LIQUIDATING TRUST AGREEMENT
AGREEMENT AND DECLARATION OF TRUST dated as February 5, 2010, by and among XXXXXXXXXXXX.XXX, INC., a Florida corporation (the “Company”) and ABLE HOLDINGS (U.S.), INC., a Delaware corporation as trustee (the “Trustee”).
ARTICLE I
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(a) "Agreement" shall mean this instrument as originally executed or as it may from time to time be amended pursuant to the terms hereof.
(b) “Canadian Distribution Trust” shall mean the Able (Canada) Distribution Trust created under that certain Agreement of Trust with AAC Holdings (Canada) Ltd, as trustee, dated February 5, 2010, the Initial Beneficiaries of which are all Stockholders who are resident in Canada.
(c) “Code” shall have the meaning set forth in Section 2.1.
(d) "Distribution Trust Interest" shall mean, as to each Distribution Trust, the proportionate undivided share of the Liquidating Trust Assets allocated to such Distribution Trust determined by the ratio of the aggregate number of Units assigned to the Beneficiaries of such Distribution Trust divided by the total number of Units assigned in the aggregate to the U.S. Distribution Trust and the Canada Distribution Trust. (e) "Distribution Trusts" shall mean, the Canadian Distribution Trust and the U.S. Distribution Trust, each of which is a beneficiary of the Liquidating Trust.
(f) “Indemnification Liabilities” shall have the meaning set forth in Section 5.4(b) hereof.
(g) "Liabilities" shall mean (i) all of the Company’s unsatisfied debts, claims, commitments, suits, obligations, and other liabilities, (whether absolute, accrued, asserted or unasserted, fixed, contingent or otherwise) arising out of the Company’s ownership of the Transferred Assets and from the operation of the Company prior to the SinoCoking Closing (including, without limitation, the liabilities listed in Schedule B annexed hereto); (ii) the Indemnification Liabilities; and (iii) any costs and expenses incurred or to be incurred in connection with the administration of the Liquidating Trust and liquidation of the Trust Assets.
(h) "Person" shall mean an individual, a corporation, a partnership, an association, a joint stock company, a limited liability company, a trust, a joint venture, any unincorporated organization, or a government or political subdivision thereof.
(i) “Record Date” shall mean 5:00 PM Pacific Standard Time on February 5, 2010.
(j) “Reserve Fund” shall have the meaning set forth in Section 5.4(b).
(k) “Shares” shall mean the shares of common stock, $0.001 par value per share, of the Company.
(l) "Stockholders" shall mean the holders of record of the outstanding Shares of the Company as of the Record Date.
(m) “Stockholders List” shall have the meaning set forth in Section 3.1.
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(n) “Successor Trustee” shall have the meaning set forth in Section 10.2.
(o) “Transfer Date” shall mean February 5, 2010.
(p) “Transferred Assets” shall be the assets listed on Schedule A annexed hereto.
(q) “Treasury Regulations” shall mean the Income Tax Regulations promulgated under the Code by the U.S. Department of Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
(r) “Trust Assets” shall mean all the property held from time to time by the Trustee under this Agreement, which initially shall consist of the Transferred Assets, and in addition, shall thereafter include all dividends, distributions, rents, royalties, income, payments and recoveries of claims, proceeds and other receipts of, from, or attributable to any assets held by the Liquidating Trust, less any of the foregoing utilized by the Trustee to pay expenses of the Liquidating Trust, satisfy Liabilities or to make distributions to the Distribution Trusts pursuant to the terms and conditions hereof.
(s) "Trustee" shall mean the initial Trustee appointed under this Agreement and any Successor Trustee thereof, pursuant to and in accordance with the terms of this Agreement.
(t) “Units” shall have the meaning set forth in Section 3.1.
(u) “U.S. Distribution Trust” shall mean the Able (U.S.) Distribution Trust created under that certain Agreement of Trust with Able Holdings (U.S.), Inc., dated February 5, 2010, the initial beneficiaries of which are all Stockholders other than those who are resident in Canada.
ARTICLE II
(a) The Liquidating Trust is organized for the sole purpose and objective of liquidating the Transferred Assets and other Trust Assets in a manner calculated to conserve and protect the Trust Assets and to collect, and distribute to the Distribution Trusts, for distribution, in turn, to their respective beneficiaries, the proceeds and income derived therefrom in as prompt and orderly a fashion as possible after the payment of expenses and liabilities and the making of reasonable provision for claims and contingent liabilities. The Liquidating Trust shall have no objective to continue or engage in the conduct of a trade or business.
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(b) The Transferred Assets granted, assigned and conveyed to the Trustee shall be held in the Liquidating Trust, and the Trustee will (i) further liquidate the Trust Assets to carry out the purpose of the Trust and facilitate the distribution of the Trust Assets (ii) allocate, protect, conserve and manage the Trust Assets in accordance with the terms and conditions hereof, (iii) act in the interests of the Distribution Trusts, and (iv) distribute the Trust Assets in accordance with the terms and conditions hereof.
(c) It is intended that the granting, assignment and conveyance of the Transferred Assets by the Company to the Trustee pursuant to the terms hereof shall be treated for United States Federal and state income tax purposes and for Canadian tax purposes as the Company having made such distributions directly to the Stockholders who are the beneficiaries of the Distribution Trusts and such Transferred Assets having thereafter been contributed by the Stockholders to the Distribution Trusts and in turn, to the Liquidating Trust. It is further intended that for Federal, state and local income tax purposes the Liquidating Trust shall be treated as a “liquidating trust” under Treasury Regulations Section 301.7701-4(d) and any analogous provision of state or local law, and the beneficiaries of the Distribution Trusts shall be treated as owners, through the Distribution Trusts, of their respective proportionate share of the Trust Assets pursuant to Sections 671 through 679 of the Internal Revenue Code of 1986, as amended (the “Code”) and any analogous provision of state or local law, and shall be taxed on their respective share of the Liquidating Trust’s taxable income (including both ordinary income and capital gains) pursuant to Section 671 of the Code and any analogous provision of state or local law. The Trustee shall file all tax returns required to be filed with any governmental agency consistent with this position, including, but not limited to, any returns required of grantor trusts pursuant to Section 1.671-4(a) of the Treasury Regulations, or as may be required under applicable provisions of Canadian tax laws.
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shall execute and deliver and have executed or caused to be executed and delivered to, or upon the order of, the Trustee, any and all documents and other instruments as may be necessary or useful to convey the Transferred Assets to, and to confirm title to the Transferred Assets in the Liquidating Trust. The Company will, upon reasonable request of the Trustee, execute, acknowledge and deliver such further instruments and do such further acts as may be necessary or proper to transfer, or evidence the transfer of, all or any portion of the Transferred Assets to the Trustee intended to be conveyed hereby and to vest in the Trustee the powers, instruments or funds in trust hereunder.
ARTICLE III
(a) The Distribution Trust Interest of each Distribution Trust shall be determined by the Trustee in accordance with a certified copy of the list of the Company’s stockholders as of the Record Date (the “Stockholders List”). The Company will cause its transfer agent, Interwest Transfer Company, Inc., to deliver a certified copy of the Stockholders List to the Trustee promptly after the Record Date. For ease of administration, the Trustee shall express the
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Distribution Trust Interest of each Distribution Trust in terms of units (“Units”). Each Stockholder shall be assigned one Unit for each Share then owned by each Stockholder as of the Record Date and each Distribution Trust will be allocated the aggregate number of Units assigned to those Stockholders who become the initial beneficiaries of the Canadian Distribution Trust or the U.S. Distribution Trust, as the case may be. Each Distribution Trust shall have a proportionate interest in the Trust Assets equal to the aggregate pro rata interests of the respective Stockholders who are the initial beneficiaries of such Distribution Trust.
(b) The rights of the Distribution Trusts in, to and under the Trust Assets and the Liquidating Trust shall not be represented by any form of certificate or other instrument, and no Distribution Trust or any beneficiary of a Distribution Trust shall be entitled to any a certificate. The Trustee shall maintain or cause to be maintained a record of the name and address of each Distribution Trust and of each beneficiary of each such Distribution Trust, the aggregate number of Units comprising the Distribution Trust Interest of each such Distribution Trust, and the number of Units assigned to each beneficiary of each such Distribution Trust.
(c) If any conflicting claims or demands are made or asserted with respect to the ownership of any Units, or if there is any disagreement between the transferees, assignees, heirs, representatives or legatees succeeding to all or part of a Distribution Trust Interest or the interest of any beneficiary of such Distribution Trust resulting in adverse claims or demands being made in connection with such Units, then, in any of such events, the Trustee shall be entitled, at his sole election, to refuse to comply with any such conflicting claims or demands. In so refusing, the Trustee may elect to make no payment or distribution with respect to such Units, or to make such payment to a court of competent jurisdiction or an escrow agent, and in so doing, the Trustee shall not be or become liable to any of such parties for his failure or refusal to comply with any such conflicting claims or demands or to take any other action with respect thereto, nor shall the Trustee be liable for interest on any funds with it may so withhold. Notwithstanding anything to the contrary set forth in this Section 3.1(c), the Trustee shall be entitled to refrain and refuse to act until either (i) the rights of the adverse claimants have been adjudicated by a final judgment of a court of competent jurisdiction, (ii) all differences have been adjusted by valid written agreement between all of such parties, and the Trustee shall have been furnished with an executed counterpart of such agreement, or (iii) there is furnished to the Trustee a surety bond or other security satisfactory to the Trustee, as it shall deem appropriate, to fully indemnify it as between all conflicting claims or demands.
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Agreement. A Distribution Trust shall have no title to, possession of, management of, or control of, the Trust Assets except as herein expressly provided and no widower, widow, heir, or devisee or any Person who may be a beneficiary of the Distribution Trust shall have any right of dower, homestead, or inheritance, or of partition, or of any other right, statutory or otherwise, in any property whatever forming a part of the Trust Assets, but the whole title to all the Trust Assets shall be vested in the Trustee, and the sole right and benefit of the beneficiaries of the Distribution Trusts in the Trust Assets shall be solely through their respective Distribution Trusts, whose rights and benefits shall be governed exclusively by this Agreement. Notwithstanding anything hereinabove to the contrary, however, the beneficiaries of the Distribution Trusts will be treated as the grantors and, through their interest in the Distribution Trusts, deemed owners of the Liquidating Trust for Federal income tax and Canadian tax purposes, and they will be treated for Federal income tax and Canadian tax purposes as owning undivided interests in the Trust Assets.
(a) A Distribution Trust Interest may not be transferred by a Distribution Trust, nor may the trustee of a Distribution Trust sell, assign, transfer, encumber, or in any other manner hypothecate or dispose of the Distribution Trust Interest in the Liquidating Trust. No beneficiary of a Distribution Trust shall sell, assign, transfer, encumber, or in any other manner hypothecate or dispose of his interest in the Distribution Trust; provided, however, that the interest of a such beneficiary shall be assignable or transferable by will, intestate succession or operation of law and the executor or administrator of the estate of the beneficiary may mortgage, pledge, grant a security interest in, hypothecate or otherwise encumber, the beneficiary’s interest held by the estate of the beneficiary if necessary in order to borrow money to pay estate, succession or inheritance taxes or the expenses of administering the estate of the beneficiary, upon written notice to, and written consent of, the trustee of the Distribution Trust in which the beneficiary has an interest , which consent may not be unreasonably withheld.
(b) Except as may be otherwise required by law, a Distribution Trust Interest, and the interest of any beneficiary in a Distribution Trust shall not be subject to attachment, execution, sequestration or any order of a court, nor shall they be subject to the contracts, debts, obligations, engagements or liabilities of the Distribution Trust or of any beneficiary thereof, shall be free and clear of all assignments, attachments, anticipations, levies, executions, decrees and sequestrations, and Trust Assets shall become the property of the Distribution Trust or of a beneficiary thereof only when distributed to and actually received by same
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ARTICLE IV
ARTICLE V
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(a) The Trustee shall pay from the Trust Assets all claims, expenses, charges, liabilities, and obligations of the Liquidating Trust and of the Trust Assets, including all Liabilities, and other obligations that the Trustee specifically assumes and agrees to cause the Liquidating Trust to pay pursuant to this Agreement, and such transferee liabilities that the Trustee may be obligated to pay as transferee of the Trust Assets including without limitation, interest, penalties, taxes (including, without limitation, any U.S. Federal, state and local income or other taxes, and taxes arising under Canadian tax laws), assessments, and public charges of every kind and nature and the costs, charges, and expenses connected with or arising out of the execution or administration of the Liquidating Trust (including, without limitation, reimbursement to the Trustee of fees, taxes and other expenses incurred to maintain the existence and for the operation of the Trustee), and such other payments and disbursements as are provided in this Agreement or which may be determined by the Trustee to be a proper charge against the Trust Assets. The Trustee may, in its discretion, make reasonable provision, by reserve or otherwise out of the Trust Assets, for such amount as the Trustee in good faith may reasonably determine to be necessary or desirable to meet current or future claims and liabilities of the Liquidating Trust, whether fixed or contingent.
(b) Notwithstanding anything in this Section 5.4 to the contrary and in compliance with the covenants set forth in Section 6.15 of the Share Exchange Agreement, the Trustee, as soon as reasonably practicable after the Transfer Date, shall establish a reserve fund of US$1,000,000 (the “Reserve Fund”) for use in discharging (i) any indemnification claims asserted on behalf of the Top Favour Shareholders against the Liquidating Trust within twelve (12) months of the Share Exchange Closing Date pursuant to Section 5.1(a) of the Share Exchange Agreement, or (ii) any indemnification claims asserted by Xxxxx Xxxxx against the Liquidating Trust within such same period to the extent Xxxxx has provided indemnification to the Top Favor Shareholders pursuant to Section 5.1(b) of the Share Exchange Agreement (collectively, the “Indemnification Liabilities”). The Reserve Fund shall be in cash or cash equivalents in the form of instruments or deposits in bank accounts in the name of the Liquidating Trust as provided in Section 6.1 hereof, or other assets acceptable to Top Favour, and no payments or withdrawals from the Reserve Fund shall be made except to satisfy Indemnification Liabilities then due and payable or to transfer the interest earned or other sums realized on the Reserve Fund to other accounts or instruments of the Liquidating Trust. Any indemnification claims made upon the Liquidating Trust for payment of Indemnification Liabilities under Sections 5.1(a) or 5.1(b) of the Share Exchange Agreement shall follow the procedures set forth for the assertion of indemnification claims in Sections 5.1(a) and 5.3 of the Share Exchange Agreement and shall be subject to the limitations in Section 5.4 of the Share Exchange Agreement.
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actions taken by the Trustee during that period. The financial statements contained in such annual report shall be prepared in accordance with generally accepted accounting principles, but need not be audited by an independent public accountant. In addition, after receipt of a request in good faith from a Distribution Trust or any beneficiary thereof, or in its discretion without such request, the Trustee may furnish to the Distribution Trust or any Person who has been a beneficiary of such Distribution Trust at any time during the fiscal year preceding the then current fiscal year a statement containing such further information as is reasonably available to the Trustee which may be helpful to such Person for income tax purposes. The Trustee shall file returns as a grantor trust pursuant to Treasury Regulations Section 1.671-4(a) and such make such filings of returns and reports as may be required or prudential under applicable provisions of Canadian tax law.
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ARTICLE VI
(a) to collect, liquidate or otherwise convert into cash, or such other property as it deems appropriate, all property, assets and rights in the Trust Assets, and to pay, discharge, and satisfy all other claims, expenses, charges, obligations and other Liabilities existing with respect to the Trust Assets, the Liquidating Trust or the Trustee;
(b) to elect, appoint, engage, retain or employ any Persons as agents, representatives, employees, or independent contractors (including, without limitation, real estate advisors, investment brokers, and any former officers, employees, agents and property managers
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of the Company) in one or more capacities, and to pay reasonable compensation from the Trust Assets for services in as many capacities as such Person may be so elected, appointed, engaged, retained or employed (provided that, except as otherwise provided on Schedule C, any such agreements or arrangements with a Person or entity affiliated with the Trustee shall be on terms no less favorable to the Liquidating Trust than those available to the Liquidating Trust in similar agreements or arrangements with unaffiliated third parties, and such agreements or arrangements shall be terminable, without penalty, on 60 days prior written notice by the Liquidating Trust), to prescribe the titles, powers and duties, terms or service and other terms and conditions of the election, appointment, engagement, retention or employment of such Persons and, except as prohibited by law, to delegate any of the powers and duties of the Trustee to agents, representatives, employers, independent contractors or other Persons;
(c) to retain and set aside such funds out of the Trust Assets as the Trustee shall, in its sole discretion, deem necessary or expedient to pay, or provide for the payment of (i) unpaid claims, expenses, charges, obligations, and costs of administering the Trust Assets and other Liabilities of the Liquidating Trust;
(d) to do and perform any and all acts necessary or appropriate for the conservation and protection of the Trust Assets, including acts or things necessary or appropriate to maintain the Trust Assets held by the Trustee pending sale or disposition thereof or distribution thereof to the Distribution Trusts and their respective beneficiaries;
(e) to institute or defend actions or judgments for declaratory relief or other actions or judgments and to take such other action, in the name of the Liquidating Trust or as otherwise required, as the Trustee may, in its sole discretion, deem necessary or desirable to enforce any instruments, contracts, agreements, causes of action, or rights relating to or forming a part of the Trust Assets;
(f) to determine conclusively from time to time the value of and to revalue the securities and other property of the Liquidating Trust in accordance with independent appraisals or other information as the Trustee, in its sole discretion, deem necessary and appropriate;
(g) to cancel, terminate, or amend any instruments, contracts, agreements, obligations, or causes of action relating to or forming a part of the Trust Assets, and to execute new instruments, contracts, agreements, obligations or causes of action notwithstanding that the terms of any such instruments, contracts, agreements, obligations, or causes of action may extend beyond the terms of the Liquidating Trust;
(h) in the event any of the property which is or may become a part of the Trust Assets is situated in any state or other jurisdiction in which the Trustee is not qualified to act as the Trustee, to nominate and appoint an individual or corporate trustee qualified to act in such state or other jurisdiction in connection with property situated in that state or other jurisdiction as a trustee of such property and require from such trustee such security as may be designated by the Trustee. The trustee so appointed shall have all the rights, powers, privileges and duties and shall be subject to the conditions and limitations of the Liquidating Trust, except as limited by the Trustee and except where the same may be modified by the laws of such state or other jurisdiction (in which case, the laws of the state or other jurisdiction in which such trustee is
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acting shall prevail to the extent necessary). Such trustee shall be answerable to the Trustee herein appointed for all monies, assets and other property which may be received by it in connection with the administration of such property. The Trustee hereunder may remove such trustee, with or without cause, and appoint a successor trustee at any time by the execution by the Trustee of a written instrument declaring such trustee was removed from office, and specifying the effective date of removal;
(i) to cause any investments of any part of the Trust Assets to be registered and held in the Trustee’s name or in the names of a nominee or nominees without increase or decrease of liability with respect thereto;
(j) to vote by proxy or otherwise on behalf of the Liquidating Trust and with full power of substitution all shares of stock and all securities held by the Trustee as Trust Assets hereunder and to exercise every power, election, discretion, option and subscription right and give every notice, make every demand, and to do every act or thing in respect of any shares of stock or any securities held by the Trustee as Trust Assets which the Trustee might or could do if it was the absolute owner thereof;
(k) to undertake or join in any merger, plan of reorganization, consolidation, liquidation, dissolution, readjustment or other transaction of any corporation, any of whose shares of stock or other securities, obligations, or properties may at any time constitute a part of the Trust Assets and to accept the substituted shares of stock, bonds, securities, obligations and properties and to hold the same in trust in accordance with the provisions hereof;
(l) to authorize transactions between corporations or other entities whose securities, or other interests therein (either in the nature of debt or equity) are held by the Trustee as part of the Trust Assets;
(m) in connection with the sale or other disposition or distribution of any securities held by the Trustee, to comply with applicable U.S. Federal and state securities laws and applicable Canadian and provincial securities laws, and to enter into agreements relating to the sale or other disposition or distribution thereof;
(n) to terminate and dissolve any entities owned by the Liquidating Trust;
(o) to direct, to the extent necessary, the administrator of the Company’s employee benefit plans in accordance with the terms and conditions of such plans; and
(p) to perform any act authorized, permitted, or required under any instrument, contract, agreement, right, obligation, or cause of action relating to or forming a part of the Trust Assets whether in the nature of an approval, consent, demand, or notice thereunder or otherwise, unless such act would require the consent of the Distribution Trusts in accordance with the express provisions of this Agreement.
ARTICLE VII
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(a) the Trustee shall not be required to perform any duties or obligations except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Trustee;
(b) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth, accuracy and completeness thereof, on the statements and certificates or opinions furnished to the Trustee and conforming to the requirements of this Agreement;
(c) the Trustee shall not be liable for any error of judgment made in good faith;
(d) the Trustee shall not be liable with respect to any action taken or omitted to be taken in good faith by it (i) in accordance with a written opinion of legal counsel requested by and addressed to the Trustee or (ii) at the written direction of the trustees of each of the Distribution Trusts where such direction has been approved by the affirmative vote of or written consents of beneficiaries of such Distribution Trusts having a majority of the aggregate Units assigned to such Distribution Trusts; and
(e) the Trustee shall not be responsible for the acts or omissions of any Successor Trustee, nor shall any Successor Trustee be responsible for the acts or omissions of a predecessor trustee unless such trustee, in bad faith, knowingly or intentionally, participated in, approved of, acquiesced in or concealed the fraud or other misconduct.
(a) The Trustee may rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The Trustee may consult with legal counsel to be selected by it, and the Trustee shall not be liable for any action taken or suffered by it in accordance with the advice of such counsel.
(c) Persons dealing with the Trustee shall look only to the Trust Assets to satisfy any liability incurred by the Trustee in good faith to any such Person in carrying out the terms of the Liquidating Trust, and the Trustee shall have no individual obligation to satisfy any such liability.
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ARTICLE VIII
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ARTICLE IX
ARTICLE X
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ARTICLE XI
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require, and any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Agreement, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of this Section 11.3 shall not apply to any suit by the Trustee, and no such undertaking shall be required from the Trustee.
ARTICLE XII
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having aggregate Units of at least a majority of the total Units allocated to all beneficiaries of such Beneficial Trusts thereof approve the making of such request to the Trustee, the Trustee shall proceed under the provisions of Section 12.2 to call a meeting of the trustees of the Distribution Trusts. The written request shall specify in reasonable detail the action proposed to be taken. If the Trustee fails to call such meeting within such thirty (30)-day period, then such meeting may be called by the trustees of the Distribution Trusts or by their designated representatives.
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ARTICLE XIII
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the benefit of or not adverse to the interests of the Distribution Trusts or the beneficiaries thereof; and (B) does not alter the proportionate interest of a Distribution Trust or any beneficiary thereofin any way without the consent of the Distribution Trust or beneficiary thereof adversely affected thereby.
ARTICLE XIV
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Trust. The Trustee may require any Distribution Trust to provide, in the manner required by the Trustee, such information that the Trustee determines is required to satisfy the Trustee' obligations under applicable tax law, and the Trustee may condition any distribution to any Distribution Trust upon compliance with such requirement. Amounts withheld pursuant to this Section 14.3 with respect to any Distribution Trust shall be treated as having been distributed to such Distribution Trust for purposes of determining the distributions which such Distribution Trust has received and is entitled to receive hereunder.
14.4 Laws as to Construction. The validity, interpretation, construction and performance of this Agreement and disputes and controversies arising with respect to the transactions contemplated herein shall be governed by the laws of the State of Delaware, irrespective of Delaware’s choice-of-law principles that would apply the law of any other jurisdiction, and the Company and, the Trustee consent and agree that this Agreement shall be governed by and construed in accordance with such laws.
(a) If to the Trustee: Able Holdings (U.S.), Inc.
Attn: Xxxxx Xxxxx, Chairman
0000 Xxxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Email: xxxxx@xxxxxxxxxxxx.xxx
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(b) If to the Company: SinoCoking Coal & Coke Chemical Industries Inc.
Attn: Jianhua Lv, President
Kuanggong Road and Tiyu Road
10th Floor, Chengshi Xin Yong She, Xxxx Xxxx
Xxxxxx Xxxxxxxx, Xxxxxxxxxxxx
Xxxxx Xxxxxxxx, Xxxxx 000000
Fax: x000000000000
With a copy to: Xxxxx Xxxx, Esq.
Xxxxxxxxxx & Xxxxx LLP
Xxxxxxx Plaza
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: 000.000.0000
Email: xxxxx@xxxxxxxxxxxxxxx.xxx
IN WITNESS WHEREOF, Xxxxxxxxxxxx.xxx, Inc. has caused this Agreement to be executed, by its President, and Ableauctions Delaware, Inc. has executed this Agreement as Trustee and not as an individual, effective as of this 5th day of February, 2010.
| XXXXXXXXXXXX.XXX INC. | ABLE HOLDINGS (U.S.), INC., AS TRUSTEE OF THE ABLE (U.S.) LIQUIDATING TRUST | |||
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By: /s/Xxxxx Xxxxx
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By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
|
Xxxxx Xxxxx
|
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Its: President
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its: Chairman
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SCHEDULE A
TRANSFERRED ASSETS
Any and all assets, both tangible and intangible, owned by the Company (the “Assets”) prior to the Closing Date in accordance with the Share Exchange Agreement, including, without limitation, the following:
(i) all of the issued and outstanding shares or other interests in and to the Company’s subsidiaries, joint ventures, partnerships, limited partnerships, limited liability companies or other business entities including, without limitation, Unlimited Closeouts Inc., Xxxxxxxxxx.xxx Technologies, Ltd., Rapidfusion Technologies Inc., Axion Investment Corporation, Gruv Holdings Corporation, AAC Holdings Ltd., xXxxxxxx.xxx International Ltd., iCollector International, Ltd., Xxxxxxxxxxxx.xxx (Washington), Inc., Township Holdings Ltd. and Surrey Central City Ltd.;
(ii) cash on deposit or cash received prior to the Acquisition and all accounts, including, without limitation, deposit accounts, investment accounts, all present and future rights of the Company to payment for services rendered, all accounts receivable (billed and unbilled), notes receivable, contract rights, book debts, receipts in transit, credits, pre-paid expenses, deferred charges, advance payments, lease and other security deposits, rights to escrows, and pre-paid items relating to contracts, claims for refunds debentures, drafts and other obligations or indebtedness owing to the Company, no matter how they arise (including, without limitation, any such obligation that might be characterized as an account, contract right or general intangible under the UCC in effect in any jurisdiction);
(iii) all inventory, including, without limitation, all goods, merchandise and other personal property, now owned by the Company;
(iv) all intellectual property, including, without limitation, royalty rights, copyrights, trademarks and domain names;
(v) all real property owned by the Company directly or through its subsidiaries;
(vi) all contract rights including without limitation leases and options and the documents evidencing such rights, all insurance policies, and all rights and claims of Company , whether matured, contingent or otherwise, against third parties relating to the Assets;
(vii) all furniture, fixtures, supplies, and computer and other equipment;
(viii) all right of Company under the Share Exchange Agreement; and
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(viii) all books and records relating to the Company and its subsidiaries, joint ventures, partnerships, limited partnerships, limited liability companies or other business entities existing prior to the Closing Date, including, without limitation, indemnity agreements, tax returns, workpapers and schedules, organizational documents, minute books and stock ledgers, stock certificates, membership certificates or other evidences of ownership, SEC reports and filings, files relating to Company’s listing on the NYSE American Stock Exchange, employee records, bank statements, books of account and other financial records, electronic mail and electronicdocuments, customer and vendor lists and files, designs, drawings, price lists, marketing plans, sales records and records related to the purchase to or sale by Company of any assets.
The Transferred Assets shall exclude shares of the capital stock of Top Favour and assets held by Top Favour or its subsidiaries or affiliates, and any assets that may be acquired after the Closing Date by Top Favour that do not relate to the business and operations of the Company.
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SCHEDULE B
ASSUMED LIABILITIES
The Trustee assumes, and agrees to pay or otherwise perform or discharge, the Company’s liabilities including, without limitation (i) all of the Company’s unsatisfied debts, claims, commitments, suits, obligations, and other liabilities, (whether absolute, accrued, asserted or unasserted, fixed, contingent, liquidated, unliquidated or otherwise) arising out of the Company’s ownership of the Transferred Assets and from the operation of the Company’s business or other activities of the Company prior to the Closing Date including, without limitation, contractual obligations (including lease obligations), local, state and federal taxes, license fees, accrued and unpaid costs of overhead, employment related liabilities (including wages, vacation days, unused sick pay claims, severance and liabilities related to employment agreements, employee benefit plans and collective bargaining agreements), liabilities that may arise from adverse claims, disputes, proceedings, audits, investigations or inquiries (asserted, instituted or rendered, or otherwise existing or occurring, prior to, on or at any time after, the Closing Date) arising out of the Company’s ownership of the Transferred Assets, from the operation of the Company’s business or other activities of the Company prior to the Closing Date, accounts payable and trade debts and commitments based on express or implied warranties, and any taxes, fees, expenses, liabilities, debts or obligations of the Company relating to the ; (ii) the indemnification liabilities and the Company’s indemnification responsibilities as set forth in or arising under (A) its Articles of Incorporation (as amended) or Bylaws (as amended) prior to the Closing Date, (B) the Company’s obligations under the Share Exchange Agreement, including but not limited to the indemnification obligations set forth in Article 5 thereof, (C) the Closing Letter dated February 2, 2010, by and among the parties to the Share Exchange Agreement and the Liquidating Trust, and (D) any indemnity agreements entered into with its officers and directors; and (iii) any costs and expenses incurred or to be incurred in connection with the administration of the Liquidating Trust and liquidation of the Transferred Assets by the Liquidating Trust.
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SCHEDULE C
TRUSTEE’S COMPENSATION
The Trustee shall receive an annual fee for its services, payable as follows:
$40,000 on the Transfer Date
$40,000 on the first anniversary of the Transfer Date
In addition, the Trustee, in its sole discretion, may authorize the payment of an additional annual Trustee fee of US$40,000 for each subsequent year during which the Liquidating Trust any time is in existence, payable on each succeeding anniversary of the Transfer Date.
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