action in this Agreement were true when made
and shall be true as of the Closing Date (except for changes therein permitted by
this Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date. Additionally, Action shall have performed and complied with
all covenants and conditions required by this Agreement to be
performed or complied with by Action.
18
Section 7.02. Director’s
Certificate. GPC shall have been furnished with
certificates dated the Closing Date and signed by a duly authorized director of Action, certifying that each representation and warranty of
Action contained in this Agreement shall: (a) have been true and correct as of
the date of this Agreement,
and (b) be true and correct
on and as of the Closing Date with the same force and effect as if made on and
as of the Closing.
Section 7.03. Secretary’s
Certificate. GPC shall have received a Certificate of
Secretary of the Action in a form acceptable to GPC certifying attached copies of (i) the
Memorandum of Association and Articles of Association of Action, (ii) the Preference shares Resolution, (iii) the resolutions
of the Action Board approving this Agreement, related
documents and the transactions contemplated hereby and thereby; and (iv) the
incumbency of each authorized officer of Action this Agreement and related
agreements.
Section 7.04. Good
Standing. GPC shall have received a certificate of
good standing from the Registrar of Companies of Cayman Islands or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that Action is in good standing as an exempted
company in Cayman Islands and has filed all tax returns required to have been
filed by it to date and has paid all taxes reported as due
thereon.
Section 7.05. No
Governmental Prohibition.
No order, statute, rule, regulation, executive order, injunction,
stay, decree, judgment or restraining order shall have been enacted, entered,
promulgated or enforced by any court or governmental or regulatory authority or
instrumentality which prohibits the consummation of the transactions contemplated
hereby.
Section 7.06. Consents. All consents, approvals, waivers or
amendments pursuant to all contracts, licenses, permits, trademarks and other
intangibles in connection with the transactions contemplated herein, or for the
continued operation of
Action after the Closing Date on the basis as
presently operated shall have been obtained.
Section 7.07. Shareholder
Report. GPC shall receive a shareholder’s report reflective of all Action shareholders which does not exceed
4,522,197 Action Ordinary Shares issued and outstanding
and no preference
shares issued and
outstanding as of the Closing Date, exclusive of the Exchange
Shares.
Section 7.08. Preference
Shares
Resolution. The Board of
Directors of Action shall have approved the Preference Shares Resolution.
Section 7.09. Charter
Amendments. The Board
of Directors of Action shall have recommended that the Charter
Amendments be presented to its shareholders for their
approval.
Section 7.10. Organizational
Meeting Minutes.
GPC shall have received the organizational
meeting minutes of Action.
Section 7.11. Change in
Management and Board. The
change in management and of the Board of Directors of Action shall have been recommended or occurred as set forth in Section 5.04
hereof.
Section 7.13. Other
Items. GPC shall have received further opinions,
documents, certificates, or instruments relating to the transactions
contemplated hereby as GPC may reasonably
request.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Brokers. Action, the Action Shareholders, GPC and the GPC Shareholders agree that, except as set out on
Schedule
8.01. attached hereto, there were no finders
or brokers involved in bringing the parties together or who were instrumental in
the negotiation, execution or consummation of this Agreement. Action and the Action Shareholders (jointly and severally), on one hand, and GPC and each of the GPC Shareholders (jointly and severally), on the other,
agree to indemnify the other against any claim by any third person other than
those described above for
any commission, brokerage, or finder’s fee arising from the transactions
contemplated hereby based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or implied from the
actions of the indemnifying
party.
19
Section 8.02. Governing
Law. This Agreement shall
be governed by, enforced, and construed under and in accordance with the laws of
the United States of America and, with respect to the matters of state law, with
the laws of the
State of New
York, without giving effect
to principles of conflicts of law thereunder. Each of the parties (a) irrevocably
consents and agrees that any legal or equitable action or proceedings arising
under or in connection with this Agreement shall be brought exclusively in the federal
courts of the United States. By execution and delivery of this Agreement, each
party hereto irrevocably submits to and accepts, with respect to any such action
or proceeding, generally and unconditionally, the jurisdiction of the aforesaid court, and
irrevocably waives any and all rights such party may now or hereafter have to
object to such jurisdiction. Each of the parties hereto agree that service of
process to any party with respect to any action relating to the transactions contemplated by the Agreement
may be accomplished pursuant to the methods set forth in Section
9.03.
Section 8.03. Notices. Any notice or other communications
required or permitted hereunder shall be in writing and shall be sufficiently
given if personally
delivered to it or sent by telecopy, overnight courier or registered mail or
certified mail, postage prepaid, addressed as follows:
If to GPC, to:
Akara Bldg., 00 Xx Xxxxxx Xxxxxx,
Xxxxxxxx Cay 1
Road Town, Tortola, British Virgin
Islands
With copies to:
Xxxxxxx X. Xxxxxxxx,
Esq.
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX
00000
FAX: (000) 000-0000
If to the GPC Shareholders to:
Xxxxx Xxxx
c/o Sunrise Capital Partners, LLC
1601-1602, South Tower, Poly
International Plaza
Xx.0 Xxxxxx Xxxxxx Xxxx, Xxxxxx
Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx Xxxxxxxx,
China
510308
If to Action, to:
c/o Maxim Group, LLC
Attn: Xxxxxxx
Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
FAX: (000)
000-0000
If to a Action Shareholder
c c/o Maxim Group, LLC
Attn: Xxxxxxx
Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
FAX: (000)
000-0000
or such other addresses as shall be
furnished in writing by any party in the manner for giving notices hereunder,
and any such notice or communication shall be deemed to have been given (a) upon receipt, if personally delivered,
(b) on the day after dispatch, if sent by
overnight courier, (c) upon dispatch, if transmitted by
telecopy and receipt is confirmed by telephone and (d) three (3) days after mailing, if sent
by registered or certified
mail.
20
Section 8.04. Attorneys’
Fees. In the event that
either party institutes any action or suit to enforce this Agreement or to
secure relief from any default hereunder or breach hereof, the prevailing party
shall be reimbursed by the
losing party for all costs,
including reasonable attorneys’ fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered
therein.
Section 8.05. Confidentiality. Each party hereto agrees with the other
that, unless and until the
transactions contemplated by this Agreement have been consummated, it and its
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any
books or records or from personal inspection, of such other party, and shall not
use such data or information or disclose the same to others, except
(a) to the extent such data
or information is published, is a matter of public knowledge, or is
required by law to be
published; or (b) to the
extent that such data or information must be used or disclosed in order to
consummate the transactions contemplated by this Agreement. In the event of the
termination of this Agreement, each party shall return to the other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, work papers, abstracts or other materials
relating thereto, and each party will continue to comply with the confidentiality provisions set forth
herein.
Section 8.06. Public
Announcements and Filings.
Unless required by applicable law or regulatory authority, none of the parties
will issue any report, statement or press release to the general public, to
the trade, to the general
trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by
the parties. Copies of any such filings, public announcements or disclosures,
including any announcements or disclosures mandated by law or regulatory
authorities, shall be delivered to each party at least one (1) business day prior to the release
thereof.
Section 8.07. Schedules;
Knowledge. Each party is
presumed to have full knowledge of all information set forth in the other
party’s schedules delivered pursuant to this
Agreement.
Section 8.08. Third Party
Beneficiaries. This contract is strictly among the
parties hereto , and, except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
Section 8.09. Entire
Agreement. This Agreement
(including its Schedules and exhibits) represents the entire agreement between
the parties relating to the subject matter thereof and supersedes all prior
agreements, understandings and negotiations, written or oral, with respect
to such subject matter. No supplement, modification or waiver or termination of
this Agreement shall be binding unless executed in writing by the party to be
bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
Section 8.10. Survival;
Termination. The
representations,
warranties, and covenants of the respective parties shall survive the Closing
Date and the consummation of the transactions herein contemplated for a period
of one year.
Section 8.11. Counterparts. This Agreement may be executed in
multiple counterparts, each
of which shall be deemed an original and all of which taken together shall be
but a single instrument.
Section 8.12. Amendment or
Waiver. Every right and
remedy provided herein shall be cumulative with every other right and remedy,
whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior
to the Closing Date, this Agreement may by amended by a writing signed by all
parties hereto, with respect to any of the terms contained herein, and any term
or condition of this Agreement may be waived or the time for performance may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
21
Section 8.13. Commercially
Reasonable Efforts. Subject
to the terms and conditions herein provided, each party shall use its
commercially reasonable
efforts to perform or fulfill all conditions and obligations to be performed or
fulfilled by it under this Agreement so that the transactions contemplated
hereby shall be consummated as soon as practicable. Each party also agrees that
it shall use its commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective this Agreement and the
transactions contemplated
herein.
Section 8.14. Facsimile
Signatures. Facsimile
signatures shall be deemed
valid as to the execution
of this Agreement.
Section 8.15. Mutual
Drafting. No party, nor its
respective counsel, shall be deemed the drafter of this Agreement for purposes of construing
the provisions hereof, and all provisions of this Agreement shall be construed
according to their fair meaning and not strictly for or against any
party.
[Signature Pages
Follow]
22
IN WITNESS
WHEREOF, the corporate
parties hereto have caused
this Agreement to be executed by their respective officers, hereunto duly
authorized, as of the date first-above written.
|
ACTION
ACQUISITION CORPORATION
|
|||
|
By:
|
/s/
Xxxx Xxxxxx
|
||
|
Name:
Xxxx Xxxxxx
|
|||
|
Title:
Chief Executive Officer
|
|||
|
ACTION
SHAREHOLDERS
|
|||
|
Skyline
Investors, LLC
|
|||
|
By:
|
/s/
Xxxx Xxxxxx
|
||
|
Name:
Xxxx Xxxxxx
|
|||
|
Title:
Managing Member
|
|||
|
Nautilus
Global Partners, LLC
|
|||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
||
|
Name:
Xxxxxx Xxxxxxx
|
|||
|
Title:
President
|
|||
Approved and Accepted by the
GPC Shareholders:
|
Name
|
Signature
|
|
|
Apollo
Enterprises International, Inc.
|
/s/
Junning Ma
|
|
|
Name:
Junning Ma
|
||
|
Title:
Director
|
||
|
/s/
Xxxxx Xxxx
|
||
|
Name:
Xxxxx Xxxx
|
||
|
Title: Director
|
||
|
Aubo
Automobile, Inc.
|
/s/
Junning Ma
|
|
|
Name:
Junning Ma
|
||
|
Title: President
& Chief Executive Officer
|
||
|
Universal
Kingdom International, Ltd.
|
/s/
Junning Ma
|
|
|
Name:
Junning Ma
|
||
|
Title: President
& Chief Executive Officer
|
||
|
Golden
Grand Enterprises, Ltd.
|
/s/
Xxxxx Xxxx
|
|
|
Name: Xxxxx
Xxxx
|
||
|
Title:
Managing Partner
|
||
|
Good
Energy Enterprise, Ltd.
|
/s/
Xxxxx Xxxx
|
|
|
Name: Xxxxx
Xxxx
|
||
|
Title: Managing
Partner
|
||
|
Huge
Pine Development, Ltd.
|
/s/
Xxxxx Xxxx
|
|
|
Name: Xxxxx
Xxxx
|
||
|
Title: Managing
Partner
|
23
