SHARE EXCHANGE AGREEMENT BY AND AMONG REMEDIATION SERVICES, INC. REED BULEY CHINA LIANDI CLEAN TECHNOLOGY ENGINEERING LTD. AND SHAREHOLDERS LISTED ON SCHEDULE II DATED: FEBRUARY 26, 2010
BY AND
AMONG
XXXX
XXXXX
CHINA
LIANDI CLEAN TECHNOLOGY ENGINEERING LTD.
AND
SHAREHOLDERS
LISTED ON SCHEDULE
II
DATED:
FEBRUARY 26, 2010
TABLE OF
CONTENTS
Page
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SECTION
I
|
DEFINITIONS
|
1
|
||
SECTION
II
|
EXCHANGE
OF SHARES AND SHARE CONSIDERATION
|
7
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||
SECTION
III
|
CLOSING
DATE
|
8
|
||
SECTION
IV
|
REPRESENTATIONS
AND WARRANTIES OF SHAREHOLDERS
|
8
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||
SECTION
V
|
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
|
11
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||
SECTION
VI
|
REPRESENTATIONS
AND WARRANTIES OF THE ACQUIROR COMPANY AND THE ACQUIROR COMPANY PRINCIPAL
SHAREHOLDER
|
17
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||
SECTION
VII
|
COVENANTS
OF THE ACQUIROR COMPANY
|
27
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||
SECTION
VIII
|
COVENANTS
OF THE PARTIES
|
27
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SECTION
IX
|
CONDITIONS
PRECEDENT OF THE ACQUIROR COMPANY
|
29
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||
SECTION
X
|
CONDITIONS
PRECEDENT OF THE COMPANY AND THE SHAREHOLDERS
|
31
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||
SECTION
XI
|
INDEMNIFICATION;
REMEDIES
|
33
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||
SECTION
XII
|
GENERAL
PROVISIONS
|
35
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SCHEDULE
I
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49
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SCHEDULE
II
|
50
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|||
SCHEDULES
|
51
|
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EXHIBIT
A
|
SHARES AND ACQUIROR
COMPANY SHARES TO BE
EXCHANGED
|
52
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EXHIBIT
B
|
DEFINITION
OF “ACCREDITED INVESTOR”
|
53
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||
EXHIBIT
C
|
DEFINITION
OF “U.S. PERSON”
|
55
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EXHIBIT
D
|
ACCREDITED
INVESTOR REPRESENTATIONS
|
57
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||
EXHIBIT
E
|
NON
U.S. PERSON REPRESENTATIONS
|
59
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||
EXHIBIT
F
|
FORM
OF LEGAL OPINION
|
|
||
EXHIBIT
G
|
FORM
OF LEGAL OPINION
|
|
i
This
Share Exchange Agreement, dated as of February 26, 2010, is made by and among
Remediation Services, Inc., a Nevada corporation (the “Acquiror Company”), Xxxx Xxxxx
(the “Acquiror Company
Principal Shareholder” or “Xxxxx”), China LianDi Clean
Technology Engineering Ltd., a company organized under the laws of the British
Virgin Islands (the “Company”), and each of the
Persons listed on Schedule II hereto
who are shareholders of the Company (collectively, the “Shareholders”, and
individually a “Shareholder”).
WHEREAS, concurrent with the
Share Exchange and as a condition to its consummation, there shall be released
from escrow and paid to the Acquiror Company Principal Shareholder the sum of
US$275,000 in consideration for the consummation of the Share Exchange which
shall be used for the repurchase of 4,690,000 shares of common stock held by the
Acquiror Company Principal Shareholder (the “Repurchase”).
SECTION
I
Unless
the context otherwise requires, the terms defined in this Section 1 will have
the meanings herein specified for all purposes of this Agreement, applicable to
both the singular and plural forms of any of the terms herein
defined.
1.1 “Accredited Investor” has the
meaning set forth in Regulation D under the Securities Act and set forth on
Exhibit
B.
1.2 “Acquired Companies” means,
collectively, the Company and the Company Subsidiaries.
1.3 “Acquiror Company Balance
Sheet” means the Acquiror Company’s balance sheet at September 30,
2009.
1.4 “Acquiror Company Board” means
the Board of Directors of the Acquiror Company.
1.5 “Acquiror Company Common Stock”
means the Acquiror Company’s common stock, par value US $0.001 per
share.
1.6 “Acquiror Company Shares” means
the Acquiror Company Common Stock being issued to the Shareholders pursuant
hereto.
1.7 “Affiliate” shall mean, with
respect to any Person, any other Person that (a) directly or indirectly, whether
through one or more intermediaries or otherwise, controls or is controlled by or
is under common control with such Person. For purposes of this
definition, “control” (including with correlative meanings “controlled by” and
“under common control with”) of a Person means the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person,
whether through ownership of voting securities, by contract or
otherwise. For the purposes of this definition, a Person shall be
deemed to control any of his or her immediate family members.
1.8 “Agreement” means this Share
Exchange Agreement, including all Schedules and Exhibits hereto, as this Share
Exchange Agreement may be from time to time amended, modified or
supplemented.
1.9 “Closing Date” has the meaning
set forth in Section 3.
1.10 “Code” means the Internal
Revenue Code of 1986, as amended.
1.11 “Commission” means the
Securities and Exchange Commission or any other federal agency then
administering the Securities Act and the Exchange Act.
1.12 “Company” means China LianDi
Clean Technology Engineering Ltd., a company organized under the laws of the
British Virgin Islands.
1.13 “Company Board” means the Board
of Directors of the Company.
1.14 “Company Indemnified Party” has
the meaning set forth in Section 9.1.
1.15 “Company Subsidiaries” means
all of the direct and indirect Subsidiaries of the Company.
1.16 “Distributor” means any
underwriter, dealer or other Person who participates, pursuant to a contractual
arrangement, in the distribution of the securities offered or sold in reliance
on Regulation S.
1.17 “Equity Security” means any
stock or similar security, including, without limitation, securities containing
equity features and securities containing profit participation features, or any
security convertible into or exchangeable for, with or without consideration,
any stock or similar security, or any security carrying any warrant, right or
option to subscribe to or purchase any shares of capital stock, or any such
warrant or right.
2
1.18 “ERISA” means the Employee
Retirement Income Security Act of 1974, as amended.
1.19 “Exchange Act” means the
Securities Exchange Act of 1934 or any similar federal statute, and the rules
and regulations of the Commission thereunder, all as the same will then be in
effect.
1.20 “Exhibits” means the several
exhibits referred to and identified in this Agreement.
1.21 “Form 8-K” means a current
report on Form 8-K under the Exchange Act.
1.22 “GAAP” means, with respect to
any Person, United States generally accepted accounting principles applied on a
consistent basis with such Person’s past practices.
1.23 “Governmental Authority” means
any federal or national, state or provincial, municipal or local government,
governmental authority, regulatory or administrative agency, governmental
commission, department, board, bureau, agency or instrumentality, political
subdivision, commission, court, tribunal, official, arbitrator or arbitral body,
in each case whether U.S. or non-U.S.
1.24 “HK Companies” means each of
(i) HuaShen Trading (International) Ltd.; (ii) Petrochemical Engineering Ltd.;
and (iii) Bright Flow Control Ltd., each a company organized under the laws of
Hong Kong.
1.25 “Indebtedness” means any
obligation, contingent or otherwise. Any obligation secured by a Lien
on, or payable out of the proceeds of, or production from, property of the
relevant party will be deemed to be Indebtedness.
1.26 “Intellectual Property” means
all industrial and intellectual property, including, without limitation, all
U.S. and non-U.S. patents, patent applications, patent rights, trademarks,
trademark applications, common law trademarks, Internet domain names, trade
names, service marks, service xxxx applications, common law service marks, and
the goodwill associated therewith, copyrights, in both published and unpublished
works, whether registered or unregistered, copyright applications, franchises,
licenses, know-how, trade secrets, technical data, designs, customer lists,
confidential and proprietary information, processes and formulae, all computer
software programs or applications, layouts, inventions, development tools and
all documentation and media constituting, describing or relating to the above,
including manuals, memoranda, and records, whether such intellectual property
has been created, applied for or obtained anywhere throughout the
world.
1.27 “Laws” means, with respect to
any Person, any U.S. or non-U.S. federal, national, state, provincial, local,
municipal, international, multinational or other law (including common law),
constitution, statute, code, ordinance, rule, regulation or treaty applicable to
such Person.
1.28 “Lien” means any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind, including,
without limitation, any conditional sale or other title retention agreement, any
lease in the nature thereof and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction and including
any lien or charge arising by Law.
3
1.29 “Material Acquiror Company
Contract” means any and all agreements, contracts, arrangements, leases,
commitments or otherwise, of the Acquiror Company, of the type and nature that
the Acquiror Company is required to file with the Commission.
1.30 “Material Adverse Effect”
means, any change, effect or circumstance which, individually or in the
aggregate, would reasonably be expected to (a) have a material adverse effect on
the business, assets, financial condition or results of operations of the
Acquiror Company or the Acquired Companies, as the case may be, in each case
taken as a whole or (b) materially impair the ability of the Acquiror
Company or the Acquired Companies, as the case may be, to perform their
obligations under this Agreement, excluding any change, effect or circumstance
resulting from (i) the announcement, pendency or consummation of the
transactions contemplated by this Agreement, (ii) changes in the United States
securities markets generally, or (iii) changes in general economic, currency
exchange rate, political or regulatory conditions in industries in which the
Acquiror Company or the Acquired Companies, as the case may be, operate or (c)
result in litigation, claims, disputes or property loss in excess of US$150,000
in the future, and that would prohibit or otherwise materially interfere with
the ability of any party to this Agreement to perform any of its obligations
under this Agreement in any material respect.
1.31 “Order” means any award,
decision, injunction, judgment, order, ruling, subpoena, or verdict entered,
issued, made, or rendered by any Governmental Authority.
1.32 “Ordinary Shares” means the
Company’s ordinary shares, par value US$1.00 per share.
1.33 “Organizational Documents”
means (a) the articles or certificate of incorporation and the by-laws or code
of regulations of a corporation; (b) the partnership agreement and any statement
of partnership of a general partnership; (c) the limited partnership agreement
and the certificate of limited partnership of a limited partnership; (d) the
articles or certificate of formation and operating agreement of a limited
liability company; (e) any other document performing a similar function to the
documents specified in clauses (a), (b), (c) and (d) adopted or filed in
connection with the creation, formation or organization of a Person; and (f) any
and all amendments to any of the foregoing.
1.34 “Permitted Liens” means (a)
Liens for Taxes not yet payable or in respect of which the validity thereof is
being contested in good faith by appropriate proceedings and for the payment of
which the relevant party has made adequate reserves; (b) Liens in respect of
pledges or deposits under workmen’s compensation laws or similar legislation,
carriers, warehousemen, mechanics, laborers and materialmen and similar Liens,
if the obligations secured by such Liens are not then delinquent or are being
contested in good faith by appropriate proceedings conducted and for the payment
of which the relevant party has made adequate reserves; (c) statutory Liens
incidental to the conduct of the business of the relevant party which were not
incurred in connection with the borrowing of money or the obtaining of advances
or credits and that do not in the aggregate materially detract from the value of
its property or materially impair the use thereof in the operation of its
business; and (d) Liens that would not have a Material Adverse
Effect.
4
1.35 “Person” means all natural
persons, corporations, business trusts, associations, companies, partnerships,
limited liability companies, joint ventures and other entities, governments,
agencies and political subdivisions.
1.36 “PRC” means the People’s
Republic of China, excluding Taiwan, Hong Kong and Macau.
1.37 “PRC Company” means Beijing
JianXin Petrochemical Engineering Co., Ltd. (北京键鑫实华科技发展有限公司), a
company organized under the laws of the PRC and a direct wholly-owned Subsidiary
of Petrochemical Engineering Limited (实华工程有限公司), a
company organized under the laws of Hong Kong.
1.38 “Proceeding” means any action,
arbitration, audit, hearing, investigation, litigation, or suit (whether civil,
criminal, administrative or investigative) commenced, brought, conducted, or
heard by or before, or otherwise involving, any Governmental
Authority.
1.39 “Regulation S” means Regulation
S under the Securities Act, as the same may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission.
1.40 “Rule 144” means Rule 144 under
the Securities Act, as the same may be amended from time to time, or any
successor statute.
1.41 “Schedule 14(f) Filing” means
an information statement filed by the Acquiror Company on Schedule 14f-1 under
the Exchange Act.
1.42 “Schedule 14C Filing” means an
information statement filed by the Acquiror Company on Schedule 14C under the
Exchange Act disclosing the approval of its Board of Directors and stockholders
to file an amendment to its Articles of Incorporation to change the Acquiror
Company name.
1.43 “Schedules” means the several
schedules referred to and identified herein, setting forth certain disclosures,
exceptions and other information, data and documents referred to at various
places throughout this Agreement.
1.44 “SEC Documents” has the meaning
set forth in Section 6.25.
1.45 “Section 4(2)” means Section
4(2) under the Securities Act, as the same may be amended from time to time, or
any successor statute.
1.46 “Securities Act” means the
Securities Act of 1933, as amended, or any similar federal statute, and the
rules and regulations of the Commission thereunder, all as the same will be in
effect at the time.
5
1.47 “Share Exchange” has the
meaning set forth in Section 2.1.
1.48 “Shares” means the issued and
outstanding Ordinary Shares.
1.49 “Subsidiary” means, with
respect to any Person, any corporation, limited liability company, joint venture
or partnership of which such Person (a) beneficially owns, either directly or
indirectly, more than 50% of (i) the total combined voting power of all classes
of voting securities of such entity, (ii) the total combined equity interests,
or (iii) the capital or profit interests, in the case of a partnership or
limited liability company; or (b) otherwise has the power to vote or to direct
the voting of sufficient securities to elect a majority of the board of
directors or similar governing body.
1.50 “Survival Period” has the
meaning set forth in Section 10.1.
1.51 “Taxes” means all foreign,
federal, state or local taxes, charges, fees, levies, imposts, duties and other
assessments, as applicable, including, but not limited to, any income,
alternative minimum or add-on, estimated, gross income, gross receipts, sales,
use, transfer, transactions, intangibles, ad valorem, value-added, franchise,
registration, title, license, capital, paid-up capital, profits, withholding,
payroll, employment, unemployment, excise, severance, stamp, occupation,
premium, real property, recording, personal property, federal highway use,
commercial rent, environmental (including, but not limited to, taxes under
Section 59A of the Code) or windfall profit tax, custom, duty or other tax,
governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest, penalties or additions to tax with respect to any of
the foregoing; and “Tax” means any of the foregoing Taxes.
1.52 “Tax Group” means any federal,
state, local or foreign consolidated, affiliated, combined, unitary or other
similar group of which the Acquiror Company is now or was formerly a
member.
1.53 “Tax Return” means any return,
declaration, report, claim for refund or credit, information return, statement
or other similar document filed with any Governmental Authority with respect to
Taxes, including any schedule or attachment thereto, and including any amendment
thereof.
1.54 “Transaction Documents” means,
collectively, all agreements, instruments and other documents to be executed and
delivered in connection with the transactions contemplated by this
Agreement.
1.55 “U.S.” means the United States
of America.
1.56 “U.S. Dollars” or “US $” means the currency of
the United States of America.
1.57 “U.S. Person” has the meaning
set forth in Regulation S under the Securities Act and set forth on Exhibit C
hereto.
6
SECTION
II
7
SECTION
III
SECTION
IV
4.1.1
Authority. Such
Shareholder has the right, power, authority and capacity to execute and deliver
this Agreement and each of the Transaction Documents to which such Shareholder
is a party, to consummate the transactions contemplated by this Agreement and
each of the Transaction Documents to which such Shareholder is a party, and to
perform such Shareholder’s obligations under this Agreement and each of the
Transaction Documents to which such Shareholder is a party. This
Agreement has been, and each of the Transaction Documents to which such
Shareholder is a party will be, duly and validly authorized and approved,
executed and delivered by such Shareholder. Assuming this Agreement
and the Transaction Documents have been duly and validly authorized, executed
and delivered by the parties thereto other than such Shareholder, this Agreement
is, and each of the Transaction Documents to which such Shareholder is a party
have been, duly authorized, executed and delivered by such Shareholder and
constitutes the legal, valid and binding obligation of such Shareholder,
enforceable against such Shareholder in accordance with their respective terms,
except as such enforcement is limited by general equitable principles, or by
bankruptcy, insolvency and other similar Laws affecting the enforcement of
creditors rights generally.
8
(a) such
Shareholder is an Accredited Investor; or
(b) such
Shareholder is not a U.S. Person.
Each
Shareholder understands that the Acquiror Company Shares are being offered and
sold to such Shareholder in reliance upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments and understandings of
such Shareholder set forth in this Agreement, in order that the Acquiror Company
may determine the applicability and availability of the exemptions from
registration of the Acquiror Company Shares on which the Acquiror Company is
relying.
9
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE REASONABLY
SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS.
10
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S PROMULGATED UNDER THE SECURITIES
ACT, AND BASED ON AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE
REASONABLY SATISFACTORY TO THE COMPANY, THAT THE PROVISIONS OF REGULATION S HAVE
BEEN SATISFIED, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (3) PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND
OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER
CONTEMPLATED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.
SECTION
V
Subject
to the disclosures contained in the relevant Schedules attached hereto, the
Company represents and warrants to the Acquiror Company as
follows:
11
5.1.1 The
Company is duly incorporated and validly existing under the laws of the British
Virgin Islands, has all requisite authority and power (corporate and other),
governmental licenses, authorizations, consents and approvals to carry on its
business as presently conducted, to own, hold and operate its properties and
assets as now owned, held and operated by it, to enter into this Agreement, to
carry out the provisions hereof except where the failure to be so organized,
existing and in good standing or to have such authority or power will not, in
the aggregate, have a Material Adverse Effect. The Company is duly
qualified, licensed or domesticated as a foreign corporation in good standing in
each jurisdiction wherein the nature of its activities or its properties owned
or leased makes such qualification, licensing or domestication necessary, except
where the failure to be so qualified, licensed or domesticated will not have a
Material Adverse Effect. Set forth on Schedule 5.1 is a
list of those jurisdictions in which the Company presently conducts its
business, owns, holds and operates its properties and assets.
5.1.2 Each
of the HK Companies is duly organized, validly existing and in good standing
under the laws of Hong Kong, and has all requisite authority and power
(corporate and other), governmental licenses, authorizations, consents and
approvals to carry on its business as presently conducted and to own, hold and
operate its properties and assets as now owned, held and operated, except where
the failure to be so organized, existing and in good standing or to have such
authority and power, governmental licenses, authorizations, consents or
approvals would not have a Material Adverse Effect.
5.1.3 The
PRC Company is duly organized, validly existing and in good standing under the
laws of the PRC, and has all requisite authority and power (corporate and
other), governmental licenses, authorizations, consents and approvals to carry
on its business as presently conducted and to own, hold and operate its
properties and assets as now owned, held and operated, except where the failure
to be so organized, existing and in good standing or to have such authority and
power, governmental licenses, authorizations, consents or approvals would not
have a Material Adverse Effect. All registered capital and other
capital contributions have been duly paid up in accordance with the relevant PRC
regulations and requirements and all necessary capital verification reports have
been duly issued and not revoked.
5.3.1 The
copies of the Memorandum and Articles of Association of the Company and the
documents which constitute all other Organizational Documents of the Company,
that have been delivered to the Acquiror Company prior to the execution of this
Agreement are true and complete and have not been amended or
repealed. The Company is not in violation or breach of any of the
provisions of its Organizational Documents.
12
5.3.2 The
copies of the Memorandum and Articles of Association of each of the HK Companies
and the documents which constitute all other Organizational Documents of each of
the HK Companies, that have been delivered to the Acquiror Company prior to the
execution of this Agreement are true and complete and have not been amended or
repealed. Each of the HK Companies is not in violation or breach of
any of the provisions of its Organizational Documents.
5.3.3 True,
correct and complete translated copies of the Organizational Documents of the
PRC Company have been delivered to the Acquiror Company prior to the execution
of this Agreement, and no action has been taken to amend or repeal such
Organizational Documents. The PRC Company is not in violation or
breach of any of the provisions of its Organizational Documents.
13
14
15
16
SECTION
VI
Subject
to the disclosures contained in the relevant Schedules attached hereto, the
Acquiror Company and the Acquiror Company Principal Shareholder, jointly and
severally, represent and warrant to each of the Shareholders and the Company as
follows:
17
18
19
20
21
22
6.15.1 Except
as set forth on Schedule 6.15.1, the
Acquiror Company has no employees, independent contractors or other Persons
providing services to them. Except as would not have a Material
Adverse Effect, the Acquiror Company is in full compliance with all Laws
regarding employment, wages, hours, benefits, equal opportunity, collective
bargaining, the payment of Social Security and other taxes, and occupational
safety and health. The Acquiror Company is not liable for the payment
of any compensation, damages, taxes, fines, penalties or other amounts, however
designated, for failure to comply with any of the foregoing Laws.
6.15.2 No
director, officer or employee of the Acquiror Company is a party to, or is
otherwise bound by, any contract (including any confidentiality, non-competition
or proprietary rights agreement) with any other Person that in any way adversely
affects or will materially affect (a) the performance of his or her duties as a
director, officer or employee of the Acquiror Company or (b) the ability of the
Acquiror Company to conduct its business. Except as set forth on
Schedule
6.15.2, each employee of the Acquiror Company is employed on an at-will
basis and the Acquiror Company does not have any contract with any of its
employees which would interfere with its ability to discharge its
employees.
23
24
25
6.26.1 The
Acquiror Company has no stock option plans providing for the grant by the
Acquiror Company of stock options to directors, officers or
employees.
6.26.2 The
Acquiror Company has no employee benefit plans or arrangements covering their
present and former employees or providing benefits to such persons in respect of
services provided the Acquiror Company.
6.26.3 Neither
the consummation of the transactions contemplated hereby alone, nor in
combination with another event, with respect to each director, officer, employee
and consultant of the Acquiror Company, will result in (a) any payment
(including, without limitation, severance, unemployment compensation or bonus
payments) becoming due from the Acquiror Company, (b) any increase in the amount
of compensation or benefits payable to any such individual or (c) any
acceleration of the vesting or timing of payment of compensation payable to any
such individual. No agreement, arrangement or other contract of the
Acquiror Company provides benefits or payments contingent upon, triggered by, or
increased as a result of a change in the ownership or effective control of the
Acquiror Company.
26
SECTION
VII
7.2 Schedule 14(f) Information
Statement. Within ten (10) days following the Closing Date,
the Acquiror Company will file and mail a Schedule 14(f) information statement
to the stockholders of record of the Acquiror Company.
SECTION
VIII
27
28
SECTION
IX
The
Acquiror Company’s obligation to acquire the Shares and to take the other
actions required to be taken by the Acquiror Company at the Closing Date is
subject to the satisfaction, at or prior to the Closing Date, of each of the
following conditions (any of which may be waived by the Acquiror Company, in
whole or in part):
29
9.6 Documents. The
Company and the Shareholders must deliver to the Acquiror Company at the
Closing:
9.6.1 share
certificates evidencing the number of Shares held by each Shareholder (as set
forth in Exhibit
A), along with executed share transfer forms transferring such Shares to
the Acquiror Company together with a certified copy of a board resolution of the
Company approving the registration of the transfer of such shares to Acquiror
Company (subject to Closing and payment of stamp duty);
9.6.2 each
of the Transaction Documents to which the Company and/or the Shareholders is a
party, duly executed;
9.6.3 such
other documents as the Acquiror Company may reasonably request for the purpose
of (A) evidencing the accuracy of any of the representations and warranties of
the Company and the Shareholders pursuant to Section 9.1, (B) evidencing the
performance of, or compliance by the Company and the Shareholders with, any
covenant or obligation required to be performed or complied with by the Company
or the Shareholders, as the case may be, (C) evidencing the satisfaction of
any condition referred to in this Section 9, or (D) otherwise facilitating the
consummation or performance of any of the transactions contemplated by this
Agreement.
9.6.4 legal
opinion of Han Kun Law Offices, PRC legal counsel to the Company, substantially
in the form attached as Exhibit
F.
30
SECTION
X
The
Shareholders’ obligation to transfer the Shares and the obligations of the
Company to take the other actions required to be taken by the Company in advance
of or at the Closing Date are subject to the satisfaction, at or prior to the
Closing Date, of each of the following conditions (any of which may be waived by
the Company and the Shareholders jointly, in whole or in part):
10.3.1 All
material consents, waivers, approvals, authorizations or orders required to be
obtained, and all filings required to be made, by the Acquiror Company for the
authorization, execution and delivery of this Agreement and the consummation by
it of the transactions contemplated by this Agreement, shall have been obtained
and made by the Acquiror Company, except where the failure to receive such
consents, waivers, approvals, authorizations or orders or to make such filings
would not have a Material Adverse Effect on the Company or the Acquiror
Company.
31
10.3.2 Without
limiting the foregoing, the Schedule 14(f) Filing (and Schedule 14C Filing)
shall have been prepared to be filed with the Commission by the Acquiror Company
after the Closing Date.
10.6.1 share
certificates evidencing each Shareholder’s pro rata share of the Acquiror
Company Shares (as set forth in Exhibit
A);
10.6.2 a
Secretary’s Certificate, dated the Closing Date certifying attached copies of
(A) the Organizational Documents of the Acquiror Company, (B) the resolutions of
the Acquiror Company Board approving this Agreement and the transactions
contemplated hereby; and (C) the incumbency of each authorized officer of the
Acquiror Company signing this Agreement and any other agreement or instrument
contemplated hereby to which the Acquiror Company is a party;
10.6.3 a
Certificate of Good Standing of the Acquiror Company that is dated within five
(5) business days of the Closing;
10.6.4 each
of the Transaction Documents to which the Acquiror Company is a party, duly
executed;
10.6.5 the
resignation of Xxxxx as an officer of the Acquiror Company on the Closing
Date;
32
10.6.7 legal
opinion of Law Offices of X. Xxxxxxxx XxXxxxxx, PC, substantially in the form
attached as Exhibit
G;
10.6.8 a
statement from the Acquiror Company’s transfer agent regarding the number of
issued and outstanding shares of common stock immediately before the Closing;
and
10.6.9 such
other documents as the Company may reasonably request for the purpose of (i)
evidencing the accuracy of any representation or warranty of the Acquiror
Company pursuant to Section 10.1, (ii) evidencing the performance by the
Acquiror Company of, or the compliance by the Acquiror Company with, any
covenant or obligation required to be performed or complied with by the Acquiror
Company, (iii) evidencing the satisfaction of any condition referred to in this
Section 10, or (iv) otherwise facilitating the consummation of any of the
transactions contemplated by this Agreement.
SECTION
XI
33
(a) any
breach of any representation or warranty made by the Acquiror Company or the
Acquiror Company Principal Shareholder in this Agreement or any Transaction
Document or in any certificate delivered by the Acquiror Company pursuant to
this Agreement;
(b) any
breach by the Acquiror Company or the Acquiror Company Principal Shareholder of
any covenant or obligation of the Acquiror Company in this Agreement or any
Transaction Document required to be performed by the Acquiror Company or the
Acquiror Company Principal Shareholder on or prior to the Closing Date or after
the Closing Date; or
(c) any
and all losses, claims, damages, or liabilities against the Acquiror Company or
the Acquiror Company Principal Shareholder, occurring on or prior to the Closing
Date.
Notwithstanding
anything to the contrary contained herein, the Acquiror Company and the Acquiror
Company Principal Shareholder’s total indemnification obligations under this
Section 11 shall be limited to and shall not under any circumstances exceed US
$275,000.
11.3.1 The
Acquiror Company Principal Shareholder shall to the fullest extent permitted
under applicable Law, indemnify and hold harmless, each present, former and
future director, officer or employee of the Acquiror Company (collectively, the
“Indemnified Parties”)
against any costs or expenses (including attorneys’ fees), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement, in
connection with any Proceeding whether by a third party, the Acquiror Company or
otherwise (x) arising out of or pertaining to the transactions contemplated by
this Agreement or (y) otherwise with respect to any acts or omissions
occurring at or prior to the Closing Date (“Damages”), to the same extent
as provided in the Acquiror Company’s Organizational Documents or any applicable
contract or agreement as in effect on the date hereof, in each case for the
Survival Period. In the event of any such Proceeding (whether arising
before or after the Closing Date), (i) the Acquiror Company Principal
Shareholder shall pay the reasonable fees and expenses of such counsel, promptly
after statements therefor are received, provided that the Indemnified Parties
shall be required to reimburse the Acquiror Company Principal Shareholder for
such payments in the circumstances and to the extent required by the Acquiror
Company’s Organizational Documents, any applicable contract or agreement or
applicable Law, and (ii) the Acquiror Company Principal Shareholder shall
cooperate in the defense of any such matter; provided, however, that the
Acquiror Company Principal Shareholder shall not be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld); and provided, further, that, in the event that any claim or claims
for indemnification are asserted or made within the Survival Period, all rights
to indemnification in respect of any such claim or claims shall continue until
the disposition of any and all such claims. The Indemnified Parties
as a group may retain only one law firm to represent them in each applicable
jurisdiction with respect to any single action unless there is, under applicable
standards of professional conduct, a conflict on any significant issue between
the positions of any two or more Indemnified Parties, in which case each
Indemnified Person with respect to whom such a conflict exists (or group of such
Indemnified Persons who among them have no such conflict) may retain one
separate law firm in each applicable jurisdiction.
34
SECTION
XII
35
12.3.1 The
Acquiror Company, the Acquiror Company Principal Shareholder, the Shareholders
and the Company will maintain in confidence, and will cause their respective
directors, officers, employees, agents, and advisors to maintain in confidence,
any written, oral, or other information obtained in confidence from another
party in connection with this Agreement or the transactions contemplated by this
Agreement, unless (a) such information is already known to such party or to
others not bound by a duty of confidentiality or such information becomes
publicly available through no fault of such party, (b) the use of such
information is necessary or appropriate in making any required filing with the
Commission, or obtaining any consent or approval required for the consummation
of the transactions contemplated by this Agreement, or (c) the furnishing or use
of such information is required by or necessary or appropriate in connection
with legal proceedings.
12.3.2 In
the event that any party is required to disclose any information of another
party pursuant to clause (b) or (c) of Section 12.3.1, the party requested or
required to make the disclosure (the “disclosing party”) shall
provide the party that provided such information (the “providing party”) with prompt
notice of any such requirement so that the providing party may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Section 12.3. If, in the absence of a protective order or other
remedy or the receipt of a waiver by the providing party, the disclosing party
is nonetheless, in the opinion of counsel, legally compelled to disclose the
information of the providing party, the disclosing party may, without liability
hereunder, disclose only that portion of the providing party’s information which
such counsel advises is legally required to be disclosed, provided that the
disclosing party exercises its reasonable efforts to preserve the
confidentiality of the providing party’s information, including, without
limitation, by cooperating with the providing party to obtain an appropriate
protective order or other relief assurance that confidential treatment will be
accorded the providing party’s information.
12.3.3 If
the transactions contemplated by this Agreement are not consummated, each party
will return or destroy all of such written information each party has regarding
the other party.
36
If
to Acquiror Company:
0000
Xxxxxx Xxxxx
Xxxxx,
Xxxxx 00000
|
with
a copy, which shall not constitute notice, to:
Leser,
Hunter, Taubman & Taubman
00
Xxxxx Xxxxxx, Xxxxx 00
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxxxxxx, Esq.
Telephone
No.: 000-000-0000, ext. 215
Facsimile
No.: 000-000-0000
|
|
If
to the Company:
China
LianDi Clean Technology Engineering Ltd.
Unit
401-405.4/F, Tower B, Wanliuxingui Xxxxxxxx, 00 Xxxxxxxxxxxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx 100089
|
with
a copy, which shall not constitute notice, to:
Loeb
& Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxxxxxx
X. Xxxxxxxx, Esq.
Telephone
No.: 000-000-0000
Facsimile
No.: 000-000-0000
|
12.5 Arbitration. Any
dispute or controversy under this Agreement shall be settled exclusively by
arbitration in the City of New York, County of New York in accordance with the
rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitration award in any court
having jurisdiction.
37
12.12 Governing
Law. This Agreement will be governed by the laws of the State
of New York without regard to conflicts of laws principles.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
38
COUNTERPART
SIGNATURE PAGE
IN
WITNESS WHEREOF, the parties have executed and delivered this Share Exchange
Agreement as of the date first written above.
Acquiror Company:
|
Acquiror Company Principal
Shareholder:
|
|||
Xxxx Xxxxx
|
||||
Signed:
|
/s/ Xxxx Xxxxx |
Signed:
|
/s/ Xxxx Xxxxx | |
Printed name: Xxxx Xxxxx
|
Printed name: Xxxx Xxxxx
|
|||
Title: President and Chief Executive Officer
|
||||
Company:
|
||||
China LianDi Clean Technology Engineering Ltd.
|
||||
Signed:
|
/s/ Xxxxxxxxx Xxx | |||
Printed name:
|
Xxxxxxxxx Xxx | |||
Title:
|
CEO |
[Signatures
Continue]
39
SCHEDULE
I
Name
|
#
shares
|
|||
SJ
ASIA PACIFIC LIMITED
|
6,275,118 | |||
HUASHEN
TRADING (INTERNATIONAL) LTD.
|
6,838,620 | |||
CHINA
LIANDI ENERGY RESOURCES ENGINEERING TECHNOLOGY LTD.
|
10,684,660 | |||
RAPID
CAPITAL HOLDINGS LTD.
|
1,367,724 | |||
DRAGON
EXCEL HOLDINGS LIMITED
|
1,367,724 | |||
TRIPOINT
CAPITAL ADVISORS, LLC
|
820,634 | |||
TOTAL:
|
27,354,480 |
49
SCHEDULE
II
SJ ASIA
PACIFIC LIMITED
HUASHEN
TRADING (INTERNATIONAL) LTD.
CHINA
LIANDI ENERGY RESOURCES ENGINEERING TECHNOLOGY LTD.
RAPID
CAPITAL HOLDINGS LTD.
DRAGON
EXCEL HOLDINGS LIMITED
TRIPOINT
CAPITAL ADVISORS, LLC
50
SCHEDULES
Schedule
4.1.3
|
Shareholder
Ownership of Shares
|
|
Schedule
5.1
|
Company
Organization and Qualification
|
|
Schedule
5.2
|
Company
Subsidiaries
|
|
Schedule
5.7.1
|
Capitalization
of the Company
|
|
Schedule
5.7.2
|
Capitalization
of the HK Companies
|
|
Schedule
5.7.3(a)
|
Capitalization
of PRC Company
|
|
Schedule
5.7.3(b)
|
Capitalization
of PRC Company
|
|
Schedule
5.11
|
Company
Brokers or Finders
|
|
Schedule
6.1
|
Acquiror
Company Organization and Qualification
|
|
Schedule
6.2
|
Acquiror
Company Subsidiaries
|
|
Schedule
6.11
|
Acquiror
Company Brokers or Finders
|
|
Schedule
6.12
|
Acquiror
Company Absence of Undisclosed Liabilities
|
|
Schedule
6.13
|
Changes
|
|
Schedule
6.15.1
|
Employees
|
|
Schedule
6.15.2
|
Acquiror
Company Employees
|
|
Schedule
6.20
|
Interested
Party Transactions
|
|
Schedule
6.22
|
Bank
Accounts
|
|
Schedule
6.25
|
Acquiror
Company SEC
Documents
|
51
EXHIBIT
A
SHARES
AND ACQUIROR COMPANY SHARES TO BE EXCHANGED
Total
Shares to be delivered by the Shareholders to Acquiror
Company:
|
50,000 | |||
Total
Acquiror Company Shares to be delivered by the Acquiror Company to the
Shareholders:
|
27,354,480 |
Name and Address of Each
Shareholder
|
Number of
Shares of
Company
Owned
|
Percentage of
Total Shares
of Company
Owned
|
Number of
Total Acquiror
Company
Shares Issuable
|
|||||||||
SJ
Asia Pacific Limited
|
11,470 | 22.94 | 6,275,118 | |||||||||
Huashen
Trading (International) Ltd.
|
12,500 | 25.00 | 6,838,620 | |||||||||
China
LianDi Energy Resources Engineering Technology Ltd.
|
19,530 | 39.06 | 10,684,660 | |||||||||
Rapid
Capital Holdings Ltd.
|
2,500 | 5.00 | 1,367,724 | |||||||||
Dragon
Excel Holdings Limited
|
2,500 | 5.00 | 1,367,724 | |||||||||
TriPoint
Capital Advisors, LLC
|
1,500 | 3.00 | 820,634 |
52
EXHIBIT
B
Definition
of “Accredited Investor”
The term
“accredited investor”
means:
(1)
|
A
bank as defined in Section 3(a)(2) of the Securities Act, or a savings and
loan association or other institution as defined in Section 3(a)(5)(A) of
the Securities Act, whether acting in its individual or fiduciary
capacity; a broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934; an insurance company as defined in
Section 2(13) of the Securities Act; an investment company registered
under the Investment Company Act of 1940 (the “Investment Company Act”)
or a business development company as defined in Section 2(a)(48) of the
Investment Company Act; a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section 301(c) or (d) of the
Small Business Investment Act of 1958; a plan established and maintained
by a state, its political subdivisions or any agency or instrumentality of
a state or its political subdivisions for the benefit of its employees, if
such plan has total assets in excess of US $5,000,000; an employee benefit
plan within the meaning of the Employee Retirement Income Security Act of
1974 (“ERISA”), if
the investment decision is made by a plan fiduciary, as defined in Section
3(21) of ERISA, which is either a bank, savings and loan association,
insurance company, or registered investment advisor, or if the employee
benefit plan has total assets in excess of US $5,000,000 or, if a
self-directed plan, with investment decisions made solely by persons that
are accredited investors.
|
(2)
|
A
private business development company as defined in Section 202(a)(22) of
the Investment Advisers Act of
1940.
|
(3)
|
An
organization described in Section 501(c)(3) of the Internal Revenue Code,
corporation, Massachusetts or similar business trust, or partnership, not
formed for the specific purpose of acquiring the securities offered, with
total assets in excess of US
$5,000,000.
|
(4)
|
A
director or executive officer of the Acquiror Company.
|
(5)
|
A
natural person whose individual net worth, or joint net worth with that
person’s spouse, at the time of his or her purchase exceeds US
$1,000,000.
|
(6)
|
A
natural person who had an individual income in excess of US $200,000 in
each of the two most recent years or joint income with that person’s
spouse in excess of US $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current
year.
|
(7)
|
A
trust, with total assets in excess of US $5,000,000, not formed for the
specific purpose of acquiring the securities offered, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii)
(i.e., a person who has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of
the prospective investment).
|
53
(8)
|
An
entity in which all of the equity owners are accredited
investors. (If this alternative is checked, the Shareholder
must identify each equity owner and provide statements signed by each
demonstrating how each is qualified as an accredited
investor.)
|
54
EXHIBIT
C
Definition
of “U.S. Person”
(1)
|
“U.S. person” (as defined
in Regulation S) means:
|
|
(i)
|
Any
natural person resident in the United
States;
|
|
(ii)
|
Any
partnership or corporation organized or incorporated under the laws of the
United States;
|
|
(iii)
|
Any
estate of which any executor or administrator is a U.S.
person;
|
|
(iv)
|
Any
trust of which any trustee is a U.S.
person;
|
|
(v)
|
Any
agency or branch of a foreign entity located in the United
States;
|
|
(vi)
|
Any
non-discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a
U.S. person;
|
|
(vii)
|
Any
discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary organized, incorporated, or (if an
individual) resident in the United States;
and
|
(viii)
|
Any
partnership or corporation if: (A) organized or incorporated
under the laws of any foreign jurisdiction; and (B) formed by a U.S.
person principally for the purpose of investing in securities not
registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule
501(a)) who are not natural persons, estates or
trusts.
|
(2)
|
Notwithstanding
paragraph (1) above, any discretionary account or similar account (other
than an estate or trust) held for the benefit or account of a non-U.S.
person by a dealer or other professional fiduciary organized,
incorporated, or (if an individual) resident in the United States shall
not be deemed a “U.S.
person.”
|
(3)
|
Notwithstanding
paragraph (1), any estate of which any professional fiduciary acting as
executor or administrator is a U.S. person shall not be deemed a U.S.
person if:
|
|
(i)
|
An
executor or administrator of the estate who is not a U.S. person has sole
or shared investment discretion with respect to the assets of the estate;
and
|
|
(ii)
|
The
estate is governed by foreign law.
|
(4)
|
Notwithstanding
paragraph (1), any trust of which any professional fiduciary acting as
trustee is a U.S. person shall not be deemed a U.S. person if a trustee
who is not a U.S. person has sole or shared investment discretion with
respect to the trust assets, and no beneficiary of the trust (and no
settlor if the trust is revocable) is a U.S.
person.
|
55
(5)
|
Notwithstanding
paragraph (1), an employee benefit plan established and administered in
accordance with the law of a country other than the United States and
customary practices and documentation of such country shall not be deemed
a U.S. person.
|
(6)
|
Notwithstanding
paragraph (1), any agency or branch of a U.S. person located outside the
United States shall not be deemed a “U.S. person”
if:
|
|
(i)
|
The
agency or branch operates for valid business reasons;
and
|
|
(ii)
|
The
agency or branch is engaged in the business of insurance or banking and is
subject to substantive insurance or banking regulation, respectively, in
the jurisdiction where located.
|
(7)
|
The
International Monetary Fund, the International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development
Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar
international organizations, their agencies, affiliates and pension plans
shall not be deemed “U.S.
persons.”
|
56
EXHIBIT
D
ACCREDITED
INVESTOR REPRESENTATIONS
Each of
the Shareholders indicating that it is an Accredited Investor, severally and not
jointly, further represents and warrants to the Acquiror Company as
follows:
1.
|
Such
person or entity qualifies as an Accredited Investor on the basis set
forth on its signature page to this
Agreement.
|
2.
|
Such
person or entity has sufficient knowledge and experience in finance,
securities, investments and other business matters to be able to protect
such Shareholder’s interests in connection with the transactions
contemplated by this Agreement.
|
3.
|
Such
person or entity has consulted, to the extent that it has deemed
necessary, with its tax, legal, accounting and financial advisors
concerning its investment in the Acquiror Company
Shares.
|
4.
|
Such
person or entity understands the various risks of an investment in the
Acquiror Company Shares and can afford to bear such risks for an
indefinite period of time, including, without limitation, the risk of
losing its entire investment in the Acquiror Company
Shares.
|
5.
|
Such
person or entity has had access to the Acquiror Company’s publicly filed
reports with the SEC.
|
6.
|
Such
person or entity has been furnished during the course of the transactions
contemplated by this Agreement with all other public information regarding
the Acquiror Company that such person or entity has requested and all such
public information is sufficient for such person or entity to evaluate the
risks of investing in the Acquiror Company
Shares.
|
7.
|
Such
person or entity has been afforded the opportunity to ask questions of and
receive answers concerning the Acquiror Company and the terms and
conditions of the issuance of the Acquiror Company
Shares.
|
8.
|
Such
person or entity is not relying on any representations and warranties
concerning the Acquiror Company made by the Acquiror Company or any
officer, employee or agent of the Acquiror Company, other than those
contained in this Agreement.
|
9.
|
Such
person or entity is acquiring the Acquiror Company Shares for such
person’s or entity’s, as the case may be, own account, for investment and
not for distribution or resale to
others.
|
10.
|
Such
person or entity will not sell or otherwise transfer the Acquiror Company
Shares, unless either (a) the transfer of such securities is
registered under the Securities Act or (b) an exemption from registration
of such securities is
available.
|
57
11.
|
Such
person or entity understands and acknowledges that the Acquiror Company is
under no obligation to register the Acquiror Company Shares for sale under
the Securities Act.
|
12.
|
Such
person or entity consents to the placement of a legend on any certificate
or other document evidencing the Acquiror Company Shares substantially in
the form set forth in
Section 4.2.5(a).
|
13.
|
Such
person or entity represents that the address furnished on its signature
page to this Agreement and in Exhibit A is
the principal residence if he is an individual or its principal business
address if it is a corporation or other
entity.
|
14.
|
Such
person or entity understands and acknowledges that the Acquiror Company
Shares have not been recommended by any federal or state securities
commission or regulatory authority, that the foregoing authorities have
not confirmed the accuracy or determined the adequacy of any information
concerning the Acquiror Company that has been supplied to such person or
entity and that any representation to the contrary is a criminal
offense.
|
15.
|
Such
person or entity acknowledges that the representations, warranties and
agreements made by such person or entity herein shall survive the
execution and delivery of this Agreement and the purchase of the Acquiror
Company Shares.
|
58
EXHIBIT
E
Each
Shareholder indicating that it is not a U.S. person, severally and not jointly,
further represents and warrants to the Acquiror Company as follows:
16.
|
At
the time of (a) the offer by the Acquiror Company and (b) the acceptance
of the offer by such person or entity, of the Acquiror Company Shares,
such person or entity was outside the United
States.
|
17.
|
No
offer to acquire the Acquiror Company Shares or otherwise to participate
in the transactions contemplated by this Agreement was made to such person
or entity or its representatives inside the United
States.
|
18.
|
Such
person or entity is not purchasing the Acquiror Company Shares for the
account or benefit of any U.S. person, or with a view towards distribution
to any U.S. person, in violation of the registration requirements of the
Securities Act.
|
19.
|
Such
person or entity will make all subsequent offers and sales of the Acquiror
Company Shares either (x) outside of the United States in compliance with
Regulation S; (y) pursuant to a registration under the Securities Act; or
(z) pursuant to an available exemption from registration under the
Securities Act. Specifically, such person or entity will not
resell the Acquiror Company Shares to any U.S. person or within the United
States prior to the expiration of a period commencing on the Closing Date
and ending on the date that is one year thereafter (the “Distribution Compliance
Period”), except pursuant to registration under the Securities Act
or an exemption from registration under the Securities
Act.
|
20.
|
Such
person or entity is acquiring the Acquiror Company Shares for such
Shareholder’s own account, for investment and not for distribution or
resale to others.
|
21.
|
Such
person or entity has no present plan or intention to sell the Acquiror
Company Shares in the United States or to a U.S. person at any
predetermined time, has made no predetermined arrangements to sell the
Acquiror Company Shares and is not acting as a Distributor of such
securities.
|
22.
|
Neither
such person or entity, its Affiliates nor any Person acting on behalf of
such person or entity, has entered into, has the intention of entering
into, or will enter into any put option, short position or other similar
instrument or position in the U.S. with respect to the Acquiror Company
Shares at any time after the Closing Date through the Distribution
Compliance Period except in compliance with the Securities
Act.
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23.
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Such
person or entity consents to the placement of a legend on any certificate
or other document evidencing the Acquiror Company Shares substantially in
the form set forth in
Section 4.2.5(b).
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24.
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Such
person or entity is not acquiring the Acquiror Company Shares in a
transaction (or an element of a series of transactions) that is part of
any plan or scheme to evade the registration provisions of the Securities
Act.
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25.
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Such
person or entity has sufficient knowledge and experience in finance,
securities, investments and other business matters to be able to protect
such person’s or entity’s interests in connection with the transactions
contemplated by this Agreement.
|
26.
|
Such
person or entity has consulted, to the extent that it has deemed
necessary, with its tax, legal, accounting and financial advisors
concerning its investment in the Acquiror Company
Shares.
|
27.
|
Such
person or entity understands the various risks of an investment in the
Acquiror Company Shares and can afford to bear such risks for an
indefinite period of time, including, without limitation, the risk of
losing its entire investment in the Acquiror Company
Shares.
|
28.
|
Such
person or entity has had access to the Acquiror Company’s publicly filed
reports with the SEC.
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29.
|
Such
person or entity has been furnished during the course of the transactions
contemplated by this Agreement with all other public information regarding
the Acquiror Company that such person or entity has requested and all such
public information is sufficient for such person or entity to evaluate the
risks of investing in the Acquiror Company
Shares.
|
30.
|
Such
person or entity has been afforded the opportunity to ask questions of and
receive answers concerning the Acquiror Company and the terms and
conditions of the issuance of the Acquiror Company
Shares.
|
31.
|
Such
person or entity is not relying on any representations and warranties
concerning the Acquiror Company made by the Acquiror Company or any
officer, employee or agent of the Acquiror Company, other than those
contained in this Agreement.
|
32.
|
Such
person or entity will not sell or otherwise transfer the Acquiror Company
Shares, unless either (A) the transfer of such securities is
registered under the Securities Act or (B) an exemption from registration
of such securities is available.
|
33.
|
Such
person or entity understands and acknowledges that the Acquiror Company is
under no obligation to register the Acquiror Company Shares for sale under
the Securities Act.
|
34.
|
Such
person or entity represents that the address furnished on its signature
page to this Agreement and in Exhibit A is
the principal residence if he is an individual or its principal business
address if it is a corporation or other
entity.
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35.
|
Such
person or entity understands and acknowledges that the Acquiror Company
Shares have not been recommended by any federal or state securities
commission or regulatory authority, that the foregoing authorities have
not confirmed the accuracy or determined the adequacy of any information
concerning the Acquiror Company that has been supplied to such person or
entity and that any representation to the contrary is a criminal
offense.
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36.
|
Such
person or entity acknowledges that the representations, warranties and
agreements made by such person or entity herein shall survive the
execution and delivery of this Agreement and the purchase of the Acquiror
Company Shares.
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60