MAKE GOOD ESCROW AGREEMENT
This Make
Good Escrow Agreement (the “Agreement”), dated as
of October 22, 2009, is entered into by and among Emerald Acquisition
Corporation, a Cayman Islands exempted company incorporated with limited
liability (the “Company”), Access America Investments, LLC, as
representative of the Investors (the “Investor
Representative”), Proud Glory Limited (the “Make Good
Shareholder”) and Xxxxxx & Xxxxxx, LLP (hereinafter referred to as
the “Escrow
Agent”). All capitalized terms used but not defined herein
shall have the meanings assigned them in the Subscription Agreement, between the
Company and each investor signatory thereto (the “Investors”) in the
Offering.
BACKGROUND
WHEREAS, The Company is
selling investment units (“Units”), each Unit
consisting of (i) Fifty Thousand (50,000) of the Company’s ordinary shares, par
value $0.001 per share (the “Ordinary Shares”) and
(ii) warrants to purchase Twenty Five Thousand (25,000) of the Company’s
Ordinary Shares, at an exercise price of $6.00 per share (the “Warrants” and
collectively with the Ordinary Shares, the “Securities”). As
an inducement to the Investors to enter into the Subscription Agreement, the
Make Good Shareholder has agreed to place the Escrow Shares (as defined
below) into escrow for the benefit of the Investors in the event the Company
fails to satisfy the Performance Thresholds (as defined
below). Pursuant to the terms of the Offering, as described in the
Company’s Private Placement Memorandum (“PPM”) dated October
1, 2009, the Company, the Make Good Shareholder and the Investor Representative
have agreed to establish an escrow account (the “Escrow Account”) on
the terms and conditions set forth in this Agreement and the Escrow Agent has
agreed to act as escrow agent pursuant to the terms and conditions of this
Agreement; AND
WHEREAS, such Offering is in
connection with the combination (the “Combination”) of Emerald and Merit Times
International Limited, a company incorporated under the laws of the British
Virgin Islands (“Merit Times”). The closing of the Combination is
conditioned upon all of the conditions of the Offering being met, and the
Offering is conditioned upon the closing of the Combination (the “Closing”).
Merit Times owns 100% of the issued and outstanding capital stock of
Shandong MeKeFuBang Food Limited (“MeKeFuBang”), a company incorporated under
the laws of the People’s Republic of China (“China” or the “PRC”). Shandong
Longkang Juice Co., Ltd. (“Longkang Juice”), a company incorporated under the
laws of the PRC is a wholly-owned subsidiary of MeKeFuBang. Pursuant to the
Combination, Merit Times will become a wholly-owned subsidiary of
Emerald. Therefore, Emerald, Merit Times, MeKeFuBang, and Longkang
Juice are collectively referred to herein as “Emerald” or the
“Company”.
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual promises of the parties and the terms and conditions
hereof, the parties hereby agree as follows:
1. Appointment of Investor
Representative. The Investors hereby appoint the Investor
Representative to act on their collective behalf with respect to all matters
within the scope of this Agreement, and the Investor Representative hereby
accepts such appointment. All decisions of the Investor
Representative with respect to the subject matter of this Agreement shall be
binding on the Investors absent fraud or willful misconduct.
2. Appointment of Escrow
Agent. The Investor Representative on behalf of the Investors,
the Make Good Shareholder and the Company hereby appoint Escrow Agent as escrow
agent to act in accordance with the terms and conditions set forth in this
Agreement, and the Escrow Agent hereby accepts such appointment and agrees to
establish the Escrow Account on the terms and subject to the conditions
hereinafter set forth.
3. Establishment of
Escrow. Upon the execution of this Agreement, the Make Good
Shareholder shall deliver to the Escrow Agent stock certificates evidencing
4,600,000 shares in the aggregate of the Company’s Ordinary Shares, which shares
shall be issued to the Make Good Shareholder upon completion of the Combination
(collectively, the “Escrow Shares”) along
with stock powers executed in blank, signature medallion guaranteed or in other
form and substance acceptable for transfer, to be held in escrow pursuant to the
terms and conditions of this Agreement. Notwithstanding the foregoing
transfer, the Make Good Shareholder shall have the right to vote the Escrow
Shares until such time as they are eligible for transfer to the Investors
pursuant to the terms of this Agreement. The Make Good Shareholder
hereby irrevocably agree that, other than in accordance with this Make Good
Escrow Agreement, the Make Good Shareholder will not offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, or announce the offering of any
of the Escrow Shares (including any securities convertible into, or exchangeable
for, or representing the rights to receive Escrow Shares). The Escrow
Agent shall notify the Investor Representative when the Escrow Shares have been
deposited with the Escrow Agent.
4. Representations of the
Make Good
Shareholder. The Make Good Shareholder (as to its Escrow
Shares) hereby represent and warrant to the Investors and the Investor
Representative as follows:
4.1 The
Escrow Shares are validly issued, fully paid and nonassessable shares of the
Company. The Make Good Shareholder is the record and beneficial
owner of the Escrow Shares and has good title to the Escrow Shares, free and
clear of all pledges, liens, claims and encumbrances, except encumbrances
created by this Agreement and the Lock-Up Agreement entered into with the Make
Good Shareholder, and the Escrow Agent shall hereafter have good record title to
such Escrow Shares. There are no restrictions on the ability of the
Make Good Shareholder to transfer the Escrow Shares to the Investors, except as
stated herein. There are no restrictions on the ability of the Make
Good Shareholder to enter into this Agreement other than transfer
restrictions under applicable federal and state securities laws. Upon
any delivery of Escrow Shares to the Investor Representative or the Investors
hereunder, the Investor Representative or Investors will acquire good and valid
title to the Escrow Shares, free and clear of any pledges, liens, claims and
encumbrances.
4.2 The
performance of this Agreement and compliance with the provisions hereof will not
violate any provision of any applicable law and will not conflict with or result
in any breach of any of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon, any of the properties or assets of the Make Good Shareholder
pursuant to the terms of the certificate of incorporation or Memorandum and
Articles of Association of the Company or any indenture, mortgage, deed of trust
or other agreement or instrument binding upon the Make Good Shareholder or
affecting the Escrow Shares. No notice to, filing with, or
authorization, registration, consent or approval of any governmental authority
or other person is necessary for the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby by the
Make Good Shareholder.
4.3 The
Make Good Shareholder has carefully considered and understand its obligations
and rights in connection with this Make Good Escrow Agreement and the
transactions pursuant to which this Make Good Escrow Agreement is a part, and in
furtherance thereof (x) have consulted with legal and other advisors with
respect thereto and (y) hereby forever waive and agree that the Make Good
Shareholder may not asset any equitable defenses in any proceeding involving the
Escrow Shares.
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5. Disbursement of Escrow
Shares.
5.1 For
purposes of this Agreement, “Net Income” means net income as defined under
United States generally accepted accounting principles (“GAAP”), consistently
applied, for the Company, except that the Company’s income is subject to tax at
an assumed 25% rate and provided further that the Company’s Net Income shall be
increased by any non-cash charges incurred as a result of the Offering (due to
non-cash amortization on warrants and loss from change in fair value of the
Warrants charged to the Company’s results of operation, if any, and if and to
the extent previously subtracted in the calculation of Net Income in accordance
with GAAP). The Company’s Net Income for the fiscal year ending December 31,
2009 (“FY09”) and fiscal
year ending December 31, 2010 (“FY10”) shall also be
increased by any cash and non-cash charges related to the share exchange
agreement dated October 22, 2009, by and among the Company, Merit Times
International Limited, a company incorporated under the laws of the British
Virgin Islands (“Merit
Times”), and each of the shareholders of Merit Times, and this Offering,
including but not limited to the following: attorney’s fees, professional fees,
consulting fees, xxxxx filing fees, auditing fees and any liquidated damages
pursuant to Section 7.1 of the Subscription Agreements.
5.2 The
Company has established the following financial performance thresholds
(collectively, the “Performance Thresholds”):
(i) $14,000,000 of Net Income with a 10% allowable variation (calculated on a post-tax
basis solely with respect to
FY09) for FY09 (the
“FY09 Threshold”), and
(ii) $18,000,000 of Net Income with a 10% allowable variation for FY10 (the
“FY10 Threshold”). The
Company will provide the Investor Representative with its audited financial
statements for FY09 and FY10, prepared in accordance with US GAAP, on or before
March 31, 2010 and March 31, 2011, respectively (the “Due
Date”).
5.3 If
the Company’s Net Income (as calculated pursuant to Section 5.1 above)
for any one of FY09 or FY10 is less than 100% of the applicable Performance
Threshold, respectively, then the Performance Threshold will be deemed not to
have been achieved and an amount of Escrow Shares equal to the
percentage of variation from the applicable Performance Threshold times the
total number of Escrow Shares shall be forfeited by the Make Good Shareholder
and delivered by the Escrow Agent to the Investors (pro rata based on the number
of Units purchased by each Investor in the Offering as shown on Exhibit
A). The Investor Representative shall provide written
instructions to the Escrow Agent, with copies to the Company and the Make Good
Shareholder, instructing the Escrow Agent to deliver to the Investors, at the
addresses set forth on Exhibit A, within ten (10) business days following
delivery of the Investor Representative’s notice pursuant to this Section 5.3,
certificates registered in the name of each Investor, subject to Section 5.6 below and
provided that the Escrow Agent has received such certificates from the Company’s
transfer agent, evidencing the Investor’s pro rata portion of the Escrow Shares,
and the Escrow Agent shall make such delivery to the Investors if no objection
is received from the Make Good Shareholder. If any Escrow Shares are distributed
to Investors resulting from the Company not attaining the F09 Threshold, the
Make Good Shareholder will place an additional amount of shares, on a pro rata
basis, into the Escrow Account so that the Escrow Shares total
4,600,000.
5.4 If
any Escrow Shares remain in the Escrow Account after the Investor Representative
has had the opportunity to evaluate whether or not the Company has attained the
FY10 Performance Threshold, then all of the Escrow Shares remaining in the
Escrow Account shall be delivered to the Make Good Shareholder, and the Investor
Representative shall provide written instructions to the Escrow Agent
instructing the Escrow Agent to deliver the Escrow Shares to the Make Good
Shareholder within ten (10) business days following delivery of the financial
statements for FY10 to the Investor Representative.
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5.5 In
the event that any Escrow Shares are to be delivered to the Investors pursuant
to this Section
5, the Make Good Shareholder shall use its best efforts to promptly
cause the Escrow Shares to be delivered to the Investors, including causing its
transfer agent (including the Escrow Agent) promptly to issue the certificates
in the names of the Investors and causing its securities counsel to provide any
written instruction required by its transfer agent or the Escrow Agent in a
timely manner so that the issuances and delivery contemplated above can be
achieved within ten (10) business days following delivery of the applicable
financial statements to the Investor Representative.
Assuming
the Make Good Shareholder provides good and valid title to the Escrow Shares to
be transferred and delivered on behalf of the Make Good Shareholder to the
Investors hereunder, free and clear of all liens, encumbrances, equities or
claims, the Escrow Agent will ensure that upon delivery of the Escrow Shares,
good and valid title to the Escrow Shares, free and clear of all liens,
encumbrances, equities or claims will pass to the
Investors. The Escrow Agent shall not take any action which
could impair Investors’ rights in the Escrow Shares. The Escrow Agent
shall not sell, transfer, assign or otherwise dispose of (by operation of law or
otherwise) or grant any option with respect to any Escrow Shares prior to the
termination of this Agreement.
5.6 Notwithstanding
anything to the contrary herein, those Investors that became holders of Ordinary
Shares pursuant to the Offering shall be entitled to their pro rata portion of
the Escrow Shares at the time of any distribution of Escrow Shares, regardless
of whether they have subsequently transferred their Ordinary Shares; provided,
however, if an Investor has entered into a written agreement evidencing such
Investor’s transfer and assignment of all its rights and obligations under this
Agreement, and has provided written notice to the Company and the Escrow Agent
of such transfer in accordance with Section 13 below (a “Notice of Transfer”),
then in the event that any Escrow Shares are to be delivered to the Investors in
accordance with this Section 5, the
Company shall direct its transfer agent to issue the certificates in the names
of the transferee(s) and the Escrow Shares shall be delivered by the Escrow
Agent to the transferee(s) as set forth in the Investor’s Notice of
Transfer.
6. Reserved.
7. Duration. This
Agreement shall terminate on the distribution of all the Escrow Shares in
accordance with Section 5
above.
8. Interpleader. Should
any controversy arise among the parties hereto with respect to this Agreement or
with respect to the right to receive the Escrow Shares, the Escrow Agent shall
have the right to consult counsel and/or to institute an appropriate
interpleader action to determine the rights of the parties. The
Escrow Agent is also hereby authorized to institute an appropriate interpleader
action upon receipt of a written letter of direction executed by the parties so
directing Escrow Agent. If the Escrow Agent is directed to institute
an appropriate interpleader action, it shall institute such action not prior to
thirty (30) days after receipt of such letter of direction and not later than
sixty (60) days after such date. Any interpleader action instituted
in accordance with this Section 8 shall be
filed in any court of competent jurisdiction in New York, New York, and the
Escrow Shares in dispute shall be deposited with the court and in such event
Escrow Agent shall be relieved of and discharged from any and all obligations
and liabilities under and pursuant to this Agreement with respect to the
Escrow Shares.
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9. Exculpation and
Indemnification of Escrow Agent.
9.1 The
Escrow Agent is not a party to, and is not bound by or charged with notice of
any agreement out of which this escrow may arise. The Escrow Agent acts under
this Agreement as a depositary only and is not responsible or liable in any
manner whatsoever for the sufficiency, correctness, genuineness or validity of
the subject matter of the escrow, or any part thereof, or for the form or
execution of any notice given by any other party hereunder, or for the identity
or authority of any person executing any such notice. The Escrow Agent will have
no duties or responsibilities other than those expressly set forth
herein. The Escrow Agent will be under no liability to anyone by
reason of any failure on the part of any party hereto (other than the Escrow
Agent) or any maker, endorser or other signatory of any document to perform such
person’s or entity’s obligations hereunder or under any such
document. Except for this Agreement and instructions to the
Escrow Agent pursuant to the terms of this Agreement, the Escrow Agent will not
be obligated to recognize any agreement between or among any or all of the
persons or entities referred to herein, notwithstanding its knowledge
thereof.
9.2 The
Escrow Agent will not be liable for any action taken or omitted by it, or any
action suffered by it to be taken or omitted, in good faith and in the exercise
of its own best judgment, and may rely conclusively on, and will be protected in
acting upon, any order, notice, demand, certificate, or opinion or advice of
counsel (including counsel chosen by the Escrow Agent), statement, instrument,
report or other paper or document (not only as to its due execution and the
validity and effectiveness of its provisions, but also as to the truth and
acceptability of any information therein contained) which is reasonably believed
by Escrow Agent to be genuine and to be signed or presented by the proper person
or persons. The duties and responsibilities of the Escrow Agent hereunder shall
be determined solely by the express provisions of this Agreement and no other or
further duties or responsibilities shall be implied, including, but not limited
to, any obligation under or imposed by any laws of the State of New York upon
fiduciaries.
9.3 The
Company and the Make Good Shareholder, jointly and severally, hereby
indemnify and hold harmless, the Escrow Agent by from and
against any expenses, including reasonable attorneys’ fees and disbursements,
damages or losses suffered by the Escrow Agent in connection with any claim or
demand, which, in any way, directly or indirectly, arises out of or relates to
this Agreement or the services of Escrow Agent hereunder; except, that if the
Escrow Agent is guilty of willful misconduct, fraud or gross negligence under
this Agreement, then the Escrow Agent will bear all losses, damages and expenses
arising as a result of such willful misconduct, fraud or gross negligence.
Promptly after the receipt by the Escrow Agent of notice of any such demand or
claim or the commencement of any action, suit or proceeding relating to such
demand or claim, the Escrow Agent will notify the other parties hereto in
writing. For the purposes hereof, the terms “expense” and “loss” will
include all amounts paid or payable to satisfy any such claim or demand, or in
settlement of any such claim, demand, action, suit or proceeding settled with
the express written consent of the parties hereto, and all costs and expenses,
including, but not limited to, reasonable attorneys’ fees and disbursements,
paid or incurred in investigating or defending against any such claim, demand,
action, suit or proceeding. The provisions of this Section 9 shall
survive the termination of this Agreement.
9.4 The
Escrow Agent has acted as legal counsel for the Company and may continue to act
as legal counsel for the Company from time to time, notwithstanding its duties
as the Escrow Agent hereunder. Investor Representative and the Investors consent
to the Escrow Agent in such capacity as legal counsel for the Company and waive
any claim that such representation represents a conflict of interest on the part
of the Escrow Agent. Investors Representative and the Investors understand that
the Escrow Agent is relying explicitly on the foregoing provision in entering
into this Escrow Agreement.
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10. Fees and Expenses.
The Company agrees to reimburse the Escrow Agent for any reasonable expenses
incurred in connection with this Agreement, including, but not limited to,
reasonable counsel fees of one counsel.
11. Resignation of Escrow
Agent. At any time, upon ten (10) days’ written notice to the
Company, the Escrow Agent may resign and be discharged from its duties as escrow
agent hereunder. As soon as practicable after its resignation, the
Escrow Agent will promptly turn over to a successor escrow agent appointed by
the Company the Escrow Shares held hereunder upon presentation of a document
appointing the new escrow agent and evidencing its acceptance
thereof. If, by the end of the 10-day period following the giving of
notice of resignation by the Escrow Agent, the Company shall have failed to
appoint a successor escrow agent, the Escrow Agent may interplead the Escrow
Shares into the registry of any court having jurisdiction.
12. Records. The
Escrow Agent shall maintain accurate records of all transactions
hereunder. Promptly after the termination of this Agreement or as may
reasonably be requested by the parties hereto from time to time before such
termination, the Escrow Agent shall provide the parties hereto, as the case may
be, with a complete copy of such records, certified by the Escrow Agent to be a
complete and accurate account of all such transactions. The
authorized representatives of each of the parties hereto shall have access to
such books and records at all reasonable times during normal business hours upon
reasonable notice to the Escrow Agent.
13. Notice. All
notices, communications and instructions required or desired to be given under
this Agreement must be in writing and shall be deemed to be duly given if sent
by registered or certified mail, return receipt requested, or overnight courier
to the following addresses:
If to
Escrow Agent:
Xxxxxx & Xxxxxx, LLP
000 Xxxxx 0 Xxxxx, 0xx
Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx,
Esq.
If to the Company or the Make Good
Shareholder:
Emerald Acquisition
Corporation
Xx. 00 Xxxxx Xxxxxxxx
Xxxx
Xxxxxxx Xxxx, Xxxxxxxx
265200
P.R. China
Attention: Zhide Jiang, Chief
Executive Officer
With a copy to:
Xxxxxx + Xxxxxx, LLP
000 Xxxxx 0 Xxxxx, Xxxxx
000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx,
Esq.
If to the
Investor Representative:
Access
America Investments, LLC
00000
Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Attention: Xxxxxxxxxxx Xxxxx,
President
or to
such other address and to the attention of such other person as any of the above
may have furnished to the other parties in writing and delivered in accordance
with the provisions set forth above.
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14. Execution in
Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Facsimile execution and delivery of this
Agreement is legal, valid and binding for all purposes.
15. Assignment and
Modification. This Agreement and the rights and obligations
hereunder of any of the parties hereto may not be assigned without the prior
written consent of the other parties hereto. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of each of the parties
hereto and their respective successors and permitted assigns. No other person
will acquire or have any rights under, or by virtue of, this
Agreement. No portion of the Escrow Shares shall be subject to
interference or control by any creditor of any party hereto, or be subject to
being taken or reached by any legal or equitable process in satisfaction of any
debt or other liability of any such party hereto prior to the disbursement
thereof to such party hereto in accordance with the provisions of this
Agreement. This Agreement may be changed or modified only in writing signed by
all of the parties hereto.
16. Applicable Law. This
Agreement shall be governed by and construed with the laws of the State of New
York applicable to contracts made and to be performed therein. Any
litigation concerning the subject matter of this Agreement shall be exclusively
prosecuted in the state or federal courts located in New York, New York, and all
parties consent to the excusive jurisdiction and venue of those
courts.
17. Headings. The
headings contained in this Agreement are for convenience of reference only and
shall not affect the construction of this Agreement.
18. Attorneys’ Fees. If any action
at law or in equity, including an action for declaratory relief, is brought to
enforce or interpret the provisions of this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys’ fees from the other party
(unless such other party is the Escrow Agent), which fees may be set by the
court in the trial of such action or may be enforced in a separate action
brought for that purpose, and which fees shall be in addition to any other
relief that may be awarded.
[Signature Page
Follows]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and
year first above written.
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XXXXXX
& JACLIN, LLP
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By:
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/s/ Xxxxxxx X.
Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title: Managing
Partner
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EMERALD
ACQUISITION CORPORATION
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By:
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/s/ Zhide Jiang
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Name:
Zhide Jiang
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Title: President
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ACCESS
AMERICA INVESTMENTS, LLC
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By:
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/s/ Xxxxxxxxxxx Xxxxx
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Name:
Xxxxxxxxxxx Xxxxx
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Title: President
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MAKE
GOOD SHAREHOLDER:
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Proud
Glory Limited
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By:
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/s/ Zhide
Jiang
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Name:
Zhide Jiang
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Title:
Managing Director
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