AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("the Agreement"), dated as
of the 15th day of March, 2006, by and between DOLPHIN Productions, Inc.,
a Nevada corporation ("DOLPHIN") and Innocom Technology Holdings Limited
(formerly Wisechamp Group Limited), a British Virgin Islands corporation
("INNOCOM") and the shareholders of Innocom ("Shareholders"), with
reference to the following:
A. DOLPHIN is a Nevada corporation organized on June 28,
1998. DOLPHIN has authorized capital stock of 50,000,000 shares,
$.001 par value, of which 770,000 shares are issued and outstanding.
B. INNOCOM is a privately held corporation organized under the
laws of British Virgin Islands on July 12, 2005. INNOCOM has
authorized capital stock of 50,000 shares, $1.00 par value, of which
ONE share is issued and outstanding. INNOCOM has two wholly owned
subsidiaries, CHINARISE CAPITAL (INTERNATIONAL) LIMITED, a British
Virgin Islands corporation ("CHINARISE"), and NEXT GIANT
INTERNATIONAL LIMITED, a British Virgin Islands corporations which in
turn has a wholly owned subisidiary, BEIJING UNISMOBILE COMMUNICATION
TECHNOLOGY CO., LTD., a joint stock limited company established in
The People's Republic of China ("UNISMOBILE"). Within this
Agreement, references to INNOCOM shall apply to each of its
subsidiaries.
C. The respective Boards of Directors of DOLPHIN and INNOCOM
have deemed it advisable and in the best interests of DOLPHIN and
INNOCOM that INNOCOM be acquired by DOLPHIN, pursuant to the terms
and conditions set forth in this Agreement.
D. DOLPHIN and INNOCOM propose to enter into this Agreement
which provides among other things that all of the outstanding shares
of INNOCOM be acquired by DOLPHIN, in exchange for 32,162,500 shares
of DOLPHIN and such additional items as more fully described in the
Agreement.
E. The parties desire the transaction to qualify as a tax-free
reorganization under Section 368 (a)(1)(B) of the Internal Revenue
Code of 1986, as amended.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
THE ACQUISITION
1.01 At the Closing, a total of ONE common share, which represents
all of the outstanding shares of INNOCOM shall be acquired by DOLPHIN in
exchange for 32,162,500 restricted common shares of DOLPHIN (the
"Shares"). The Shares of DOLPHIN to be issued in this transaction shall
be issued as set forth in Exhibit A to this Agreement.
1.02 At the Closing, the INNOCOM shareholders will deliver
certificates for the outstanding shares of INNOCOM, duly endorsed so as to
make DOLPHIN the sole holder thereof, free and clear of all claims and
encumbrances and DOLPHIN shall deliver a transmittal letter directed to
the transfer agent of DOLPHIN directing the issuance of the Shares to the
shareholders of INNOCOM as set forth on Exhibit A of this Agreement.
1.03 Following the reorganization there will be a total of
32,935,000 shares, $.001 par value, issued and outstanding in DOLPHIN.
1.04 Following the reorganization, INNOCOM will be a wholly owned
subsidiary of DOLPHIN.
1.05 DOLPHIN shall pay and settle all liabilities incurred prior to
closing.
ARTICLE 2
THE CLOSING
2.01 The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at 0000 Xxxx 000 Xxxxx,
Xxxxxxxxx, XX 00000 on or before March 30, 2006 (the "Closing Date") or
at such other place or date and time as may be agreed to in writing by
the parties hereto.
2.02 The following conditions are a part of this Agreement and must
be completed on the Closing Date, or such other date specified by the
parties:
(a) Xx. Xxxxxxx Xxx Xxx XXX will be appointed to, and shall be the
sole member of, the Board of Directors of DOLPHIN. Xxxxxxx X. Xxxxxx,
Xxxxx X. Xxxxxxxxxx, Xxxxxx Xxxxxxxxx and Xxxxxx Xxxxxxxx will resign as
directors of DOLPHIN to be effective 10 days after mailing the 14F
Information Statement to shareholders of DOLPHIN and filing the 14F
Information Statement with the Securities and Exchange Commission.
(b) Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxx X. Xxxxxxxxxx and
Xxxxxx Xxxxxxxxx will resign as officers of DOLPHIN and Xx. Xxxxxxx Xxx
Xxx XXX will be appointed as President, Secretary and Treasurer of
DOLPHIN.
(c) Post closing, DOLPHIN shall obtain shareholder approval to amend
its Articles of Incorporation to change the name of the Company to Innocom
Technologies, Inc. or such similar name as is available in the State of
Nevada;
(d) Post closing, DOLPHIN shall obtain shareholder approval to
increase its authorized common stock to 300,000,000 shares, $.001 par
value.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF DOLPHIN PRODUCTIONS, INC.
DOLPHIN hereby represents and warrants to INNOCOM as follows:
3.01 DOLPHIN shall deliver to INNOCOM, on or before Closing, each
of the following:
(a) Financial Statements. Audited financial statements of
DOLPHIN including, but not limited to, balance sheets and profit and
loss statements from the fiscal years end 2004 and 2005, prepared in
accordance with generally accepted accounting principles and which
fairly present the financial condition of DOLPHIN at the dates
thereof. (Schedule A).
(b) Property. An accurate list and description of all
property, real or personal, owned by DOLPHIN of a value equal to or
greater than $1,000.00. (Schedule B.)
(c) Liens and Liabilities. A complete and accurate list of all
material liens, encumbrances, easements, security interests or
similar interests in or on any of the assets listed on Schedule A.
(Schedule C.) A complete and accurate list of all debts, liabilities
and obligations of DOLPHIN incurred or owing as of the date of this
Agreement. (Schedule C.1.)
(d) Leases and Contracts. A complete and accurate list
describing all material terms of each lease (whether of real or
personal property) and each contract, promissory note, mortgage,
license, franchise, or other written agreement to which DOLPHIN is a
party which involves or can reasonably be expected to involve
aggregate future payments or receipts by DOLPHIN (whether by the
terms of such lease, contract, promissory note, license, franchise or
other written agreement or as a result of a guarantee of the payment
of or indemnity against the failure to pay same) of $1,000.00 or more
annually during the twelve-month period ended December 31, 2005, or
any consecutive twelve-month period thereafter, except any of said
instruments which terminate or are cancelable without penalty during
such twelve-month period. (Schedule D.)
(e) Loan Agreements. Complete and accurate copies of all loan
agreements and other documents with respect to obligations of DOLPHIN
for the repayment of borrowed money. (Schedule E.)
(f) Consents Required. A complete list of all agreements
wherein consent to the transaction herein contemplated is required to
avoid a default thereunder; or where notice of such transaction is
required at or subsequent to closing, or where consent to an
acquisition, consolidation, or sale of all or substantially all of
the assets is required to avoid a default thereunder. (Schedule F.)
(g) Articles and Bylaws. Complete and accurate copies of the
Certificate and Articles of Incorporation and Bylaws of DOLPHIN
together with all amendments thereto to the date hereof. (Schedule
G.)
(h) Shareholders. A complete list of all persons or entities
holding capital stock of DOLPHIN (as certified by DOLPHIN's transfer
agent) or any rights to subscribe for, acquire, or receive shares of
the capital stock of DOLPHIN (whether warrants, calls, options, or
conversion rights), including copies of all stock option plans
whether qualified or nonqualified, and other similar agreements.
(Schedule H.)
(i) Officers and Directors. A complete and current list of
all Officers and Directors of DOLPHIN, each of whom shall resign
effective as of the Closing Date. (Schedule I.)
(j) Salary Schedule. A complete and accurate list (in all
material respects) of the names and the current salary rate for each
present employee of DOLPHIN who received $1,000.00 or more in
aggregate compensation from DOLPHIN whether in salary, bonus or
otherwise, during the year 2005, or who is presently scheduled to
receive from DOLPHIN a salary in excess of $1,000.00 during the year
ending December 31, 2006, including in each case the amount of
compensation received or scheduled to be received, and a schedule of
the hourly rates of all other employees listed according to
departments. All such employees are "at will" employees of DOLPHIN.
(Schedule J.)
(k) Litigation. A complete and accurate list (in all material
respects) of all material civil, criminal, administrative,
arbitration or other such proceedings or investigations (including
without limitations unfair labor practice matters, labor organization
activities, environmental matters and civil rights violations)
pending or, to the knowledge of DOLPHIN threatened, which may
materially and adversely affect DOLPHIN. (Schedule K.)
(l) Tax Returns. Accurate copies of all Federal and State tax
returns for DOLPHIN for the last fiscal year. (Schedule L.)
(m) Agency Reports. Copies of all material reports or filings
(and a list of the categories of reports or filings made on a regular
basis) made by DOLPHIN under ERISA, EEOC, FDA and all other
governmental agencies (federal, state or local) during the last
fiscal year. (Schedule M.)
(n) Banks. A true and complete list (in all material
respects), as of the date of this Agreement, showing (1) the name of
each bank in which DOLPHIN has an account or safe deposit box, and
(2) the names and addresses of all signatories. (Schedule N.)
(o) Jurisdictions Where Qualified. A list of all jurisdictions
wherein DOLPHIN is qualified to do business and is in good standing.
(Schedule O.)
(p) Subsidiaries. A complete list of all subsidiaries of
DOLPHIN. (Schedule P.) The term "Subsidiary" or "Subsidiaries"
shall include corporations, unincorporated associations,
partnerships, joint ventures, or similar entities in which DOLPHIN
has an interest, direct or indirect.
(q) Union Matters. An accurate list and description (in all
material respects) of all union contracts and collective bargaining
agreements of DOLPHIN, if any. (Schedule Q.)
(r) Employee and Consultant Contracts. A complete and accurate
list of all employee and consultant contracts, which DOLPHIN may
have, other than those listed in the schedule on Union Matters.
(Schedule R.)
(s) Employee Benefit Plans. Complete and accurate copies of
all salary, stock options, bonus, incentive compensation, deferred
compensation, profit sharing, retirement, pension, group insurance,
disability, death benefit or other benefit plans, trust agreements or
arrangements of DOLPHIN in effect on the date hereof or to become
effective after the date thereof, together with copies of any
determination letters issued by the Internal Revenue Service with
respect thereto. (Schedule S.)
(t) Insurance Policies. A complete and accurate list (in all
material respects) and a description of all material insurance
policies naming DOLPHIN as an insured or beneficiary or as a loss
payable payee or for which DOLPHIN has paid all or part of the
premium in force on the date hereof, specifying any notice or other
information possessed by DOLPHIN regarding possible claims
thereunder, cancellation thereof or premium increases thereon,
including any policies now in effect naming DOLPHIN as beneficiary
covering the business activities of DOLPHIN. (Schedule T.)
(u) Customers. A complete and accurate list (in all material
respects) of the customers of DOLPHIN, including presently effective
contracts of DOLPHIN to be assigned to DOLPHIN, accounting for the
principle revenues of DOLPHIN, indicating the dollar amounts of gross
income of each such customer for the period ended June 30, 2005.
(Schedule U.)
(v) Licenses and Permits. A complete list of all licenses,
permits and other authorizations of DOLPHIN. (Schedule V.)
3.02 Organization, Standing and Power. DOLPHIN is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada with all requisite corporate power to own or lease its
properties and carry on its businesses as are now being conducted.
3.03 Qualification. DOLPHIN is duly qualified and is licensed as a
foreign corporation authorized to do business in each jurisdiction wherein
it conducts its business operations. Such jurisdictions, which are the
only jurisdictions in which DOLPHIN is duly qualified and licensed as a
foreign corporation, are shown in Schedule O.
3.04 Capitalization of DOLPHIN. The authorized capital stock of DOLPHIN
consists of 50,000,000 shares of Common Stock, $.001 par value, of which
the only shares issued and outstanding are 770,000 issued to shareholders
listed on Schedule H, which shares were duly authorized, validly issued
and fully paid and nonassessable, and were issued in accordance with the
registration or qualification provisions of the Securities Act of 1933, as
amended (the "Act") and any relevant state securities laws or pursuant to
valid exemptions therefrom. There are no preemptive rights with respect
to the DOLPHIN stock. There is no agreement or understanding between any
persons and/or entities, which affects or relates to the voting or giving
of written consents with respect to any security or by a director of
DOLPHIN.
3.05 Authority. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate actions, including but not limited
to duly and validly authorized action and approval by the Board of
Directors, on the part of DOLPHIN. This Agreement constitutes the valid
and binding obligation of DOLPHIN enforceable against it in accordance
with its terms, subject to the principles of equity applicable to the
availability of the remedy of specific performance. This Agreement has
been duly executed by DOLPHIN and the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement shall not result in any breach of any terms or provisions of
DOLPHIN's Certificate and Articles of Incorporation or Bylaws or of any
other agreement, court order or instrument to which DOLPHIN is a party or
bound by.
3.06 Absence of Undisclosed Liabilities. DOLPHIN has no material
liabilities of any nature, whether fixed, absolute, contingent or accrued,
which were not reflected on the financial statements set forth in Schedule
A or otherwise disclosed in this Agreement or any of the Schedules or
Exhibits attached hereto. As of the Closing, DOLPHIN shall have no assets
or liabilities other than those resulting from the acquisition of INNOCOM.
3.07 Absence of Changes. Since December 31, 2005, there has not been any
material adverse change in the condition (financial or otherwise), assets,
liabilities, earnings or business of DOLPHIN, except for changes resulting
from completion of those transactions described in Section 2.02(e) and
Section 5.01
3.08 Tax Matters. All taxes and other assessments and levies which
DOLPHIN is required by law to withhold or to collect have been duly
withheld and collected, and have been paid over to the proper government
authorities or are held by DOLPHIN in separate bank accounts for such
payment or are represented by depository receipts, and all such
withholdings and collections and all other payments due in connection
therewith (including, without limitation, employment taxes, both the
employee's and employer's share) have been paid over to the government or
placed in a separate and segregated bank account for such purpose. There
are no known deficiencies in income taxes for any periods and further, the
representations and warranties as to absence of undisclosed liabilities
contained in Section 3.06 includes any and all tax liabilities of
whatsoever kind or nature (including, without limitation, all federal,
state, local and foreign income, profit, franchise, sales, use and
property taxes) due or to become due, incurred in respect of or measured
by DOLPHIN income or business prior to the Closing Date.
3.09 Options, Warrants, etc. Except as otherwise described in Schedule
H, there are no outstanding options, warrants, calls, commitments or
agreements of any character to which DOLPHIN or its shareholders are a
party or by which DOLPHIN or its shareholders are bound, or are a party,
calling for the issuance of shares of capital stock of DOLPHIN or any
securities representing the right to purchase or otherwise receive any
such capital stock of DOLPHIN.
3.10 Title to Assets. Except for liens set forth in Schedule C, DOLPHIN
is the sole unconditional owner of, with good and marketable title to, all
assets listed in the schedules as owned by it and all other property and
assets are free and clear of all mortgages, liens, pledges, charges or
encumbrances of any nature whatsoever.
3.11 Agreements in Force and Effect. Except as set forth in Schedules D
and E, all material contracts, agreements, plans, promissory notes,
mortgages, leases, policies, licenses, franchises or similar instruments
to which DOLPHIN is a party are valid and in full force and effect on the
date hereof, and DOLPHIN has not breached any material provision of, and
is not in default in any material respect under the terms of, any such
contract, agreement, plan, promissory note, mortgage, lease, policy,
license, franchise or similar instrument which breach or default would
have a material adverse effect upon the business, operations or financial
condition of DOLPHIN.
3.12 Legal Proceedings, Etc. Except as set forth in Schedule K, there are
no civil, criminal, administrative, arbitration or other such proceedings
or investigations pending or, to the knowledge of either DOLPHIN or the
shareholders thereof, threatened, in which, individually or in the
aggregate, an adverse determination would materially and adversely affect
the assets, properties, business or income of DOLPHIN. DOLPHIN has
substantially complied with, and is not in default in any material respect
under, any laws, ordinances, requirements, regulations or orders
applicable to its businesses.
3.13 Governmental Regulation. To the knowledge of DOLPHIN and except as
set forth in Schedule K, DOLPHIN is not in violation of or in default with
respect to any applicable law or any applicable rule, regulation, order,
writ or decree of any court or any governmental commission, board, bureau,
agency or instrumentality, or delinquent with respect to any report
required to be filed with any governmental commission, board, bureau,
agency or instrumentality which violation or default could have a material
adverse effect upon the business, operations or financial condition of
DOLPHIN.
3.14 Brokers and Finders. DOLPHIN shall be solely responsible for
payment to any broker or finder retained by DOLPHIN for any brokerage
fees, commissions or finders' fees in connection with the transactions
contemplated herein. DOLPHIN has not agreed to pay any fees or commissions
to any party.
3.15 Accuracy of Information. No representation or warranty by DOLPHIN
contained in this Agreement and no statement contained in any certificate
or other instrument delivered or to be delivered to INNOCOM pursuant
hereto or in connection with the transactions contemplated hereby
(including without limitation all Schedules and exhibits hereto) contains
or will contain any untrue statement of material fact or omits or will
omit to state any material fact necessary in order to make the statements
contained herein or therein not misleading.
3.16 Subsidiaries. Except as listed in Schedule P, DOLPHIN does not have
any other subsidiaries or own capital stock of any other corporation.
3.17 Consents. Except as listed in Schedule F, no consent or approval
of, or registration, qualification or filing with, any governmental
authority or other person is required to be obtained or accomplished by
DOLPHIN or any shareholder thereof in connection with the consummation of
the transactions contemplated hereby.
3.18 Improper Payments. Neither DOLPHIN, nor any person acting on behalf
of DOLPHIN has made any payment or otherwise transmitted anything of
value, directly or indirectly, to (a) any official or any government or
agency or political subdivision thereof for the purpose of influencing any
decision affecting the business of DOLPHIN (b) any customer, supplier or
competitor of DOLPHIN or employee of such customer, supplier or
competitor, for the purpose of obtaining, retaining or directing business
for DOLPHIN or (c) any political party or any candidate for elective
political office nor has any fund or other asset of DOLPHIN been
maintained that was not fully and accurately recorded on the books of
account of DOLPHIN.
3.19 Copies of Documents. DOLPHIN has made available for inspection and
copying by INNOCOM and its duly authorized representatives, and will
continue to do so at all times, true and correct copies of all documents
which it has filed with the Securities and Exchange Commission and all
other governmental agencies which are material to the terms and conditions
contained in this Agreement. Furthermore, all filings by DOLPHIN with the
Securities and Exchange Commission, and all other governmental agencies,
including but not limited to the Internal Revenue Service, have contained
information which is true and correct, to the best knowledge of the Board
of Directors of DOLPHIN, in all material respects and did not contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements made therein not misleading or which
could have any material adverse effect upon the financial condition or
operations of DOLPHIN or adversely effect the objectives of this Agreement
with respect to INNOCOM including, but not limited to, the issuance and
subsequent trading of the shares of common stock of DOLPHIN to be received
hereby, subject to compliance by the shareholders of INNOCOM with
applicable law.
3.20 Valid Issuance of Securities. The Shares, when issued, sold and
delivered in accordance with the terms of this Agreement for the
consideration expressed herein, will be duly and validly issued, fully
paid and non-assessable, and will be free of restrictions on transfer
other than restrictions on transfer under this Agreement and under
applicable state and federal securities laws.
3.21 Related Party Transactions. No employee, officer or director of the
Company or member of his or her immediate family is indebted to the
Company, nor is the Company indebted (or committed to make loans or extend
or guarantee credit) to any of them. No member of the immediate family of
any officer or director of the Company is directly or indirectly
interested in any material contract with the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
INNOCOM TECHNOLOGY HOLDINGS LIMITED
INNOCOM hereby represents and warrants to DOLPHIN as follows:
4.01 INNOCOM shall deliver to DOLPHIN, on or before Closing, the
following:
(a) Financial Statements. Audited financial statements of
INNOCOM and its subsidiaries, including, but not limited to, balance
sheets and profit and loss statements from the fiscal year end 2004
and 2005, prepared in accordance with generally accepted accounting
principles and which fairly present the financial condition of
INNOCOM at the dates thereof. (Schedule AA)
(b) Property. An accurate list and description of all
property, real or personal owned by INNOCOM of a value equal to or
greater than $1,000.00. (Schedule BB)
(c) Liens and Liabilities. A complete and accurate list of all
material liens, encumbrances, easements, security interests or
similar interests in or on any of the assets listed on Schedule AA.
(Schedule CC.) A complete and accurate list of all debts,
liabilities and obligations of INNOCOM incurred or owing as of the
date of this Agreement. (Schedule CC.1.)
(d) Leases and Contracts. A complete and accurate list
describing all material terms of material leases (whether of real or
personal property) and each contract, promissory note, mortgage,
license, franchise, or other written agreement to which INNOCOM is a
party which involves or can reasonably be expected to involve
aggregate future payments or receipts by INNOCOM (whether by the
terms of such lease, contract, promissory note, license,
franchise or other written agreement or as a result of a
guarantee of the payment of or indemnity against the failure to
pay same) of $1,000.00 or more annually during the twelve-month
period ended December 31, 2005 or any consecutive twelve-month
period thereafter, except any of said instruments which terminate or
are cancelable without penalty during such twelve-month period.
(Schedule DD.)
(e) Loan Agreements. Complete and accurate copies of all loan
agreements and other documents with respect to obligations of INNOCOM
for the repayment of borrowed money. (Schedule EE.)
(f) Consents Required. A complete list of all
agreements wherein consent to the transaction herein contemplated is
required to avoid a default thereunder; or where notice of such
transaction is required at or subsequent to closing, or where
consent to an acquisition, consolidation, or sale of all or
substantially all of the assets is required to avoid a default
thereunder. (Schedule FF.)
(g) Articles and Bylaws. Complete and accurate copies of the
Articles of Incorporation and Bylaws of INNOCOM, together with all
amendments thereto to the date hereof. (Schedule GG.)
(h) Shareholders. A complete list of all persons or
entities holding capital stock of INNOCOM or any rights to
subscribe for, acquire, or receive shares of the capital stock
of INNOCOM (whether warrants, calls, options, or conversion
rights), including copies of all stock option plans whether
qualified or nonqualified, and other similar agreements. (Schedule
HH.)
(i) Officers and Directors. A complete and current list of
all officers and Directors of INNOCOM. (Schedule II.)
(j) Salary Schedule. A complete and accurate list (in all
material respects) of the names and the current salary rate or
each present employee of INNOCOM who received $1,000 or more in
aggregate compensation from INNOCOM whether in salary, bonus or
otherwise, during the year 2005, or who is presently scheduled to
receive from INNOCOM a salary in excess of $1,000.00 during the year
ending December 31, 2006, including in each case the amount of
compensation received or scheduled to be received, and a schedule of
the hourly rates of all other employees listed according to
departments. (Schedule JJ.)
(k) Litigation. A complete and accurate list (in all material
respects) of all material civil, criminal, administrative,
arbitration or other such proceedings or investigations
(including without limitations unfair labor practice matters,
labor organization activities, environmental matters and civil
rights violations) pending or, to the knowledge of INNOCOM
threatened, which may materially and adversely affect INNOCOM.
(Schedule KK.)
(l) Tax Returns. Accurate copies of all Federal and State tax
returns for INNOCOM, if any. (Schedule LL.)
(m) Agency Reports. Copies of all material reports or filings
(and a list of the categories of reports or filings made on a regular
basis) made by INNOCOM under ERISA, EEOC, FDA and all other
governmental agencies (federal, state or local). (Schedule MM.)
(n) A true and complete list (in all material respects), as of
the date of this Agreement, showing (1) the name of each bank in
which INNOCOM has an account or safe deposit box, and (2) the names
and addresses of all signatories. (Schedule NN.)
(o) Jurisdictions Where Qualified. A list of all jurisdictions
wherein INNOCOM is qualified to do business and is in good standing.
(Schedule OO.)
(p) Subsidiaries. A complete list of all subsidiaries of
INNOCOM. (Schedule PP.) The term "Subsidiary" or "Subsidiaries"
shall include corporations, unincorporated associations,
partnerships, joint ventures, or similar entities in which INNOCOM
has an interest, direct or indirect.
(q) Union Matters. An accurate list and description (in all
material respects of union contracts and collective bargaining
agreements of INNOCOM, if any. (Schedule QQ.)
(r) Employee and Consultant Contracts. A complete and accurate
list of all employee and consultant contracts, which INNOCOM may
have, other than those listed in the schedule on Union Matters.
(Schedule RR.)
(s) Employee Benefit Plans. Complete and accurate copies
of all salary, stock option, bonus, incentive compensation,
deferred compensation, profit sharing, retirement, pension, group
insurance, disability, death benefit or other benefit plans, trust
agreements or arrangements of INNOCOM in effect on the date hereof
or to become effective after the date thereof, together with copies
of any determination letters issued by the Internal Revenue Service
with respect thereto. (Schedule SS.)
(t) Insurance Policies. A complete and accurate list (in all
material respects) and description of all material insurance
policies naming INNOCOM as an insured or beneficiary or as a loss
payable payee or for which INNOCOM has paid all or part of the
premium in force on the date hereof, specifying any notice or other
information possessed by INNOCOM regarding possible claims
thereunder, cancellation thereof or premium increases thereon,
including any policies now in effect naming INNOCOM as beneficiary
covering the business activities of INNOCOM. (Schedule TT.)
(u) Customers. A complete and accurate list (in all
material respects) of the customers of INNOCOM, including all
presently effective contracts of INNOCOM to be assigned to
INNOCOM, accounting for the principle revenues of INNOCOM,
indicating the dollar amounts of gross revenues of each such
customer for the period ended as of a recent date. (Schedule UU.)
(v) Licenses and Permits. A complete list of all licenses,
permits and other authorizations of INNOCOM. (Schedule VV.)
4.02 Organization, Standing and Power. INNOCOM is a corporation duly
organized, validly existing and in good standing under the laws of the
British Virgin Islands, with all requisite corporate power to own or
lease its properties and carry on its business as is now being conducted.
4.03 Qualification. INNOCOM is duly qualified and licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it
conducts business operations. Such jurisdictions, which are the only
jurisdictions in which INNOCOM is duly qualified and licensed as a foreign
corporation, is shown in Schedule OO.
4.04 Capitalization of INNOCOM. The authorized capital stock of INNOCOM
consists of 50,000 shares of Common Stock, par value $.001 per share, of
which the only shares issued and outstanding are ONE share issued to the
shareholder listed on Schedule HH, which share was duly authorized,
validly issued and fully paid and nonassessable. There are no preemptive
rights with respect to the INNOCOM stock.
4.05 Authority. The execution and delivery of this Agreement and
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action, including but not limited to
duly and validly authorized action and approval by the Board of Directors,
on the part of INNOCOM. This Agreement constitutes the valid and binding
obligation of INNOCOM, enforceable against it in accordance with its
terms, subject to the principles of equity applicable to the availability
of the remedy of specific performance. This Agreement has been duly
executed by INNOCOM and the execution and delivery of this Agreement and
the consummation of the transactions contemplated by this Agreement shall
not result in any breach of any terms or provisions of INNOCOM 's Articles
of Incorporation or Bylaws or of any other agreement, court order or
instrument to which INNOCOM is a party or bound.
4.06 Absence of Undisclosed Liabilities. INNOCOM has no material
liabilities of any nature, whether fixed, absolute, contingent or accrued,
which were not reflected on the financial statements set forth in Schedule
AA or otherwise disclosed in this Agreement or any of the Schedules or
Exhibits attached hereto.
4.07 Absence of Changes. Since inception, there has not been any
material adverse change in the condition (financial or otherwise),
assets, liabilities, earnings or business of INNOCOM, except for changes
resulting from completion of those transactions described in Section
5.02.
4.08 Tax Matters. All taxes and other assessments and levies which
INNOCOM is required by law to withhold or to collect have been duly
withheld and collected, and have been paid over to the proper government
authorities or are held by INNOCOM in separate bank accounts for such
payment or are represented by depository receipts, and all such
withholdings and collections and all other payments due in connection
therewith (including, without limitation, employment taxes, both the
employee's and employer's share) have been paid over to the
government or placed in a separate and segregated bank account for such
purpose. There are no known deficiencies in income taxes for any
periods and further, the representations and warranties as to absence
of undisclosed liabilities contained in Section 4.06 includes any and
all tax liabilities of whatsoever kind or nature (including, without
limitation, all federal, state, local and foreign income, profit,
franchise, sales, use and property taxes) due or to become due,
incurred in respect of or measured by INNOCOM income or business prior
to the Closing Date.
4.09 Options, Warrants, etc. Except as otherwise described in Schedule
HH, there are no outstanding options, warrants, calls, commitments or
agreements of any character to which INNOCOM or its shareholders are a
party or by which INNOCOM or its shareholders are bound, or are a party,
calling for the issuance of shares of capital stock of INNOCOM or any
securities representing the right to purchase or otherwise receive any
such capital stock of INNOCOM .
4.10 Title to Assets. Except for liens set forth in Schedule CC,
INNOCOM is the sole and unconditional owner of, with good and
marketable title to, all the assets and patents listed in the
schedules as owned by them and all other property and assets are free
and clear of all mortgages, liens, pledges, charges or encumbrances
of any nature whatsoever.
4.11 Agreements in Force and Effect. Except as set forth in Schedules
DD and EE, all material contracts, agreements, plans, promissory
notes, mortgages, leases, policies, licenses, franchises or similar
instruments to which INNOCOM is a party are valid and in full force
and effect on the date hereof, and INNOCOM has not breached any
material provision of, and is not in default in any material respect
under the terms of, any such contract, agreement, plan, promissory
note, mortgage, lease, policy, license, franchise or similar instrument
which breach or default would have a material adverse effect upon
the business, operations or financial condition of INNOCOM.
4.12 Legal Proceedings, Etc. Except as set forth in Schedule KK,
there are no civil, criminal, administrative, arbitration or other
such proceedings or investigations pending or, to the knowledge of
INNOCOM, threatened, in which, individually or in the aggregate, an
adverse determination would materially and adversely affect the assets,
properties, business or income of INNOCOM . INNOCOM has
substantially complied with, and is not in default in any material
respect under, any laws, ordinances, requirements, regulations or
orders applicable to its businesses.
4.13 Governmental Regulation. To the knowledge of INNOCOM and except as
set forth in Schedule KK, INNOCOM is not in violation of or in default
with respect to any applicable law or any applicable rule, regulation,
order, writ or decree of any court or any governmental commission,
board, bureau, agency or instrumentality, or delinquent with respect
to any report required to be filed with any governmental commission,
board, bureau, agency or instrumentality which violation or default
could have a material adverse effect upon the business,
operations or financial condition of INNOCOM.
4.14 Broker and Finders. INNOCOM shall be solely responsible for payment
to any broker or finder retained by INNOCOM for any brokerage fees,
commissions or finders' fees in connection with the transactions
contemplated herein.
4.15 Accuracy of Information. No representation or warranty by
INNOCOM contained in this Agreement and no statement contained in any
certificate or other instrument delivered or to be delivered to DOLPHIN
pursuant hereto or in connection with the transactions contemplated hereby
(including without limitation all Schedules and Exhibits hereto)
contains or will contain any untrue statement of a material fact or omits
or will omit to state any material fact necessary in order to make the
statements contained herein or therein not misleading.
4.16 Subsidiaries. Except as listed in Schedule PP, INNOCOM does not
have any other subsidiaries or own capital stock representing ten
percent (10%) or more of the issued and outstanding stock of any
other corporation.
4.17 Consents. Except as listed in Schedule FF, no consent or approval
of, or registration, qualification or filing with, any other governmental
authority or other person is required to be obtained or accomplished by
INNOCOM or any shareholder thereof, in connection with the consummation of
the transactions contemplated hereby.
4.18 Improper Payments. No person acting on behalf of INNOCOM has made
any payment or otherwise transmitted anything of value, directly or
indirectly, to (a) any official or any government or agency or
political subdivision thereof for the purpose of influencing any
decision affecting the business of INNOCOM, or (b) any political party
or any candidate for elective political office, nor has any fund or other
asset of INNOCOM been maintained that was not fully and accurately
recorded on the books of account of INNOCOM.
4.19 Copies of Documents. INNOCOM has made available for
inspection and copying by DOLPHIN and its duly authorized
representatives, and will continue to do so at all times, true and
correct copies of all documents which it has filed with any governmental
agencies which are material to the terms and conditions contained
in this Agreement. Furthermore, all filings by INNOCOM with
governmental agencies, including but not limited to the Internal Revenue
Service, have contained information which is true and correct in all
material respects and did not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
made therein not misleading or which could have any material adverse
effect upon the financial condition or operations of INNOCOM or
adversely affect the objectives of this Agreement.
4.20 Investment Intent of Shareholders. Each shareholder of INNOCOM
represents and warrants to DOLPHIN that the shares of DOLPHIN being
acquired pursuant to this Agreement are being acquired for his own account
and for investment and not with a view to the public resale or
distribution of such shares and further acknowledges that the shares
being issued have not been registered under the Securities Act
and are "restricted securities" as that term is defined in Rule 144
promulgated under the Securities Act and must be held indefinitely unless
they are subsequently registered under the Securities Act or an
exemption from such registration is available.
ARTICLE 5
CONDUCT AND TRANSACTIONS PRIOR TO THE
EFFECTIVE TIME OF THE ACQUISITION
5.01 Conduct and Transactions of DOLPHIN. During the period from the
date hereof to the date of Closing, DOLPHIN shall:
(a) Conduct its operations in the ordinary course of
business, including but not limited to, paying all obligations as
they mature, complying with all applicable tax laws, filing all
tax returns required to be filed and paying all taxes due;
(b) Maintain its records and books of account in a manner
that fairly and correctly reflects its income, expenses, assets and
liabilities.
DOLPHIN shall not during such period, except in the ordinary course
of business, without the prior written consent of INNOCOM:
(c) Except as otherwise contemplated or required by this
Agreement, sell, dispose of or encumber any of its properties
or assets;
(d) Except as otherwise contemplated or required by this
Agreement, declare or pay any dividends on shares of its capital
stock or make any other distribution of assets to the holders
thereof;
(e) Except as otherwise contemplated or required by this
Agreement, issue, reissue or sell, or issue options or rights to
subscribe to, or enter into any contract or commitment to issue,
reissue or sell, any shares of its capital stock or acquire or
agree to acquire any shares of its capital stock;
(f) Except as otherwise contemplated and required by this
Agreement, amend its Articles of Incorporation or merge or
consolidate with or into any other corporation or sell all or
substantially all of its assets or change in any manner the
rights of its capital stock or other securities;
(g) Except as contemplated or required by this
Agreement, pay or incur any obligation or liability, direct or
contingent, of more than $1,000 with all liabilities incurred prior
to closing to be paid by DOLPHIN;
(h) Incur any indebtedness for borrowed money, assume,
guarantee, endorse or otherwise become responsible for obligations
of any other party, or make loans or advances to any other party;
(i) Make any material change in its insurance
coverage;
(j) Increase in any manner the compensation, direct or
indirect, of any of its officers or executive employees; except in
accordance with existing employment contracts;
(k) Enter into any agreement or make any commitment to any
labor union or organization;
(l) Make any capital expenditures.
5.02 Conduct and Transactions of INNOCOM. During the period from the
date hereof to the date of Closing, INNOCOM shall:
(a) Obtain an investment letter from each shareholder of
INNOCOM in a form substantially like that attached hereto as Exhibit
B.
(b) Conduct the operations of INNOCOM in the ordinary course
of business.
INNOCOM shall not during such period, except in the ordinary
course of business, without the prior written consent of DOLPHIN:
(c) Except as otherwise contemplated or required by this
Agreement, sell, dispose of or encumber any of the
properties or assets of INNOCOM;
(d) Declare or pay any dividends on shares of its capital
stock or make any other distribution of assets to the holders
thereof;
(e) Issue, reissue or sell, or issue options or rights to
subscribe to, or enter into any contract or commitment to issue,
reissue or sell, any shares of its capital stock or acquire or
agree to acquire any shares of its capital stock without the express
written consent of DOLPHIN;
(f) Except as otherwise contemplated and required by this
Agreement, amend its Articles of Incorporation or merge or
consolidate with or into any other corporation or sell all or
substantially all of its assets or change in any manner the
rights of its capital stock or other securities;
(g) Except as otherwise contemplated and required by this
Agreement, pay or incur any obligation or liability, direct or
contingent, of more than $1,000;
(h) Incur any indebtedness for borrowed money, assume,
guarantee, endorse or otherwise become responsible for obligations
of any other party, or make loans or advances to any other party;
(i) Make any material change in its insurance coverage;
(j) Increase in any manner the compensation, direct or
indirect, of any of its officers or executive employees; except in
accordance with existing employment contracts;
(k) Enter into any agreement or make any commitment to any
labor union or organization;
(l) Make any material capital expenditures in excess of
$1,000.00.
(m) Allow any of the foregoing actions to be taken by any
subsidiary of INNOCOM.
ARTICLE 6
RIGHTS OF INSPECTION
6.01 During the period from the date of this Agreement to the date of
Closing of the acquisition, DOLPHIN and INNOCOM agree to use their best
efforts to give the other party, including its representatives and
agents, full access to the premises, books and records of each of the
entities, and to furnish the other with such financial and operating
data and other information including, but not limited to, copies of all
legal documents and instruments referred to on any schedule or exhibit
hereto, with respect to the business and properties of DOLPHIN or
INNOCOM, as the case may be, as the other shall from time to time
request; provided, however, if there are any such investigations: (1)
they shall be conducted in such manner as not to unreasonably
interfere with the operation of the business of the other parties and (2)
such right of inspection shall not affect in any way whatsoever any of
the representations or warranties given by the respective parties
hereunder. In the event of termination of this Agreement, DOLPHIN and
INNOCOM will each return to the other all documents, work papers and other
materials obtained from the other party in connection with the
transactions contemplated hereby, and will take such other steps necessary
to protect the confidentiality of such material.
ARTICLE 7
CONDITIONS TO CLOSING
7.01 Conditions to Obligations of INNOCOM. The obligation of INNOCOM to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by INNOCOM.
(a) Representations and Warranties. There shall be no
information disclosed in the schedules delivered by DOLPHIN which in
the opinion of INNOCOM would materially adversely affect the proposed
transaction and intent of the parties as set forth in this Agreement.
The representations and warranties of DOLPHIN set forth in Article 3
hereof shall be true and correct in all material respects as of the
date of this Agreement and as of the Closing as though made on
and as of the Closing, except as otherwise permitted by this
Agreement.
(b) Performance of Obligations. DOLPHIN shall have in all
material respects performed all agreements required to be performed
by it under this Agreement and shall have performed in all material
respects any actions contemplated by this Agreement prior to or on
the Closing and DOLPHIN shall have complied in all material
respects with the course of conduct required by this Agreement.
(c) Corporate Action. DOLPHIN shall have furnished minutes,
certified copies of corporate resolutions and/or other documentary
evidence satisfactory to counsel for INNOCOM that DOLPHIN has
submitted with this Agreement and any other documents required hereby
to such parties for approval as provided by applicable law.
(d) Consents. Execution of this Agreement by the
shareholders of INNOCOM and any consents necessary for or approval
of any party listed on any Schedule delivered by DOLPHIN whose
consent or approval is required pursuant thereto shall have been
obtained.
(e) Financial Statements. INNOCOM shall have been furnished
with audited financial statements of DOLPHIN including, but not
limited to, balance sheets and profit and loss statements from fiscal
year end 2004 and 2005. Such financial statements shall have been
prepared in conformity with generally accepted accounting
principles on a basis consistent with those of prior periods and
fairly present the financial position of DOLPHIN as of September
30, 2005.
(f) Statutory Requirements. All statutory requirements for the
valid consummation by DOLPHIN of the transactions contemplated by
this Agreement shall have been fulfilled.
(g) Governmental Approval. All authorizations, consents,
approvals, permits and orders of all federal and state governmental
agencies required to be obtained by DOLPHIN for consummation of the
transactions contemplated by this Agreement shall have been obtained.
(h) Changes in Financial Condition of DOLPHIN. There shall
not have occurred any material adverse change in the financial
condition or in the operations of the business of DOLPHIN, except
expenditures in furtherance of this Agreement.
(i) Absence of Pending Litigation. DOLPHIN is not engaged in
or threatened with any suit, action, or legal, administrative or
other proceedings or governmental investigations pertaining to this
Agreement or the consummation of the transactions contemplated
hereunder.
(j) Authorization for Issuance of Stock. INNOCOM shall have
received in form and substance satisfactory to counsel for INNOCOM a
letter instructing and authorizing the Registrar and Transfer
Agent for the shares of common stock of DOLPHIN to issue stock
certificates representing ownership of DOLPHIN common stock to
INNOCOM shareholders in accordance with the terms of this
Agreement and a letter from said Registrar and Transfer Agent
acknowledging receipt of the letter of instruction and stating to
the effect that the Registrar and Transfer Agent holds adequate
supplies of stock certificates necessary to comply with the
letter of instruction and the terms and conditions of this
Agreement.
7.02 Conditions to Obligations of DOLPHIN. The obligation of DOLPHIN to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by DOLPHIN.
(a) Representations and Warranties. There shall be no
information disclosed in the schedules delivered by INNOCOM, which in
the opinion of DOLPHIN, would materially adversely affect the
proposed transaction and intent of the parties as set forth in this
Agreement. The representations and warranties of INNOCOM set forth
in Article 4 hereof shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing as
though made on and as of the Closing, except as otherwise
permitted by this Agreement.
(b) Performance of Obligations. INNOCOM shall have in all
material respects performed all agreements required to be
performed by it under this Agreement and shall have performed in all
material respects any actions contemplated by this Agreement prior
to or on the Closing and INNOCOM shall have complied in all
respects with the course of conduct required by this Agreement.
(c) Corporate Action. INNOCOM shall have furnished minutes,
certified copies of corporate resolutions and/or other
documentary evidence satisfactory to Counsel for DOLPHIN that
INNOCOM has submitted with this Agreement and any other documents
required hereby to such parties for approval as provided by
applicable law.
(d) Consents. Any consents necessary for or approval of any
party listed on any Schedule delivered by INNOCOM, whose consent or
approval is required pursuant thereto, shall have been obtained.
(e) Financial Statements. DOLPHIN shall have been provided
audited financial statements of INNOCOM including, but not limited
to, balance sheets and profit and loss statements from the fiscal
years end 2004 and 2005, prepared in accordance with generally
accepted accounting principles and which fairly present the financial
condition of INNOCOM at the dates thereof.
(f) Statutory Requirements. All statutory requirements for
the valid consummation by INNOCOM of the transactions
contemplated by this Agreement shall have been fulfilled.
(g) Governmental Approval. All authorizations, consents,
approvals, permits and orders of all federal and state governmental
agencies required to be obtained by INNOCOM for consummation
of the transactions contemplated by this Agreement shall have been
obtained.
(h) Employment Agreements. Existing INNOCOM employment
agreements will have been delivered to counsel for DOLPHIN.
(i) Changes in Financial Condition of INNOCOM . There
shall not have occurred any material adverse change in the financial
condition or in the operations of the business of INNOCOM, except
expenditures in furtherance of this Agreement.
(j) Absence of Pending Litigation. INNOCOM is not engaged
in or threatened with any suit, action, or legal,
administrative or other proceedings or governmental investigations
pertaining to this Agreement or the consummation of the transactions
contemplated hereunder.
(k) Shareholder Approval. The INNOCOM shareholders shall
have approved the Agreement and Plan of Reorganization.
ARTICLE 8
MATTERS SUBSEQUENT TO CLOSING
8.01 Covenant of Further Assurance. The parties covenant and agree that
they shall, from time to time, execute and deliver or cause to be
executed and delivered all such further instruments of conveyance,
transfer, assignments, receipts and other instruments, and shall take
or cause to be taken such further or other actions as the other party
or parties to this Agreement may reasonably deem necessary in order to
carry out the purposes and intent of this Agreement.
8.02 No Further Reverse Split. The parties agree that for a period of 24
months following the closing of this Agreement, no additional reverse
splits of the issued and outstanding stock may occur without the express
written approval of the former Directors of DOLPHIN.
ARTICLE 9
NATURE AND SURVIVAL OF REPRESENTATIONS
9.01 All statements contained in any written certificate, schedule,
exhibit or other written instrument delivered by DOLPHIN or INNOCOM
pursuant hereto, or otherwise adopted by DOLPHIN, by its written
approval, or by INNOCOM by its written approval, or in connection
with the transactions contemplated hereby, shall be deemed
representations and warranties by DOLPHIN or INNOCOM as the case
may be. All representations, warranties and agreements made by either
party shall survive for the period of the applicable statute of
limitations and until the discovery of any claim, loss, liability or other
matter based on fraud, if longer.
ARTICLE 10
TERMINATION OF AGREEMENT AND ABANDONMENT OF REORGANIZATION
10.01 Termination. Anything herein to the contrary notwithstanding, this
Agreement and any agreement executed as required hereunder and the
acquisition contemplated hereby may be terminated at any time before the
Closing as follows:
(a) By mutual written consent of the Boards of
Directors of DOLPHIN and INNOCOM .
(b) By the Board of Directors of DOLPHIN if any of the
conditions set forth in Section 7.02 shall not have been
satisfied by the Closing Date.
(c) By the Board of Directors of INNOCOM if any of the
conditions set forth in Section 7.01 shall not have been
satisfied by the Closing Date.
10.02 Termination of Obligations and Waiver of Conditions; Payment of
Expenses. In the event this Agreement and the acquisition are
terminated and abandoned pursuant to this Article 10 hereof, this
Agreement shall become void and of no force and effect and there shall
be no liability on the part of any of the parties hereto, or their
respective directors, officers, shareholders or controlling persons
to each other. Each party hereto will pay all costs and expenses
incident to its negotiation and preparation of this Agreement and
any of the documents evidencing the transactions contemplated
hereby, including fees, expenses and disbursements of counsel.
ARTICLE 11
EXCHANGE OF SHARES; FRACTIONAL SHARES
11.01 Exchange of Shares. At the Closing, DOLPHIN shall issue a letter
to the transfer agent of DOLPHIN with a copy of the resolution of the
Board of Directors of DOLPHIN authorizing and directing the issuance of
DOLPHIN shares as set forth on Exhibit A to this Agreement.
11.02 Restrictions on Shares Issued to INNOCOM . Due to the fact that
INNOCOM will receive shares of DOLPHIN common stock in connection with
the acquisition which have not been registered under the 1933 Act by
virtue of the exemption provided in Section 4(2) and 4(6) of such Act,
those shares of DOLPHIN will contain the following legend:
The shares represented by this certificate have not
been registered under the Securities Act of 1933. The
shares have been acquired for investment and may not
be sold or offered for sale in the absence of an
effective Registration Statement for the shares
under the Securities Act of 1933 or an opinion of
counsel to the Corporation that such
registration is not required.
ARTICLE 12
MISCELLANEOUS
12.01 Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada excluding the conflicts of
laws.
12.02 Notices. All notices necessary or appropriate under this
Agreement shall be effective when personally delivered or deposited in
the United States mail, postage prepaid, certified or registered,
return receipt requested, and addressed to the parties last known
address which addresses are currently as follows:
If to "DOLPHIN" If to "INNOCOM "
Xx. Xxxxxxx Xxxxxx Xx. Xxxxxxx Xxx
Dolphin Productions, Inc. Innocom Technology Holdings Limited
0000 Xxxx Xxxxxx Xxxx 0, 00/X.,
Xxxx Xxxx Xxxx, XX 00000 Global Gateway (Hong Kong),
00 Xxxx Xxxx Xxxxxx
Xxxxx Xxx, X.X.
With copies to: With copies to:
Xxxx X. Xxxxxxxx, Esq. Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Xxxxx 0000 Xxxx 000 Xxxxx
000 Xxxx 000 Xxxxx, #000 Xxxxxxxxx, XX 00000
Xxxx Xxxx Xxxx, XX 00000
12.03 Amendment and Waiver. The parties hereby may, by mutual
agreement in writing signed by each party, amend this Agreement in
any respect. Any term or provision of this Agreement may be waived
in writing signed by an authorized officer at any time by the party which
is entitled to the benefits thereof, such waiver right shall include,
but not be limited to, the right of either party to:
(a) Extend the time for the performance of any of the
obligations of the other;
(b) Waive any inaccuracies in representations by the other
contained in this Agreement or in any document delivered pursuant
hereto;
(c) Waive compliance by the other with any of the covenants
contained in this Agreement, and performance of any obligations by
the other; and
(d) Waive the fulfillment of any condition that is precedent
to the performance by the party so waiving of any of its obligations
under this Agreement.
Any writing on the part of a party relating to such amendment,
extension or waiver as provided in this Section 12.03 shall be valid
if authorized or ratified by the Board of Directors of such party.
12.04 Remedies not Exclusive. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any
other remedy, and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. The election
of any one or more remedies by DOLPHIN or INNOCOM shall not constitute a
waiver of the right to pursue other available remedies.
12.05 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may
be executed and delivered by facsimile signature and such transmission
shall be deemed a valid signature.
12.06 Benefit. This Agreement shall be binding upon, and inure to the
benefit of, the respective successors and assigns of DOLPHIN and INNOCOM
and its shareholders.
12.07 Entire Agreement. This Agreement and the Schedules and Exhibits
attached hereto, represent the entire agreement of the undersigned
regarding the subject matter hereof, and supersede all prior written or
oral understandings or agreements between the parties.
12.08 Captions and Section Headings. Captions and section headings used
herein are for convenience only and shall not control or affect the
meaning or construction of any provision of this Agreement.
Executed as of the date first written above.
DOLPHIN PRODUCTIONS, INC. INNOCOM TECHNOLOGY HOLDINGS LTD.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxx
Xxxxxxx X. Xxxxxx, President Xxxxxxx Xxx, Chairman
The undersigned hereby approves the Agreement and Plan of
Reorganization with DOLPHIN PRODUCTIONS, INC. The undersigned hereby
represents and warrants that the undersigned has read the Agreement and
Plan of Reorganization with DOLPHIN PRODUCTIONS, INC. and understands its
terms and conditions.
Shareholders of INNOCOM TECHNOLOGY HOLDINGS, LTD.
/s/ Xxxxxxx Xxx Date: Xxxxx 00, 0000
Xxxxxxx Xxx
EXHIBIT A
Name of Number of
Shareholder Shares
Xxxxxxx Xxx 32,165,000
EXHIBIT B
INVESTMENT REPRESENTATION STATEMENT
PURCHASER: Xxxxxxx Xxx
ISSUER: DOLPHIN PRODUCTIONS, INC.
SECURITY: Common Stock, par value $.001
QUANTITY: 32,165,000 Shares (the "Securities")
In connection with the purchase of the above-listed Securities of the
Company, I, the purchaser represent to Dolphin Productions, Inc. (the
"Company") the following:
(1) Investment. I am aware of the Company's business affairs and
financial condition. I am purchasing the Securities for investment for my
own account only and not with a view to, or for resale in connection with,
any "distribution" thereof within the meaning of the Securities Act of
1933 (as Amended). These securities have not been registered under the
Securities Act by reason of a specific exemption therefrom, which
exemption depends on, among other things, the bona fide nature of the
investment intent as expressed herein. In this connection I understand
that, in view of the Securities and Exchange Commission ("SEC"), the
statutory basis for such exemption may be unavailable if my representation
was predicated solely upon a present intention to hold these Securities
for the minimum capital gains period specified under tax statutes, for a
deferred sale, for or until an increase or decrease in the market price of
the Securities or for the period of one year or any other fixed period in
the future.
(2) Restrictions on Transfer Under Securities Act. I further
acknowledge and understand that the Securities must be held indefinitely
unless they are subsequently registered under the Securities Act or unless
an exemption from such registration is available. Moreover, I understand
that the Company is under no obligation to register the Securities. In
addition, I understand that the certificate evidencing the Securities will
be imprinted with a legend which prohibits the transfer of the Securities
unless they are registered or unless the Company receives an opinion of
counsel reasonably satisfactory to the Company that such registration is
not required.
(3) Sales Under Rule 144. I am aware of the adoption of Rule 144 by
the SEC promulgated under the Securities Act, which in substance permits
limited public resale of securities acquired in a non- public offering
subject to the satisfaction of certain conditions, including: (i) the
availability of certain current public information about the Company, (ii)
the resale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a " market maker," and (iv)
the amount of securities sold during any three-month period not exceeding
specified limitations (generally 1% of the total shares outstanding).
(4) Limitations on Rule 144. I further acknowledge and understand
that the Company is not now, and at any time I wish to sell the Securities
may not be, satisfying the public information requirement of Rule 144,
and, in such case, I would be precluded from selling the Securities under
Rule 144 even if the minimum holding period had been satisfied.
(5) Sales Not Under Rule 144. I further acknowledge that, if all
the requirements of Rule 144 are not met, then Regulation A, or some other
registration exemption will be required; and that, although Rule 144 is
not exclusive, the staff of the Commission has expressed its opinion (i)
that persons proposing to sell private placement securities other than in
a registered offering or exemption from registration is available for such
offers or sales, and (ii) that such persons and the brokers who
participate in the transactions do so their own risk.
(6) Stop Transfer Instructions. I further understand that stop
transfer instructions will be in effect with respect to the transfer of
the Securities consistent with the above.
(7) Additional Representations and Warranties. In addition, I
represent and warrant:
(i) That I have had the opportunity to ask questions
of, and receive answers from, the Company (or any
person acting on its behalf) concerning the Company
and my proposed investment in the Securities;
(ii) That I have concluded that I have sufficient
information upon which to base my decision to acquire
the Securities;
(iii) That I have made my own determination of the
value of the Securities and have not relied upon any
statements, representations or warranties of the
Company regarding the value of the Securities or the
business prospects of the Company;
(iv) That I understand that in acquiring the
Securities, I am making a highly speculative
investment with the knowledge that the Company is in
the initial stages of development;
(v) That I am capable of bearing the economic risk
and burdens of the investment, the possibility of
complete loss of all of the investment, and the
possible inability to readily liquidate the investment
due to the lack of public market; and
(vi) That I understand that, in selling and
transferring the Securities, the Company had relied
upon an exemption from the registration requirements
of the Securities Act and that, in an attempt to
effect compliance with all the conditions of such
exemption, the Company is relying in good faith upon
all of my foregoing representations and warranties.
(8) I own, of record and beneficially, and have good, valid and
indefeasible title to and the right to transfer to the Company pursuant to
this Agreement, my share of Innocom Technology Holdings Limited
("INNOCOM") free and clear of any and all encumbrances and/or liens of any
kind. There are no options, rights, voting trusts, stockholder agreements
or any other contracts or understandings to which I am a party or by which
such I am bound with respect to the sale, transfer, or voting of my
INNOCOM share of common stock. On the closing date of the Agreement and
Plan of Reorganization to which this statement is attached, the Company
will acquire good, valid and marketable title to my share of INNOCOM stock
free and clear of any and all liens or other encumbrances of any kind.
(9) I am an "accredited investor" as that term is defined in Rule
501 of Regulation D as promulgated under the Securities Act of 1933, as
amended.
SIGNATURE OF PURCHASER
Date: _______________
_______________________________
Address:
