SHARE EXCHANGE AGREEMENT
This
Agreement dated as of the 14th
day of
December, 2007, by and among Achievers Magazine Inc., a Nevada corporation,
having its offices at 000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 2MP (the “Issuer”),
and
Sincere Investment (PTC), Ltd., a British Virgin Islands corporation, having
an
office at Trinity
Xxxxxxxx, P.O. Box 4301, Road Town, British Virgin Islands (the
“Shareholder”).
WITNESSETH:
WHEREAS,
the
Shareholder is the holder of all of the issued and outstanding capital stock
(the “Talent
Shares”)
of
Talent International Investment Limited, a British Virgin Islands corporation
(“Talent”);
WHEREAS,
the
Talent is also the holder of all of the issued and outstanding capital stock
of
Xinghe Yongle Carbon Co., Ltd.;
WHEREAS,
the
Issuer is willing to issue shares of its common stock, par value $.0001 per
share (“Common
Stock”),
to
the Shareholder in consideration for the Talent Shares;
NOW,
THEREFORE,
for the
mutual consideration set out herein, the parties agree as follows:
1.
Exchange
of Shares.
(a)
Issuance
of Shares by Issuer.
On and
subject to the conditions set forth in this Agreement, the Issuer will issue
to
the Shareholder, in exchange for all of the Talent Shares, which represents
all
of the issued and outstanding capital stock of Talent (the “Shares”),
5,867,608 shares of Common Stock, all of which will be issued in the name of
the
Shareholder.
(b)
Transfer
of Talent Shares by the Shareholder.
On and
subject to the conditions set forth in this Agreement, the Shareholder will
transfer to the Issuer all of the Talent Shares, free and clear of any and
all
liens, claims, encumbrances, preemptive rights, right of first refusal and
adverse interests of any kind, in exchange for the Shares to be issued to the
Shareholder and the Designees.
(c)
Closing.
The
issuance of the Shares to the Shareholder and the Designees and the transfer
of
the Talent Shares to the Issuer will take place at a closing (the “Closing”)
to be
held at the office of Sichenzia Xxxx Xxxxxxxx Xxxxxxx, LLP, 00 Xxxxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 as soon as possible after or contemporaneously with
the
satisfaction or waiver of all of the conditions to closing set forth in Section
4 of this Agreement.
2.
Representations
and Warranties of the Issuer.
The
Issuer hereby represents, warrants, covenants and agrees as
follows:
(a)
General.
(i)
The
Issuer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. The Issuer has the corporate power to
own
its properties and to carry on its business as now being conducted and is duly
qualified to do business and is in good standing in each jurisdiction in which
the failure to be so qualified and in good standing would have a material
adverse effect on the Issuer. The Issuer is not in violation of any provisions
of its certificate of incorporation or its bylaws. No consent, approval or
agreement of any individual or entity is required to be obtained by the Issuer
in connection with the execution and performance by the Issuer of this Agreement
or the execution and performance by the Issuer of any agreements, instruments
or
other obligations entered into in connection with this Agreement. The Issuer
does not have any equity investment or other interest, direct or indirect,
in,
or any outstanding loans, advances or guarantees to or on behalf of, any
domestic or foreign corporation, limited liability company, association,
partnership, joint venture or other entity.
(ii)
The
Issuer provided to the Shareholder true, correct and complete copies of the
Issuer’s articles of incorporation, including all amendments thereto, and the
Issuer’s bylaws, including all amendments thereto, as such articles of
incorporation and bylaws are in effect on the date hereof.
(iii)
The
Issuer has full power and authority to carry out the transactions provided
for
in this Agreement, and this Agreement constitutes the legal, valid and binding
obligations of the Issuer, enforceable in accordance with its terms, except
as
enforceability may be limited by bankruptcy, insolvency and other laws of
general application affecting the enforcement of creditor’s rights and except
that any remedies in the nature of equitable relief are in the discretion of
the
court. All necessary action required to be taken by the Issuer for the
consummation of the transactions contemplated by this Agreement has been
taken.
(iv)
The
Shares, when issued pursuant to this Agreement, will be duly and validly
authorized and issued, fully paid and non-assessable. The issuance of the Shares
to Shareholder and Designees is exempt from the registration requirements of
the
Securities Act of 1933, as amended (the “Securities
Act”),
pursuant to an exemption provided by Regulation S promulgated by the Securities
and Exchange Commission (“SEC”)
thereunder (“Regulation
S”).
(v) The
Issuer has authorized capital stock consisting of 75,000,000 shares of Issuer
Common Stock, of which 5,108,900 shares of Common Stock are issued and
outstanding on the date of this Agreement.
(vi)
The
Issuer is not party to any agreement or understanding pursuant to which any
securities of any class of capital stock are to be issued or created or
transferred. Except as contemplated in the securities purchase agreement dated
the date of this Agreement between the Issuer and XingGuang Investment
Corporation Limited (the “Purchase Agreement”), neither the Issuer nor any
officer, director or 5% stockholder of the Issuer has any agreements, plans,
understandings or proposals, whether formal or informal or whether oral or
in
writing, pursuant to which it or he granted or may have issued or granted any
individual or entity any Convertible Security or any interest in the Issuer
or
the Issuer’s earnings or profits, however defined. As used in this Agreement,
the term “Convertible Securities” shall mean any options, rights, warrants,
convertible debt, equity securities or other instrument or agreement upon the
exercise or conversion of which or upon the exchange of which or pursuant to
the
terms of which additional shares of any class of capital stock of the Issuer
may
be issued.
(vii)
There
is
no private or governmental action, suit, proceeding, claim, arbitration or
investigation pending before any agency, court or tribunal, foreign or domestic,
or, to the Issuer’s Best Knowledge, threatened against the Issuer or any of its
properties or any of its officers or directors (in their capacities as such).
There is no judgment, decree or order against the Issuer that could prevent,
enjoin, alter or delay any of the transactions contemplated by this Agreement.
The term “Best Knowledge” of the Issuer shall mean and include (i) actual
knowledge and (ii) that knowledge which a prudent businessperson would
reasonably have obtained in the management of such Person’s business affairs
after making due inquiry and exercising the due diligence which a prudent
businessperson should have made or exercised, as applicable, with respect
thereto.
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(viii) There
are
no material claims, actions, suits, proceedings, inquiries, labor disputes
or
investigations (whether or not purportedly on behalf of the Issuer) pending
or,
to the Issuer’s Best Knowledge, threatened against the Issuer or any of its
assets, at law or in equity or by or before any governmental entity or in
arbitration or mediation. No bankruptcy, receivership or debtor relief
proceedings are pending or, to the best of the Issuer’s knowledge, threatened
against the Issuer.
(ix) The
Issuer has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
Law,
judgment, decree, injunction or order, applicable to it, the conduct of its
business, or the ownership or operation of its business. References in this
Agreement to “Laws” shall refer to any laws, rules or regulations of any
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including, without
limitation, any federal or state securities law, regulation, rule or
administrative order).
(x) The
Issuer has properly filed all tax returns required to be filed and has paid
all
taxes shown thereon to be due. All tax returns previously filed are true and
correct in all material respects.
(xi)
The
Issuer has no outstanding liabilities or obligations to any party except as
reflected on the Issuer’s Form 10-QSB for the quarter ended October 31, 2007,
other than charges since such date similar to those incurred in past periods
and
consistent with past practice, all of which will be paid in full or otherwise
satisfied on or prior to the Closing Date.
(xii)
The
Issuer’s Form 10-KSB for the year ended July 31, 2007, contains the audited
financial statements of the Issuer, certified by Xxxxxxx
Xxxxxx, Chartered Accountants
(“Auditor”),
the
Issuer’s independent registered accounting firm, and the Issuer’s Form 10-QSB
for the quarter ended October 31, 2007 contains the unaudited financial
statements of the Issuer which have been reviewed by Auditor. The balance sheets
fairly present the financial position of the Issuer, as of their respective
dates, and each of the consolidated statements of income, stockholders’ equity
and cash flows (including any related notes and schedules thereto) fairly
presents the results of operations, cash flows and changes in stockholders’
equity, as the case may be, of the Issuer for the periods to which they relate,
in each case in accordance with generally accepted accounting principles
(“GAAP”)
consistently applied during the periods involved. Auditor is independent as
to
the Issuer in accordance with the rules and regulations of the SEC. The books
and records of the Issuer have been, and are being, maintained in all material
respects in accordance with GAAP and any other applicable legal and accounting
requirements and reflect only actual transaction. The Issuer has not received
any letters of comments from the SEC relating to any filing made by the Issuer
with the SEC which has not been addressed by an amended filing, and each amended
filing fully responds to the questions raised by the staff of the SEC. The
Issuer maintains disclosure controls and procedures that are effective to ensure
that information required to be disclosed by the Issuer in its annual and
quarterly reports filed with the SEC is accumulated and communicated to the
Issuer’s management, including its principal executive and financial officers as
appropriate, to allow timely decisions regarding required disclosure. There
were
no significant changes in the Issuer’s internal controls or other factors that
could significantly affect such controls subsequent to July 31, 2007. The Issuer
has not received any advice from Auditor to the effect that there is any
significant deficiency or material weakness in the Issuer’s controls or
recommending any corrective action on the part of the Issuer or any subsidiary
of the Issuer. The Issuer does not have any contingent liabilities. All of
the
Issuer’s operations are conducted by its wholly-owned subsidiary, Achievers
Publishing Inc., a British Columbia corporation (the “Subsidiary”). As of the
date of this Agreement, the Issuer has no assets and no liabilities other than
the liabilities set forth on closing balance sheet of the Issuer as of the
closing date, which is set forth on Schedule A to this Agreement. All
liabilities of the Issuer will be paid or otherwise satisfied at the Closing,
and the Issuer will provide Talent with evidence of such payment. The Issuer
has
no guarantee or other contingent obligations or liabilities relating to the
operations, liabilities or commitments of the Subsidiary, whether contractually
or as a matter of law.
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(xiii) The
execution and delivery of this Agreement by the Issuer and the consummation
of
the transactions contemplated by this Agreement will not result in any material
violation of the Issuer’s certificate of incorporation or by-laws, or any
applicable Law.
(xiv) The
Issuer has provided the Shareholder with a currently dated lien search showing
no liens on the business or assets of the Issuer.
(b)
SEC
Documents.
The
Issuer’s Common Stock is registered pursuant to Section 12(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
The
Issuer is current with its reporting obligations under the Exchange Act. The
Common Stock is listed on the OTC Bulletin Board. The Issuer has received no
notice, either oral or written, with respect to the continued listing of the
Common Stock on the OTC Bulletin Board. The Issuer has not provided to any
investor any information that, according to applicable law, rule or regulation,
should have been disclosed publicly prior to the date hereof by the Issuer,
but
which has not been so disclosed. As of their respective dates, the Issuer’s
filings made pursuant to the Exchange Act (the “Issuer
SEC Documents”)
complied in all material respects with the requirements of the Exchange Act,
and
rules and regulations of the SEC promulgated thereunder and the Issuer SEC
Documents did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
3.
Representations
and Warranties of Shareholder.
The
Shareholder hereby represents, warrants, covenants and agrees as
follows:
(a)
The
Shareholder understands that the offer and sale of the Shares is being made
only
by means of this Agreement and understands that the Issuer has not authorized
the use of, and the Shareholder confirms that he or she is not relying upon,
any
other information, written or oral, other than material contained in this
Agreement. The Shareholder is aware that the purchase of the Shares involves
a
high degree of risk and that the Shareholder may sustain, and has the financial
ability to sustain, the loss of his entire investment, understands that no
assurance can be given that the Issuer will be profitable in the future, that
there is no public market for the Common Stock, and the Issuer can give no
assurance that there will ever be a public market for the Common Stock.
Furthermore, in subscribing for the Shares, the Shareholder acknowledges it
is
not relying upon any projections or any statements of any kind relating to
future revenue, earnings, operations or cash flow in making an investment in
the
Shares.
(b)
The
Shareholder is not acquiring the Shares as a result of, and will not itself
engage in, any "directed selling efforts" (as defined in Regulation S) in the
United States in respect of the Shares which would include any activities
undertaken for the purpose of, or that could reasonably be expected to have
the
effect of, conditioning the market in the United States for the resale of the
Shares; provided, however, that the Shareholder may sell or otherwise dispose
of
the Shares pursuant to registration thereof under the Securities Act and any
applicable state and provincial securities laws or under an exemption from
such
registration requirements;
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(c)
The
Shareholder acknowledges and agrees that none of the Shares have been registered
under the Securities Act, or under any state securities or "blue sky" laws
of
any state of the United States, and, unless so registered, may not be offered
or
sold in the United States or, directly or indirectly, to U.S. Persons, as that
term is defined in Regulation S, except in accordance with the provisions of
Regulation S, pursuant to an effective registration statement under the
Securities Act, or pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and in each
case
in accordance with applicable state and provincial securities laws;
(d)
The
Shareholder acknowledges and agrees that the Issuer will refuse to register
any
transfer of the Shares not made in accordance with the provisions of Regulation
S, pursuant to an effective registration statement under the Securities Act
or
pursuant to an available exemption from the registration requirements of the
Securities Act and in accordance with applicable state and provincial securities
laws;
(e) The
Shareholder represents and warrants that no broker or finder was involved
directly or indirectly in connection with his or her purchase of the Shares
pursuant to this Agreement. The Shareholder shall indemnify the Issuer and
hold
it harmless from and against any manner of loss, liability, damage or expense,
including fees and expenses of counsel, resulting from a breach of the
Shareholder’s warranty contained in this Paragraph 3(e).
(f)
The
Shareholder understands that he or she has no registration rights with respect
to the Shares.
(g)
The
Shareholder is not a citizen or resident of the United States.
(h)
The
Shareholder is acquiring the Shares for investment only and not with a view
to
resale or distribution and, in particular, it has no intention to distribute
either directly or indirectly any of the Shares in the United States or to
U.S.
Persons;
(i)
The
Shareholder is acquiring the Shares as principal for the Shareholder’s own
account, for investment purposes only, and not with a view to, or for, resale,
distribution or fractionalization thereof, in whole or in part, and no other
person has a direct or indirect beneficial interest in such Shares;
(j)
The
Shareholder is not an underwriter of, or dealer in, the common stock of the
Issuer, nor is the Shareholder participating, pursuant to a contractual
agreement or otherwise, in the distribution of the Shares;
(l)
The
Shareholder is not aware of any advertisement of any of the Shares;
and
(m)
No
person has made to the Shareholder any written or oral
representations:
(i) that
any
person will resell or repurchase any of the Shares;
(ii) that
any
person will refund the purchase price of any of the Shares;
(iii) as
to the
future price or value of any of the Shares; or
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(iv) that
any
of the Shares will be listed and posted for trading on any stock exchange
or
automated dealer quotation system or that application has been made to list
and
post any of the Shares of the Issuer on any stock exchange or automated dealer
quotation system.
4.
Conditions
to the Obligation of Shareholder and the Issuer.
The
obligations of Shareholder and the Issuer under this Agreement are subject
to
the following conditions:
(a) The
completion of the sale of notes an investor group pursuant to an agreement
between the Issuer and XingGuang Investment Corporation Limited
contemporaneously with the exchange contemplated by this Agreement;
(b) The
completion of the purchase by the Issuer of 3,340,000 shares of Common Stock
pursuant to a buy-back agreement dated the date of this Agreement among the
Issuer, as purchaser, and Arto Tavukciyan and Xxxxxx Xxxxx, as sellers, with
625,000 of the shares of Common Stock being held in escrow subject to the Issuer
making payments required in the buy-back agreement.
(c) The
purchase by eight investors of the issuance of
1,751,900
shares
of common stock from an investor group.
(d) The
delivery by the Issuer of a legal opinion from counsel to the Company in a
form
reasonably satisfactory to the Shareholder that: (i) the Shares, when
issued pursuant to this Agreement, will be duly and validly authorized and
issued, fully paid and non-assessable and (ii) all of the outstanding shares
of
capital stock of the Issuer have been duly and validly authorized and issued,
fully paid and non-assessable and were either (x) registered pursuant to the
Securities Act of 1933, as amended, or (y) were issued in transactions exempt
from the registration requirements of such Act pursuant to Section 4(2) and/or
Rule 505 or 506 of the Securities and Exchange Commission under such
Act.
(e) The
resignation of, and execution of a general release by, all officers and
directors of the Issuer, and the election of Dengyong Jin as the sole
director.
(f) The
stock
of the Subsidiary, shall have been transferred or sold in a transaction whereby
the Issue has no obligations or liabilities, direct or contingent, with respect
to any current or future liabilities, obligations or contractual rights of
the
Subsidiary.
5. Miscellaneous.
(a)
This
Agreement constitutes the entire agreement between the parties relating to
the
subject matter hereof, superseding any and all prior or contemporaneous oral
and
prior written agreements, understandings and letters of intent. This Agreement
may not be modified or amended nor may any right be waived except by a writing
that expressly refers to this Agreement, states that it is a modification,
amendment or waiver and is signed by all parties with respect to a modification
or amendment or the party granting the waiver with respect to a waiver. No
course of conduct or dealing and no trade custom or usage shall modify any
provisions of this Agreement.
(b)
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed entirely
within such State.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective successors and permitted assigns.
(d)
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
document.
(e)
The
various representations, warranties, and covenants set forth in this Agreement
or in any other writing delivered in connection therewith shall survive the
issuance of the Shares.
[Signatures
on following page.]
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IN
WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the
date
first above written.
|
|
|
By:
/s/ Arto
Tavukciyan
|
|
Arto
Tavukciyan, President and Chief Executive Officer
|
|
|
|
Sincere
Investment (PTC), Ltd.
|
|
By:
/s/Xxxxxxx
Xxx
|
| Name: Xxxxxxx Xxx |
| Title: President |
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Schedule
A
Parent
Only Balance Sheet (unaudited)
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