Contract
Exhibit
1.01
Regulation
S Securities Purchase Agreement(“ Purchase Agreement”), effective as of July 9,
2008 between Bio-Bridge Science, Inc., a Delaware corporation (“Seller”), the
address of which is located on the signature page hereto, and Xxxxxx Hin Xxxx
Xxxxxxx (a “Purchaser”), the address of which is located on the signature page
hereto. The Seller and the Purchaser, intending to be bound and for good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
agree as follows:
Certain
definitions:
a. |
The
“Company” means Bio-Bridge Science, Inc., a Delaware
corporation.
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b. |
“Purchaser”
means each person or entity identified in the signature
page.
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c. |
“Investment
Units” means a investment unit which Purchaser intends to purchase, and
each Investment Unit includes a single share of common stock of the
Company and a four year purchase warrant to purchase 0.5 share of
common
stock of the Company with exercise price at $0.725 (“Class BA purchase
warrant”) and a five year purchase warrant to purchase 0.5 share of the
common stock of the Company with exercise price at $1.10 (“Class BB
purchase warrant”).
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d. |
“Investment
Unit Price” means a cash purchase price of $ 0.725 per Share.
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e. |
“Shares”
means shares of common stock of the Company and “Share” means a single
share of common stock of the
Company.
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ARTICLE
I
PURCHASE,
SALE AND TERMS OF SHARES
1.1 Purchase
and Sale. The
Seller agrees to sell to the Purchaser in an offshore transaction negotiated
outside the U.S. and to be consummated and closed outside the U.S. and, in
consideration of and in express reliance upon the representations, warranties,
covenants, terms and conditions of this Agreement, the Purchaser agrees to
purchase, subject to the conditions hereinafter set forth, 2,000,000 units
of
the Investments Units of the Company (the “Investment Units”). The total
investment amount is one million and forty-five hundred thousand ($ 1,450,000)
(the “Purchase Price”). This is a binding, irrevocable commitment to purchase
the Shares in an exempt transaction subject to Regulation S.
1.2
Payment
Schedule. The
Purchasers will pay the Purchase Price as follows:
Date
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Payment
|
Upon
execution of investment agreement
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$120,000
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August
31, 2008
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$133,000
|
September
30, 2008
|
$133,000
|
October
31, 2008
|
$133,000
|
November
30, 2008
|
$133,000
|
December
31, 2008
|
$133,000
|
January31,
2009
|
$133,000
|
February
28, 2009
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$133,000
|
March
31, 2009
|
$133,000
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April
30, 2009
|
$133,000
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May
31, 2009
|
$133,000
|
Total
Payment Amount
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$
1,450,000
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1.3
Deliveries.
a)
On the First Payment Date the Company shall deliver or cause to be delivered
to
each Purchaser the following:
This
Agreement duly executed by the Company;
A
document evidencing a 2,000,000 shares of Common Stock, in the name of such
Purchaser;
One
four
year Warrant registered in the name of such Purchaser to purchase up to
1,000,000 shares of Common Stock for per share price at Exercise Price of
Warrants at the Closing Date, with the Exercise Price equal to $0.725 ;
and
D. One
five year Warrant registered in the name of such Purchaser to purchase up to
1,000,000 shares of Common Stock for per share price at Exercise Price of
Warrants at the Closing Date, with the Exercise Price equal to
$1.10.
b)
On the First Payment date the Purchaser shall deliver or cause to be
delivered to the Company the following:
A.
this Agreement duly executed by such Purchaser; and
B.
the First Payment by wire transfer to the account as specified in writing by
the
Company or by writing a check to the Company
c On
each
Monthly Payment Date, the Purchaser shall deliver or cause to be delivered
to
the Company the Monthly Payment to the account as specified in writing by the
Company or by writing a check to the Company
Representations
by the Purchaser.
The
Purchaser represents and warrants to and agrees with the Seller as
follows:
Restricted
Shares.
The
Purchaser understands and acknowledges that the Shares have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), or any
other applicable securities laws, and the Shares may not be offered, sold or
otherwise transferred except in compliance with the registration requirements
of
the Securities Act and any other applicable securities laws or pursuant to
an
exemption therefrom and in each case in compliance with the conditions for
transfer set forth in paragraph (H) below.
Access
to Information.
The
Purchaser, in making the decision to purchase the Shares, has relied upon the
representations and warranties contained in this Agreement as well as
independent investigations made by it and/or its representatives, if any. The
Purchaser and/or its representatives during the course of this transaction,
and
prior to the purchase of any Shares, has had the opportunity to ask questions
of
and receive answers from the management of the Company concerning the business
of the Company and to receive any additional information, documents, records
and
books relative to the business, assets, financial condition, results of
operations and liabilities (contingent or otherwise) of the Company. Purchaser
has carefully reviewed all filings of the Company with the U.S. Securities
and
Exchange Commission (“SEC”).
Sophistication
and Knowledge. The
Purchaser and/or its representatives has such knowledge and experience in
financial and business matters that it can represent itself and is capable
of
evaluating the merits and risks of the purchase of the Investment Units. The
Purchaser is not relying on the Company with respect to the tax and other
economic considerations of an investment in the Investment Units, and the
Purchaser has relied on the advice of, or has consulted with, only the
Purchaser's own advisor(s). The Purchaser represents that it has not been
organized for the purpose of acquiring the Shares.
Lack
of Liquidity.
The
Purchaser acknowledges that the purchase of the Shares involves a high degree
of
risk and further acknowledges that it can bear the economic risk of the purchase
of the Shares, including the total loss of its investment. The Purchaser
acknowledges and understands that the Shares may not be sold to a U.S. Person
(as hereinafter defined) or into the United States for a period of one (1)
year
from the date of purchase and that Purchaser has no present need for liquidity
in connection with its purchase of the Shares. Purchaser shall comply in all
respects with US federal and state securities laws, particularly with respect
to
any resale of the Shares in any transaction subject to United States
jurisdiction.
No
Public Solicitation.
The
Purchaser is not subscribing for the Investment Units as a result of or
subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or presented at any seminar or meeting, or any solicitation
of a subscription by a person not previously known to the Purchaser in
connection with investments in securities generally. Neither the Company nor
the
Purchaser has engaged in any ‘Directed Selling Efforts in the U.S.’ as defined
in Regulation S promulgated by the SEC pursuant to the Securities
Act.
Authority.
The
Purchaser has full right and power to enter into and perform pursuant to this
Agreement and make an investment in the Company, and this Agreement constitutes
the Purchaser’s valid and legally binding obligation, enforceable in accordance
with its terms. The Purchaser is authorized and otherwise duly qualified to
purchase and hold the Shares and to enter into this Agreement.
Brokers
or Finders.
No
person has or will have, as a result of the transactions contemplated by this
Agreement, any right, interest or valid claim against or upon the Seller for
any
commission, fee or other compensation as a finder or broker because of any
act
or omission by such Purchaser or its respective agents.
Requirements
for Transfer.
Purchaser agrees that it will not transfer the Shares, and the Company shall
not
be required to transfer the Shares prior to one year from the date such shares
were fully paid for. After the shares have been fully paid for, the Company
shall not be required to transfer the Shares unless (i) the transferee certifies
that he, she or it is not a U.S. Person, as defined in Regulation S, or the
Shares are registered on an effective registration statement with the U.S
Securities and Exchange Commission, if such transfer is requested prior to
one
year from the date the shares were fully paid for, and (ii) such transfer
complies in all respects with all applicable U.S. federal and state securities
laws. Purchaser shall provide an opinion of counsel if requested.
Compliance
with Local Laws.
Any
resale of the Shares during the ‘distribution compliance period’ as defined in
Rule 902(f) to Regulation S shall only be made in compliance with exemptions
from registration afforded by Regulation S. Further, any such sale of the Shares
in any jurisdiction outside of the United States will be made in compliance
with
the securities laws of such jurisdiction. Purchaser will not offer to sell
or
sell the Shares in any jurisdiction unless the Purchaser obtains all required
consents, if any, and has complied with all applicable laws.
Regulation
S Exemption.
The
Purchaser understands that the Shares are being offered and sold to it in
reliance on an exemption from the registration requirements of United States
federal and state securities laws under Regulation S promulgated under the
Securities Act and that the Seller is relying upon the truth and accuracy of
the
representations, warranties, agreements, acknowledgments and understandings
of
the Purchaser set forth herein in order to determine the applicability of such
exemptions and the suitability of the Purchaser to acquire the Shares. In this
regard, the Purchaser represents, warrants and agrees that:
The
Purchaser is not a U.S. Person (as defined below and as defined in Regulation
S)
and is not an affiliate (as defined in Rule 501(b) under the Securities Act)
of
the Company. A U.S. Person includes any one of the following:
(i)
any natural person resident in the United States of America;
(ii)
any partnership or corporation organized or incorporated under the laws of
the
United States of America;
(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 of
America;
(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 of America; and
(viii) any
partnership or corporation if:
(1) |
organized
or incorporated under the laws of any foreign jurisdiction;
and
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(2) |
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) under the Securities Act) who are not natural persons, estates
or
trusts.
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b. |
At
the time of the origination of contact concerning this Agreement
and the
date of the execution and delivery of this Agreement, the Purchaser
was
outside of the United States.
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c. |
The
Purchaser will not, during the period commencing on the date of issuance
of the Shares and ending on the first anniversary of such date, or
such
shorter period as may be permitted by Regulation S or other applicable
securities law (the “Restricted Period”), offer, sell, pledge or otherwise
transfer the shares in the United States, or to a U.S. Person for
the
account or for the benefit of a U.S. Person, or otherwise in a manner
that
is not in compliance with Regulation S, unless pursuant to a registration
statement that has been declared effective under the Securities Act.
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d. |
The
Purchaser will, after expiration of the Restricted Period, offer,
sell,
pledge or otherwise transfer the Shares only pursuant to registration
under the Securities Act or an available exemption therefrom and,
in
accordance with all applicable federal, state and foreign securities
laws.
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e. |
Neither
the Purchaser nor any person acting on its behalf has engaged in,
and
prior to the expiration of the Restricted Period will engage in,
any short
selling of or any hedging transaction with respect to the Shares,
including without limitation, any put, call or other option transaction,
option writing or equity swap.
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f. |
Neither
the Purchaser nor or any person acting on its behalf has engaged,
nor will
engage, in any directed selling efforts to a U.S. Person with respect
to
the Shares and the Purchaser and any person acting on its behalf
have
complied and will comply with the “offering restrictions” requirements of
Regulation S under the Securities
Act.
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g. |
The
transactions contemplated by this Agreement have not been pre-arranged
with a buyer located in the United States or with a U.S. Person,
and are
not part of a plan or scheme to evade the registration requirements
of the
Securities Act.
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h. |
Neither
the Purchaser nor any person acting on its behalf has undertaken
or
carried out any activity for the purpose of, or that could reasonably
be
expected to have the effect of, conditioning the market in the United
States, its territories or possessions, for any of the Shares. The
Purchaser agrees not to cause any advertisement of the Shares to
be
published in any newspaper or periodical or posted in any public
place and
not to issue any circular relating to the Shares, except such
advertisements that include the statements required by Regulation
S under
the Securities Act, and only offshore and not in the U.S. or its
territories, and only in compliance with any federal, state and local
applicable securities laws.
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i. |
Each
certificate representing the Shares shall be endorsed with the following
legends, in addition to any other legend required to be placed thereon
by
applicable federal or state securities
laws:
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(A) |
“THE
SHARES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS
DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“THE
SECURITIES ACT”)) AND WITHOUT REGISTRATION WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE
UPON REGULATION S PROMULGATED UNDER THE SECURITIES
ACT.”
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(B) |
“TRANSFER
OF THESE SHARES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SUCURITIES ACT,
OR
PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES
ACT.”
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j. |
The
Purchaser consents to, and the Company shall, make a notation on
its
records and give instructions to any transfer agent of the Company
in
order to implement the restrictions on transfer of the Shares set
forth in
this Article 1.3.
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller represents and warrants to the Purchaser as follows, which
representations and warranties shall be true and correct in all material
respects on the effective date hereof:
2.1 |
Authorization.
Seller has full legal right, power and capacity to enter into this
Agreement and all other agreements, documents, instruments and
certificates contemplated herein or related hereto (collectively
the
“Transaction Documents”) and perform its obligations hereunder and
thereunder. Upon execution and delivery of this Agreement by the
parties
hereto and thereto, this Agreement shall constitute the legal, valid
and
binding obligation of the Seller, enforceable against it in accordance
with their respective terms, except as enforceability may be limited
by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws
affecting the enforcement of creditor rights generally and by general
equitable principles.
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2.2 |
Title.
Upon delivery to Seller by Purchaser of the Purchase Price at the
Closing,
Seller will convey its Shares to Purchaser, and Purchaser will own
and
hold, good and marketable title to the Shares, free and clear of
any and
all liens or contractual restrictions or limitations whatsoever,
other
than as set forth herein.
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2.3 |
Authorization.
Seller has complied with all applicable material agreements, contracts,
regulations and orders in connection with the execution, delivery
and
performance of this Agreement, and the transactions contemplated
hereby
and thereby. No authorization, consent, approval, exemption or notice
is
required to be obtained by such Seller in connection with the execution,
delivery, and performance of this Agreement and the transactions
contemplated hereby.
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ARTICLE
III
MISCELLANEOUS
3.1 |
No
Waiver; Cumulative Remedies. No failure or delay on the part of any
party
to this Agreement in exercising any right, power or remedy hereunder
shall
operate as a waiver thereof; nor shall any single or partial exercise
of
any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy hereunder.
The
remedies herein provided are cumulative and not exclusive of any
remedies
provided by law.
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3.2 |
Amendments,
Waivers and Consents. Any provision in the Agreement to the contrary
notwithstanding, and except as hereinafter provided, changes in,
termination or amendments of or additions to this Agreement may be
made,
and compliance with any covenant or provision set forth herein may
be
omitted or waived, if the Seller shall obtain consent thereto in
writing
from the Purchaser. Any waiver or consent may be given subject to
satisfaction of conditions stated therein and any waiver or consent
shall
be effective only in the specific instance and for the specific purpose
for which given.
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3.3 |
Addresses
for Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including telegraphic
communication) and mailed, telegraphed or delivered to each applicable
party at the address set forth on the signature page hereto or at
such
other address as to which such party may inform the other parties
in
writing in compliance with the terms of this Article. All such notices,
requests, demands and other communications shall be considered to
be
effective when delivered.
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3.4 |
Costs,
Expenses and Taxes. All parties to bear their own
expenses.
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3.5 |
Effectiveness;
Binding Effect; Assignment. This Agreement shall be binding upon
and inure
to the benefit of the Seller, the Purchaser and their respective
successors and assigns. The Purchaser may assign all or any part
of its
rights and obligations hereunder to any person who acquires or sells
any
Shares owned by the Purchaser subject to the conditions of this
Agreement.
Seller hereby consents to any such assignment provided the sale complies
with the terms of Article 1 of this
Agreement.
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3.6 |
Prior
Agreements. The Transaction Documents executed and delivered in connection
herewith constitute the entire agreement between the parties and
supersede
any prior understandings or agreements concerning the subject matter
hereof.
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3.7 |
Severability.
The provisions of the Transaction Documents are severable and, in
the
event that any court of competent jurisdiction shall determine that
any
one or more of the provisions or part of a provision contained therein
shall, for any reason, be held to be invalid, illegal or unenforceable
in
any respect, such invalidity, illegality or unenforceability shall
not
affect any other provision or part of a provision of such Transaction
Document and the terms of the Shares shall be reformed and construed
as if
such invalid or illegal or unenforceable provision, or part of a
provision, had never been contained herein, and such provisions or
part
reformed so that it would be valid, legal and enforceable to the
maximum
extent possible.
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3.8 |
Governing
Law; Venue.
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A. |
This
Agreement shall be enforced, governed and construed in accordance
with the
laws the State of Delaware or federal securities law where applicable
without giving effect to choice of laws principles or conflict of
laws
provisions. Any dispute arising out of this agreement shall be submitted
to arbitration before a single arbitrator sitting in Chicago, Illinois,
said arbitration to be conducted in accordance with the commercial
rules
of the American Arbitration Association. Any discovery permitted
by the
arbitrator shall be conducted in accordance with the Federal Rules
of
Civil Procedure relating to the conduct of written and oral discovery.
Judgment may be entered upon the award of the arbitrator in any court
of
competent jurisdiction. The arbitrator shall render his or her findings
and award within 30 days of the completion of the hearing. The award
shall
be in writing and shall state the reasons for the award. The arbitrator
may award costs and expenses at his or her
discretion.
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B. |
Purchaser
and the Seller hereby waive, and agree not to assert against each
other,
or any successor assignee thereof, by way of motion, as a defense,
or
otherwise, in any such suit, action or proceeding, (i) any claim
that the
Purchaser is not personally subject to the jurisdiction of the above-named
courts, and (ii) to the extent permitted by applicable law, any claim
that
such suit, action or proceeding is brought in an inconvenient forum
or
that the venue of any such suit, action or proceeding is improper
or that
this Agreement may not be enforced in or by such
courts.
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3.9 |
Headings.
Article, section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute
a part
of this Agreement for any other
purpose.
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3.10 |
Survival
of Representations and Warranties. All representations and warranties
made
in the Transaction Documents, the Shares, or any other instrument
or
document delivered in connection herewith or therewith, shall survive
the
execution and delivery hereof or thereof for a period of one
year.
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3.11 |
Counterparts.
This Agreement may be executed in any number of counterparts, all
of which
taken together shall constitute one and the same instrument, and
any of
the parties hereto may execute this Agreement by signing any such
counterpart.
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3.12 |
Further
Assurances. From and after the date of this Agreement, upon the request
of
the Purchaser or the Seller, the Seller and the Purchaser shall execute
and deliver such instruments, documents and other writings as may
be
reasonably necessary or desirable to confirm and carry out and to
effectuate fully the intent and purposes of the Transaction Documents
and
the Shares.
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IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement
to
be executed as of the date first above written.
SELLER:
BIO-BRIDGE
SCIENCE, INC.
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PURCHASER:
Xxxxxx Hin Xxxx Xxxxxxx
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By:/s/ Xxxxx Xxxx | By: /S/Xxxxxx Hin Xxxx Xxxxxxx |
Print Name: Xx. Xxxxx Qiao | Print Name: Xxxxxx Hin Xxxx Xxxxxxx |
Title: CEO | Address: Flat J-N, 6/F., Valiant Industrial |
Address: 0000 Xxxx 00xx Xxxxxx, | Xxxxxx, 0-00 Xx Xxx Xxx Xxxxxx, Xx Xxx, |
Xxxxx 000, Xxx Xxxxx, XX 00000 | Shatin, Hong Kong |