AMENDED AND RESTATED AGREEMENT AND PLAN OF SHARE EXCHANGE
EXHIBIT 10.1
AMENDED AND RESTATED AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF SHARE EXCHANGE (this “Agreement”) is dated as of November 11, 2011, and is by and among daifuWaste Management Holding Limited, an exempted company incorporated with limited liability in the Cayman Islands (“Daifu”), and the undersigned ordinary shareholders of Daifu (the “Daifu Shareholders”), Rotoblock Corporation, a Nevada corporation (the “Company”) and Chien Xxxx Xxx (the “Company Shareholder”). Daifu is a party to this Agreement solely to make representations and warranties as set forth herein.
WHEREAS, Daifu, the Daifu Shareholders, the Company and the Company Shareholder entered into an Agreement and Plan of Share Exchange dated as of May 10, 2011 (the “Original Agreement”) and the parties thereto desire to enter into this Agreement to amend and restate the Original Agreement in its entirety;
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1.03. Deliveries. At the Closing, the following shall occur:
1.03(a). The Company shall issue the 73,801,525 shares of Common Stock to the Daifu Shareholders and deliver such stock certificates to the Daifu Shareholders or their legal representative.
1.03(b). The Company shall deliver or cause to be delivered to Daifu Shareholders the following: (i) a copy of resolutions duly adopted by the Board of Directors of the Company authorizing and approving the Exchange and the execution, delivery and performance of this Agreement; (ii) a certificate of good standing for the Company from the State of Nevada; (iii) board resolutions electing certain individuals to the positions with the Company as specified by the Daifu Shareholders on Schedule I annexed hereto (to the extent not already serving in such capacities); (iv) all corporate records, agreements, seals and any other information reasonably requested by Daifu’s representatives with respect to the Company; and (v) such other documents as Daifu and/or the Daifu Shareholders may reasonably request in connection with the transactions contemplated hereby.
1.03(c). Daifu and/or the Daifu Shareholders shall deliver or cause to be delivered to the Company the following: (i) the Daifu Shares together with a bought and sold note in favor of the Company and (ii) such other documents as the Company may reasonably request in connection with the transactions contemplated hereby.
II. | REPRESENTATIONS AND WARRANTIES OF DAIFU |
Daifu represents and warrants to the Company, subject to the disclosures contained in the relevant Schedules (the “Daifu Schedules”) attached hereto, as follows as of the date of this Agreement and as of the Closing:
2.01. Organization; Corporate Matters.
2.01(a). Daifu is a company duly organized, validly existing and in good standing under the laws of the Cayman Islands. Daifu has the corporate power and authority to carry on its business as presently conducted; and is licensed or qualified to do business in all jurisdictions in which the character of its properties or nature of its business requires it to be so licensed or qualified, other than such jurisdictions where the failure to be so qualified would not have a material adverse effect on its financial condition, results of operations or business.
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2.01(b). The copies of the corporate documents of Daifu, which have been made available to the Company prior to the Closing, are complete and correct copies as amended and in effect on the date hereof.
2.01(c). The books and records of Daifu, all of which have been made available to the Company prior to the Closing, are complete and correct in all material respects.
2.02(a). The authorized capital stock of Daifu consists of ordinary shares and preferred shares that are 100% owned by the Daifu Shareholders. All of the issued and outstanding shares of Daifu are duly authorized, validly issued, fully paid and nonassessable.
2.02(b). Except as disclosed in Daifu’s Articles of Association with respect to its preferred shares, there are no pre-emptive or other rights, options, warrants, subscription rights, conversion rights, stock appreciation rights, redemption rights, or other agreements, arrangements or commitments to issue or sell any shares of Daifu capital stock.
2.04. Subsidiaries and Investments. Daifu owns all of the issued and outstanding shares of capital stock of the entities contained on Section 2.04 of the Daifu Schedules. Daifu does not own any capital stock or have any interest in any corporation, partnership or other form of business organization, except as described in this Section 2.04 or in Section 2.04 of the Daifu Schedules.
2.06 Absence of Material Changes. Since July 31, 2011, there has not been any material adverse change in the condition (financial or otherwise) of the properties, assets, liabilities or business of Daifu or its subsidiaries, except changes in the ordinary course of business, which, individually and in the aggregate, have not been materially adverse.
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2.09. PRC Matters. (i) Daifu conducts substantially all of its operations and generates substantially all of its revenue through Puhua Kangjian Environment Technology (Shenzhen) Limited (the “PRC Subsidiary”). The PRC Subsidiary has been duly established, is validly existing as a company in good standing under the laws of the PRC, has the corporate power and authority to own, lease and operate its property and to conduct its business and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing is not reasonably likely to result in a Material Adverse Effect on Daifu. The PRC Subsidiary has applied for and obtained all requisite business licenses, clearances and permits required under PRC laws and regulations as necessary for the conduct of its businesses, and the PRC Subsidiary has complied in all material respects with all PRC laws and regulations in connection with foreign exchange, including without limitation, carrying out all relevant filings, registrations and applications for relevant permits with the PRC State Administration of Foreign Exchange and any other relevant authorities, and all such permits are in full force and effect, in each case except where the failure to hold, or comply with, any of them is not reasonably likely to result in a Material Adverse Effect on Daifu. The registered capital of the PRC Subsidiary has been fully paid up in accordance with the schedule of payment stipulated in its respective articles of association, approval document, certificate of approval and legal person business license (hereinafter referred to as the “Establishment Documents”) and in compliance with PRC laws and regulations, and there is no outstanding capital contribution commitment for the PRC Subsidiary. The Establishment Documents of the PRC Subsidiary have been duly approved in accordance with the laws of the PRC and are valid and enforceable. The business scope specified in the Establishment Documents of the PRC Subsidiary complies with the requirements of all relevant PRC laws and regulations. The outstanding equity interests of the PRC Subsidiary are owned of record by Daifu or a wholly owned subsidiary, except for such specific entities or individuals identified as the registered holders thereof in the Daifu Schedules.
(ii) Daifu has taken all necessary steps to comply with, and has used its commercially reasonable best efforts to ensure compliance by all of its direct or indirect shareholders and option holders who are PRC residents with, any applicable rules and regulations of the PRC State Administration of Foreign Exchange of the PRC. Daifu has used its commercially reasonable best efforts to ensure compliance by each of its shareholders, option holders, directors, officers and employees that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen with any applicable rules and regulations of the relevant PRC government agencies (including but not limited to the PRC Ministry of Commerce, the PRC National Development and Reform Commission and the PRC State Administration of Foreign Exchange) relating to overseas investment by PRC residents and citizens.
(iii) Daifu is aware of, and has been advised as to, the content of the Rules on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors jointly promulgated on August 8, 2006, as revised on June 22, 2009, by the PRC Ministry of Commerce, the PRC State Assets Supervision and Administration Commission, the PRC State Administration of Taxation, the PRC State Administration of Industry and Commerce, the China Securities Regulatory Commission (“CSRC”) and the PRC State Administration of Foreign Exchange of the PRC, in particular the relevant provisions thereof that purport to require offshore special purpose vehicles controlled directly or indirectly by PRC-incorporated companies or PRC residents and established for the purpose of obtaining a stock exchange listing outside of the PRC to obtain the approval of the CSRC prior to the listing and trading of their securities on any stock exchange located outside of the PRC.
III. REPRESENTATIONS AND WARRANTIES OF THE DAIFU SHAREHOLDERS
Each of the Daifu Shareholders, severally and not jointly, hereby represents and warrants to the Company as follows as of the date of this Agreement and as of the Closing:
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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.
IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE COMPANY SHAREHOLDER
The Company and the Company Shareholder hereby severally and jointly represent and warrant to Daifu, subject to the disclosures contained in the relevant Schedules (the “Company Schedules”) attached hereto, as follows, as of the date of this Agreement and as of the Closing:
4.01. Organization; Corporate Matters.
4.01(a). Each of the Company and its subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. Each of the Company and its subsidiaries has the corporate power and authority to carry on its business as presently conducted; and is licensed or qualified to do business in all jurisdictions in which the character of its properties or nature of its business requires it to be so licensed or qualified, other than such jurisdictions where the failure to be so qualified would not have a Material Adverse Effect on the Company. As used in this Agreement, “Material Adverse Effect” means, when used with respect to the Company or Daifu, as the case may be, any event, occurrence, fact,condition, change or effect, which, individually or in the aggregate, would reasonably be expected to be materially adverse to the business, operations, properties, assets, condition (financial or otherwise), or operating results of the Company and its subsidiaries or Daifu and its subsidiaries, as the case may be, in each case taken as a whole, or materially impair the ability of the Company or the Company Shareholder , on the one hand, or Daifu or the Daifu Shareholders, on the other hand, to perform their respective 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, or (ii) changes in the United States securities markets generally.
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4.01(b). The copies of the Articles of Incorporation and the Bylaws of the Company and its subsidiaries, which have been made available to Daifu prior to the Closing, are complete and correct copies as amended and in effect on the date hereof. Neither the Company nor any of its subsidiaries is in default under or in violation of any provision of its Articles of Incorporation or Bylaws or other organizational documents in any material respect.
4.01(c). The books and records of the Company and its subsidiaries, all of which have been made available to Daifu prior to the Closing, are complete and correct in all material respects. The records of meetings of the shareholders and Board of Directors of the Company are complete and correct in all material respects. The stock records of the Company and the shareholder and RB Warrantholder lists of the Company that the Company has previously furnished to Daifu are complete and correct in all material respects and accurately reflect the record ownership and the beneficial ownership of all the outstanding shares of the Company's capital stock and any other outstanding securities, including the RB Warrants, issued by the Company.
4.01(d). The Company is not in any default or in violation of any restriction, lien, encumbrance, indenture, contract, lease, sublease, loan agreement, note or other obligation or liability by which it is bound or to which any of its assets is subject.
4.02(a). The authorized capital stock of the Company consists of 200,000,000 shares of Common Stock and 50,000,000 shares of preferred stock, of which 5,706,975 shares of Common Stock are issued and outstanding. When issued, the Company Shares will be duly authorized, validly issued, fully paid and nonassessable.
4.02(b). All of the issued and outstanding shares of Common Stock of the Company immediately prior to the Exchange are duly authorized, validly issued, fully paid and non-assessable and free of any liens or encumbrances other than any liens or encumbrances created by or imposed upon the holders thereof, and are not subject to preemptive right or rights of first refusal created by statute, the Articles of Incorporation, as amended or any agreements to which the Company is a party or by which it is bound. As of the date of this Agreement, except for the RB Warrants, there are no outstanding or authorized options, warrants, calls, conversion rights, registration rights, commitments or agreements to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company, or obligating the Company to grant, extend, accelerate the vesting and/or repurchase rights of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no contracts, commitments, understandings, restrictions or agreements relating to voting with respect to any equity security of any class of the Company, between or among the Company and any of its shareholders and to the best knowledge of the Company and the Company Shareholder, between or among any of the Company’s shareholders. The issuance of all of the shares of the Company described in this Section 4.02 have been, or will be, as applicable, in compliance with U.S. federal and state securities laws and state corporate laws and no shareholder of the Company has any right to rescind or bring any claim against the Company for failure to comply with Securities Act or states securities laws.
4.03. Authority. The Company and the Company Shareholder have full power and authority to enter into this Agreement and all agreements, instruments and other documents to be executed and delivered in connection with the transactions contemplated by this Agreement (collectively, the “Transaction Documents”) to which the Company and the Company Shareholder are a party and to perform their respective obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the Transaction Documents by the Company and the Company Shareholder and the consummation by the Company and the Company Shareholder of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate or other action of the Company and the Company Shareholder, and no other corporate or other proceedings on the part of the Company and the Company Shareholder is necessary to authorize this Agreement or the Transaction Documents or to consummate the transactions contemplated hereby and thereby. This Agreement constitutes the valid and legally binding obligation of the Company and the Company Shareholder and is enforceable in accordance with its terms, except as such enforcement may be limited by general equitable principles, or by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally.
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4.04. Subsidiaries and Investments. Except as set forth on Section 4.04 of the Company Schedules, the Company does not own any capital stock or have any interest in any corporation, partnership or other form of business organization.
4.05. No Undisclosed Liabilities; No Liabilities at Closing. Neither the Company nor its subsidiaries have any liabilities or obligations (whether absolute, accrued, contingent or otherwise) except (a) liabilities that are reflected and reserved against on the most recent Company Financial Statements (as hereinafter defined) that have not been paid or discharged since the date thereof and (b) liabilities incurred since the date of the most recent Company Financial Statements in the ordinary course of business consistent with past practice and in accordance with this Agreement. As of the Closing Date, the Company and its subsidiaries shall have paid, compromised or otherwise satisfied all of their outstanding debts, liabilities or other obligations (whether absolute, accrued, contingent or otherwise) and shall have no further such debts, liabilities or other obligations following the Closing.
4.09. Financial Statements; SEC Filings.
4.09(a) The Company’s consolidated financial statements (the “Company Financial Statements”) contained in its periodic reports filed with the Securities and Exchange Commission (the “SEC”) have been prepared in accordance with generally accepted accounting principles applicable in the United States of America (“U.S. GAAP”) applied on a consistent basis throughout the periods indicated, except that those Company Financial Statements that are not audited do not contain all footnotes required by U.S. GAAP. The Company Financial Statements fairly present the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein, subject to normal year-end audit adjustments. Except as set forth in the Company Financial Statements, the Company has no material liabilities (contingent or otherwise). The Company is not a guarantor or indemnitor of any indebtedness of any other person, entity or organization. The Company maintains a standard system of accounting established and administered in accordance with U.S. GAAP.
4.09(b). The Company has timely made all filings with the SEC that it has been required to make under the Securities Act and the Exchange Act ( the “Public Reports”). Each of the Public Reports has complied in all material respects with the applicable provisions of the Securities Act, the Exchange Act, and the Sarbanes/Oxley Act of 2002 (the “Sarbanes/Oxley Act”) and/or regulations promulgated thereunder. None of the Public Reports, as of their respective dates, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading. There is no event, fact or circumstance that would cause any certification signed by any officer of the Company in connection with any Public Report pursuant to the Sarbanes/Oxley Act to be untrue, inaccurate or incorrect in any respect. There is no revocation order, suspension order, injunction or other proceeding or law affecting the trading of the Company’s Common Stock.
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4.11. Absence of Material Changes. Since July 31, 2011, there has not been:
(a) Any sale, lease, transfer, license or assignment of any assets, tangible or intangible, of the Company or its subsidiaries;
(b) Any damage, destruction or property loss, whether or not covered by insurance, affecting adversely the properties or business of the Company or its subsidiaries;
(c) Any declaration or setting aside or payment of any dividend or distribution with respect to the shares of capital stock of the Company or its subsidiaries or any redemption, purchase or other acquisition of any such shares;
(d) Any subjection to any lien on any of the assets, tangible or intangible, of the Company or its subsidiaries;
(e) Any incurrence of indebtedness or liability or assumption of obligations by the Company or its subsidiaries;
(f) Any waiver or release by the Company or its subsidiaries of any right of any material value;
(g) Any compensation or benefits paid to officers or directors of the Company or its subsidiaries
(h) Any change made or authorized in the Certificate of Incorporation or Bylaws or other organizational documents of the Company or its subsidiaries;
(i) Any undisclosed loan to, or other transaction with, any officer, director or stockholder of the Company or its subsidiaries giving rise to any claim or right of the Company or its subsidiaries against any such person or of such person against the Company or its subsidiaries; or
(j) Any material adverse change in the condition (financial or otherwise) of the properties, assets, liabilities or business of the Company or its subsidiaries.
4.12. Legal Compliance,
4.12(a). The Common Stock of the Company is registered under Section 12(g) of the Exchange Act. The Company has filed all reports and other material required to be filed by it with the SEC pursuant to Section 15(d) of the Exchange Act.
4.12(b). The currently outstanding shares of the Company’s Common Stock (i) were issued pursuant to the Registration Statement or valid exemptions from registration under the Securities Act pursuant to Regulation D promulgated thereunder and (ii) are duly authorized, validly issued, fully paid and nonassessable.
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4.12(c). To the best knowledge of the Company, after due investigation, no claim has been filed against the Company or its subsidiaries alleging a violation of any applicable laws and regulations of foreign, federal, state and local governments and all agencies thereof. The Company and its subsidiaries hold all of the material permits, licenses, certificates or other authorizations of foreign, federal, state or local governmental agencies required for the conduct of their business as presently conducted.
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4.18 No Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or anticipated by the Company to arise, between the Company and its subsidiaries and any accountants and/or lawyers formerly or presently engaged by the Company and its subsidiaries. The Company and its subsidiaries are current with respect to fees owed to their accountants and lawyers.
a. The Company and its subsidiaries have three employees which include all of its officers and directors, who work on a full time or as needed basis.
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b. Other than Chien Xxxx Xxx, Xxxxxxx Hon, Xxxx Xxxx and Chow Xxx Xxxxx, neither the Company nor any of its subsidiaries have any officers or directors. No director or officer of the Company or any such subsidiary 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 duties as a director or officer of the Company or such subsidiary or (b) the ability of the Company or such subsidiary to conduct its business.
c. Exhibit A sets forth a true and complete list of every employment agreement, commission agreement, employee group or individual medical, life, or disability insurance plan or policy, and each deferred compensation, equity, phantom stock, stock option, stock purchase, stock appreciation right or severance plan sponsored by the Company or any of its subsidiaries now in effect or under which the Company or such subsidiary has or might have any obligation, or any understanding between Company or such subsidiary and any employee concerning the terms of such employee’s employment (collectively, “Labor Agreements”). The Company or such subsidiary has complied in all material respects with all Labor Agreements and all applicable laws relating to employment or labor, and no present or former employee, officer, director or manager of the Company or such subsidiary has any claim against the Company or such subsidiary for any matter under any Labor Agreement, except as set forth in Exhibit A.
4.26 No Undisclosed Events or Circumstances. No event or circumstance has occurred or exists with respect to the Company and its subsidiaries or their respective businesses, properties, prospects, operations or financial condition, which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed. The Company has not provided to Daifu, or the Daifu Shareholders, any material non-public information or other information which, according to applicable law, rule or regulation, was required to have been disclosed publicly by the Company but which has not been so disclosed, other than with respect to the transactions contemplated by this Agreement.
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V. COVENANTS AND AGREEMENTS OF THE PARTIES EFFECTIVE PRIOR TO CLOSING
5.01. Conduct of Business. Subject to the provisions hereof, from the date hereof through the Closing, the Company shall, and shall cause each of its subsidiaries to, (a) conduct its business in the ordinary course and in such a manner so that the representations and warranties contained herein shall continue to be true and correct in all material respects as of the Closing as if made at and as of the Closing and (b) not enter into any material transactions or incur any material liability not required or specifically contemplated hereby, without first obtaining the written consent of Daifu. Without the prior written consent of Daifu, except as required or specifically contemplated hereby, the Company and its subsidiaries shall not undertake or fail to undertake any action if such action or failure would render any of the Company’s representations and warranties untrue in any material respect as of the Closing.
6.01(a). The Company shall have delivered or caused to be delivered the items listed in Sections 1.03(a) and 1.03(b).
6.01(b). The representations and warranties of the Company and the Company Shareholder contained herein shall be true in all material respects at the Closing with the same effect as though made at such time, except for those representations and warranties made as of a particular date which shall be true and correct as of such date. The Company and the Company Shareholder shall have performed in all material respects all of their respective obligations and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by it at or prior to the Closing.
6.01(c). As of the Closing Date, the Company shall be current in the filing of all of its Public Reports.
6.01(d). No injunction or restraining order shall be in effect, and no action or proceeding shall have been instituted and, at what would otherwise have been the Closing, remain pending before a court to restrain or prohibit the transactions contemplated by this Agreement.
6.01(e). All statutory requirements for the valid consummation by the Company of the transactions contemplated by this Agreement shall have been fulfilled. All authorizations, consents and approvals of, filings with and notices to any governmental body, court, agency, official or authority and other persons required to be obtained in order to permit consummation by the Company of the transactions contemplated by this Agreement shall have been obtained.
6.01(f). There shall not be or exist any change, effect, event, circumstance, occurrence or state of facts that has had, has or which reasonably could be expected to have a Material Adverse Effect on the Company.
6.02(a). Daifu and/or the Daifu Shareholders shall have delivered or caused to be delivered the items listed in Section 1.03(c).
6.02(b). The representations and warranties of Daifu and the Daifu Shareholders contained herein shall be true in all material respects at the Closing with the same effect as though made at such time, except for those representations and warranties made as of a particular date which shall be true and correct as of such date. Daifu and the Daifu Shareholders shall have performed in all material respects all of their respective obligations and complied in all material respects with all covenants and conditions required by this Agreement to be performed or complied with by them at or prior to the Closing.
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6.02(c). No injunction or restraining order shall be in effect, and no action or proceeding shall have been instituted and, at what would otherwise have been the Closing, remain pending before a court to restrain or prohibit the transactions contemplated by this Agreement.
6.02(d). All statutory requirements for the valid consummation by Daifu and the Daifu Shareholders of the transactions contemplated by this Agreement shall have been fulfilled. All authorizations, consents and approvals of, filings with and notices to any governmental body, court, agency, official or authority and other persons required to be obtained in order to permit consummation by Daifu and the Daifu Shareholders of the transactions contemplated by this Agreement shall have been obtained.
6.02(e). There shall not be or exist any change, effect, event, circumstance, occurrence or state of facts that has had, has or which reasonably could be expected to have a Material Adverse Effect on Daifu.
(a) by mutual consent of Daifu and the Company;
(b) by either Daifu or the Company if there has been a material breach of any representation, warranty, covenant or agreement on the part of the other set forth in this Agreement which breach has not been cured within five (5) business days following receipt by the breaching party of notice of such breach, or if any permanent injunction or other order of a court or other competent authority preventing the consummation of the Exchange shall have become final and non-appealable; or
(c) by either Daifu or the Company if the Exchange shall not have been consummated before November 30, 2011.
8.02 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, sent by overnight courier or mailed by registered or certified mail (postage prepaid and return receipt requested) to the party to whom the same is so delivered, sent or mailed at addresses set forth below:
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If to the Company:
Rotoblock Corporation
000 X Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxxxxx
Attorney at Law
000 XX Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
And a copy to the Company Shareholder at
Rotoblock Corporation
000 X Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
If to Daifu:
daifuWaste Management Holding Limited
Attn. Chow Xxx Xxxxx
17/F., Universal House,
000-000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Fax: x000 00000000
with a copy to:
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Daifu Shareholders:
x/x Xxxx Xxx Xxxxx
00/X., Xxxxxxxxx Xxxxx,
000-000 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxx, Xxxx Xxxx
Fax: x000 00000000
with a copy to Loeb & Loeb LLP at the address above.
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8.04. Parties in Interest; No Third Party Beneficiaries. Except as otherwise expressly provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective heirs, beneficiaries, personal and legal representatives, successors and assigns of the parties hereto. This Agreement shall not be deemed to confer upon any person not a party hereto any rights or remedies hereunder.
8.09. Governing Law; Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the New York without regard to its conflict of laws doctrines. Any and all actions brought under this Agreement shall be brought in the state and/or federal courts of the United States sitting in the City and County of New York, NY, U.S.A and each party hereby waives any right to object to the convenience of such venue.
8.12 Waiver. No waiver by any party of any default or breach by another party of any representation, warranty, covenant or condition contained in this Agreement shall be deemed to be a waiver of any subsequent default or breach by such party of the same or any other representation, warranty, covenant or condition. No act, delay, omission or course of dealing on the part of any party in exercising any right, power or remedy under this Agreement or at law or in equity shall operate as a waiver thereof or otherwise prejudice any of such party's rights, powers and remedies. All remedies, whether at law or in equity, shall be cumulative and the election of any one or more shall not constitute a waiver of the right to pursue other available remedies.
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8.15 Publicity. Except as otherwise required by law or the rules of the SEC, so long as this Agreement is in effect, neither Daifu nor the Company shall issue or cause the publication of any press release or other public announcement with respect to the transactions contemplated by this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld.
8.16 Indemnification; Remedies.
8.16(a) Survival. All representations, warranties, covenants, and obligations in this Agreement shall expire six (6) months following the date this Agreement is executed, except for those relating to Taxes, which shall survive until sixty (60) days after the expiration of the applicable statute of limitations period (the “Survival Period”). The right to indemnification, payment of damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of damages, or other remedy based on such representations, warranties, covenants, and obligations.
(i) any breach of any representation or warranty made by the Company or the Company Shareholder in this Agreement or any Transaction Document or in any certificate delivered by the Company pursuant to this Agreement;
(ii) any breach by the Company or the Company Shareholder of any covenant or obligation of the Company in this Agreement or any Transaction Document required to be performed by the Company or the Company Shareholder on or prior to the Closing Date or after the Closing Date; or
(iii) any and all losses, claims, damages, debts or liabilities (contingent or otherwise) against the Company or any of its subsidiaries occurring or arising out of any facts or circumstances on or prior to the Closing Date.
The amount of any and all Damages suffered by the Company Indemnified Parties shall be recovered solely by the return to the Company Indemnified Parties of a specified number of the warrants owned by the Company Shareholder (the “Returned Warrants”), the amount of which shall be determined as follows: the aggregate amount of the Damages suffered by the Company Indemnified Parties, divided by the aggregate of (x) the market value of a share of the Common Stock to be calculated using the average of the closing bid price as quoted on the Over the Counter Bulletin Board (or such other public trading market on which the Common Stock may be trading at such time) for the thirty (30) trading days immediately prior to the date that such amount of Damages is determined by a court of competent jurisdiction or pursuant to a binding settlement agreement among the parties, plus (y) the then current exercise price of the Returned Warrants.
8.16(c) Breach by the Daifu Shareholders. Nothing in this Section 8.16 shall limit the Company’s right to pursue any appropriate legal or equitable remedy against any of the Daifu Shareholders with respect to any damages from and after the execution of this Agreement, until the expiration of the Survival Period arising, directly or indirectly, from or in connection with: (a) any breach by such Daifu Shareholder of any representation or warranty made by such Daifu Shareholder in this Agreement or in any certificate delivered by such Daifu Shareholder pursuant to this Agreement or (b) any breach by such Daifu Shareholder of any covenants or obligation in this Agreement required to be performed by the Daifu Shareholder on or prior to the Closing Date or after the Closing Date. All claims of the Company pursuant to this Section 8.16(c) shall be brought by the Company Shareholder on behalf of the Company and those persons who were stockholders of the Company immediately prior to the Closing Date.
[Signature Pages Follow]
16 |
DAIFU SHAREHOLDERS: | THE COMPANY: | ||
DAIFUMD (HOLDING) INC. | ROTOBLOCK CORPORATION | ||
By: /s/ Chien Xxxx Xxx | |||
By: /s/ Choy, Hon Xxxx Xxxxxxx | Name: Xxxxx Xxxx Lie | ||
Name: Choy, Hon Xxxx Xxxxxxx | Title: CEO | ||
Title: | |||
Address: | COMPANY PRINCIPAL SHAREHOLDER | ||
Number of Company Shares to be received: 26,229,705 | By: /s/ Chien Xxxx Xxx | ||
Name: Chien Xxxx Xxx | |||
EVEREACH CAPITAL LIMITED | |||
By: (illegible signature) | |||
Name: | |||
Title: | |||
Address: | |||
Number of Company Shares to be received: 5,447,752 | |||
/s/ Yin Jie | |||
Name: YIN JIE | |||
Address: | |||
Number of Company Shares to be received: 4,961,439 | |||
/s/ Choy, Hon Xxxx Xxxxxxx | |||
Name: CHOY, HON XXXX XXXXXXX | |||
Address: | |||
Number of Company Shares to be received: 8,371,9954 | |||
/s/ Chow Xxx Xxxxx | |||
Name: CHOW XXX XXXXX | |||
Address: | |||
Number of Company Shares to be received: 2,151,114 | |||
/s/ Xxxxxxxxx Xxxxxxx Xx | |||
Name: XXXXXXXXX XXXXXXX XX | |||
Address: | |||
Number of Company Shares to be received: 555,126 | |||
American Pacific Medical Group Limited | |||
By: /s/ Choy, Hon Xxxx Xxxxxxx | |||
Name: CHOY, HON XXXX XXXXXXX | |||
Title: | |||
Address: | |||
Number of Company Shares to be received: 2,914,412 | |||
/s/ Xxxx Xxx Xxxx | |||
Name: Xxxx Xxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 5,204,307 | |||
Abundant Wise Limited | |||
By: /s/ Xxxxxxxxx Xxxxxxx Xx | |||
Name: | |||
Title: | |||
Address: | |||
Number of Company Shares to be received: 2,775,630 | |||
/s/ Xxxx Xxxxxx Xxx Xxxx | |||
Name: Xxxx Xxxxxx Xxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 5,204,307 | |||
Legitimate Gain Investments Limited | |||
By: /s/ Xxxx Xxx Xxxx | |||
Name: | |||
Title: | |||
Address: | |||
Number of Company Shares to be received: 1,202,195 | |||
s/ Xxx Xxx Wa | |||
Name: Xxx Xxx Wa | |||
Address: | |||
Number of Company Shares to be received: 2,126,827 | |||
/s/ Dongnu Liu | |||
Name: Liu Dongnu | |||
Address: 00-0 Xxx Xxxx. Xxxxxxx XX Xxxxxx L3R | |||
Number of Company Shares to be received: 1,484,962 | |||
/s/ Chong Xxxxxx Xxxxx Xx Xxxx | |||
Name: Chong Xxxxxx Xxxxx Xx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 1,063,899 | |||
/s/ Xx Xxxx | |||
Name: Xx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 943,714 | |||
/s/ Xxxxx Xxxxxx | |||
Name: Xxxxx Xxxxxx | |||
Address: | |||
Number of Company Shares to be received: 462,605 | |||
/s/ Xxxxx Xxxx | |||
Name: Xxxxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 277,563 | |||
/s/ Hans Xxxxxx Xxxxx | |||
Name: Hans Xxxxxx Xxxxx | |||
Address: | |||
Number of Company Shares to be received: 271,523 | |||
/s/ Hau Chi Hung | |||
Name: Hau Chi Hung | |||
Address: | |||
Number of Company Shares to be received: 242,868 | |||
/s/ Xxxx Xx An | |||
Name: Xxxx Xx An | |||
Address: | |||
Number of Company Shares to be received: 173,477 | |||
/s/ Jiang Xxxx Xxxx | |||
Name: Jiang Xxxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 138,782 | |||
/s/ Yang Hai | |||
Name: Yang Hai | |||
Address: | |||
Number of Company Shares to be received: 138,782 | |||
/s/ Xxx Po Xxx Xxxxx | |||
Name: Xxx Po Xxx Xxxxx | |||
Address: | |||
Number of Company Shares to be received: 173,477 | |||
/s/ Shi Xxx Xxx | |||
Name: Shi Xxx Xxx | |||
Address: | |||
Number of Company Shares to be received: 117,964 | |||
/s/ Wang Jiao Di | |||
Name: Wang Jiao Di | |||
Address: | |||
Number of Company Shares to be received: 104,086 | |||
/s/ Xxxxx Xx | |||
Name: Xxxxx Xx | |||
Address: | |||
Number of Company Shares to be received: 97,147 | |||
/s/ Ding Bao Qiang | |||
Name: Ding Bao Qiang | |||
Address: | |||
Number of Company Shares to be received: 97,147 | |||
/s/ Xxxxxx Xxxx | |||
Name: Xxxxxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 69,363 | |||
/s/ Xxxxx Xxx Qing | |||
Name: Xxxxx Xxx Qing | |||
Address: | |||
Number of Company Shares to be received: 173,477 | |||
/s/ Zhu Xxx Xxxx | |||
Name: Zhu Xxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 62,452 | |||
s/ Xxxxx Xxxx | |||
Name: Xxxxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 58,982 | |||
/s/ Xxxxx Xxxx | |||
Name: Xxxxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 56,878 | |||
/s/ Xu Shou Xiu | |||
Name: Xu Shou Xiu | |||
Address: | |||
Number of Company Shares to be received: 55,513 | |||
/s/ Xxxxxx Xxx Jiao | |||
Name: Xxxxxx Xxx Jiao | |||
Address: | |||
Number of Company Shares to be received: 83,269 | |||
/s/ Shi Lei | |||
Name: Shi Lei | |||
Address: | |||
Number of Company Shares to be received: 83,269 | |||
/s/ Gong Hong Liang | |||
Name: Gong Hong Liang | |||
Address: | |||
Number of Company Shares to be received: 104,086 | |||
/s/ Xx Xxxx | |||
Name: Xx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 34,695 | |||
/s/ Xxxx Xxx Chunm | |||
Name: Xxxx Xxx Chun | |||
Address: | |||
Number of Company Shares to be received: 34,695 | |||
/s/ Zhao Na | |||
Name: Zhao Na | |||
Address: | |||
Number of Company Shares to be received: 31,226 | |||
/s/ Xxxx Xxxx | |||
Name: Xxxx Xxxx | |||
Address: | |||
Number of Company Shares to be received: 20,815 | |||
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SCHEDULE I
Post-Closing Officers and Directors of the Company
Name | Age | Position | |||
Xxxxxxx Xxx Xxxx Xxxx | 58 | Director | |||
Chow Xxx Xxxxx | 46 | Chief Financial Officer, Director | |||
Chien Xxxx Xxx | 39 | Chief Executive Officer, Director | |||
Xxxxxx Xxxxx Yu Xxxx Xxxxx | 36 | President | |||
Xxx Xxx | 47 | Chief Operating Officer |
18 |
EXHIBIT A
Employment Agreements
Name Title
Chien Xxxx Xxx Chief Executive Officer
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