SHARE EXCHANGE AGREEMENT by and among GLORIOUS PIE LIMITED and CHINA ECO- HOSPITALITY OPERATIONS, INC. and SHAREHOLDER OF GLORIOUS PIE LIMITED and REPRESENTATIVE OF THE INVESTORS OF CHINA ECO-HOSPITALITY, INC. Dated as of August 13, 2009
Exhibit 2.1
by
and among
GLORIOUS
PIE LIMITED
and
and
SHAREHOLDER
OF GLORIOUS PIE LIMITED
and
REPRESENTATIVE
OF THE INVESTORS OF CHINA ECO-HOSPITALITY, INC.
Dated
as of August 13, 2009
SHARE
EXCHANGE AND STOCK PURCHASE AGREEMENT
This
SHARE EXCHANGE AND STOCK
PURCHASE AGREEMENT (this “Agreement”), dated as
of August [__], 2009, is by and among China Eco-Hospitality Operations,
Inc., a Delaware corporation (“China Eco
Hospitality”), Glorious Pie Limited, a British Virgin Islands company
(“Glorious
Pie”), the shareholder of Glorious Pie identified on Exhibit A
hereto (the “Glorious Pie
Shareholder”), and the representative of the investors (“Representative”) of
China Eco-Hospitality (together referred to herein as the “Investors,” each an
“Investor”).
Each of the parties to this Agreement is individually referred to herein as a
“Party” and
collectively, as the “Parties.” Capitalized
terms used herein that are not otherwise defined herein shall have the meanings
ascribed to them in Annex A
hereto.
WHEREAS, Glorious Pie have 100
shares of capital stock (the “Glorious Pie Stock”)
issued and outstanding, all of which are held by the Glorious Pie
Shareholder.
WHEREAS, the Glorious Pie
Shareholder has agreed to transfer all of his Glorious Pie Stock in exchange for
10,355,000 shares of newly issued shares of the common stock of China
Eco-Hospitality, par value $0.00001 per share (“China Eco-Hospitality
Stock”) that will, in the aggregate, constitute 82.84% of the issued and
outstanding capital stock of China Eco-Hospitality, on a fully diluted basis, as
of and immediately after the closing of the share exchange and stock purchase
(the “Share
Exchange”) provided in this Agreement. The 10,355,000 shares of China
Eco-Hospitality Stock to be issued to the Glorious Pie Shareholder are referred
to herein as “Glorious
Pie Shareholder Shares.”
WHEREAS, China Eco-Hospitality
conducted a private offering at the offering price of $1.50 per share in
reliance upon the Regulation S (the “Regulation S
Offering”) promulgated by the United Securities and Exchange Commission
(the “SEC”)
under the Securities Act of 1933, as amended (the “Securities Act”) and
the closing of the Regulation S Offering shall occur simultaneously with the
closing of this Share Exchange.
WHEREAS, each Investor in the
Regulation S Offering has signed a power of attorney to designate the
Representative as true and lawful attorneys-in-fact to negotiate and enter into
this Share Exchange Agreement on his or her behalf.
WHEREAS, at the closing of
this Share Exchange, China Eco-Hospitality shall issue to Investors an aggregate
of 332,000 shares of its common stock at the offering price of $1.50 per share,
constituting 2.66% of the issued and outstanding capital stock of China
Eco-Hospitality, on a fully diluted basis, as of and immediately after the
closing of the Share Exchange. The number of shares to be issued to each
Investor is set forth adjacent such Investor’s name on Exhibit
C.
WHEREAS, it is the intention
of the Parties that: (i) the Share Exchange shall qualify as a tax-free
reorganization under Section 368(a)(1)(B) of Internal Revenue Code of 1986, as
amended; and (ii) the Share Exchange shall qualify as a transaction in
securities exempt from registration or qualification under the Securities Act
and in effect on the date of this Agreement; and
WHEREAS, the board of
directors of each of China Eco-Hospitality and Glorious Pie has determined that
it is in their best interest and the best interest of their stockholders to
effect this Share Exchange set forth in this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the respective representations, warranties,
covenants and agreements set forth herein, and intending to be legally bound
hereby, the Parties agree as follows:
ARTICLE
I
1.1 Exchange Glorious Pie Common
Stock for China Eco-Hospitality Common Stock. On the
Closing Date (as defined in Section 1.3 of this Agreement), the Glorious Pie
Shareholder shall sell, transfer, convey, assign and deliver to China
Eco-Hospitality his Glorious Pie Common Stock free and clear of all liens in
exchange for China Eco-Hospitality Common Stock listed on Exhibit A opposite
such Glorious Pie Shareholder’s name.
1.2 Regulation S Offering
Shares. On the Closing Date, China Eco-Hospitality shall issue to each
Investor the number of shares such Investor purchased in the Regulation S
Offering, at the offering price of $1.50 per share, as set forth adjacent such
Investor’s name on Exhibit
C.
1.3 Closing and Actions at
Closing. The closing of the transactions (the “Closing”)
contemplated by this Agreement shall take place at the offices of Xxxxxx &
Xxxxxx, LLP, 000 Xxxxx 0 Xxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000 commencing at
9:00 a.m. local time on the second business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to consummate the
Share Exchange (other than conditions with respect to actions that the
respective parties will take at Closing) or such other date and time as the
Parties may mutually determine (the “Closing
Date”).
1.4 Directors of China
Eco-Hospitality at Closing. On the Closing Date, Xxxx Wa Kei Anthony
shall resign from the board of directors of China Eco-Hospitality (the “Board of China
Eco-Hospitality”), and Tai Xxx Xxx shall be appointed to the Board of
China Eco-Hospitality.
1.5 Officers of China
Eco-Hospitality at Closing. On the Closing Date, Xxxx Wa Kei Anthony
shall resign from all the officer positions he held at China Eco-Hospitality,
and the following individual shall be appointed to the offices of China
Eco-Hospitality.
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Tai
Xxx Xxx: President, Secretary, Treasurer, Chief Executive Officer, and
Chief Financial Officer
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For U.S.
federal income tax purposes, the Share Exchange is intended to constitute a
tax-free reorganization within the meaning of Section 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended (the “Code”). The Parties
to this Agreement hereby adopt this Agreement as a “plan of reorganization”
within the meaning of Sections 1.368-2(g) of the United States Treasury
Regulations, and agree to file and retain such information as shall be required
under Section 1.368-3T of the United States Treasury Regulations.
Notwithstanding the foregoing or anything else to the contrary contained in this
Agreement, the Parties acknowledge and agree that no Party is making any
representation or warranty as to the qualification of the Share Exchange as a
reorganization under Section 368 of the Code or as to the effect, if any, that
any transaction consummated prior to, on or after the Closing Date has or may
have on any such reorganization status. The Parties acknowledge and agree that
each (i) has had the opportunity to obtain independent legal and tax advice with
respect to the Transactions and this Agreement, and (ii) is responsible for
paying its own Taxes, including without limitation, any adverse Tax consequences
that may result if the transaction contemplated by this Agreement is determined
not to qualify as a reorganization under Section 368 of the Code.
ARTICLE
II
The Glorious Pie Shareholder hereby
represents and warrants to China Eco-Hospitality as follows.
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2.1
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Good
Title. The
Glorious Pie Shareholder is the record and beneficial owner, and has good
title to its Glorious Pie Stock, with the right and authority to sell and
deliver such Glorious Pie Stock. Upon delivery of any certificate or
certificates duly assigned, representing the same as herein contemplated
and/or upon registering of Glorious Pie as the new owner of such Glorious
Pie Stock in the share register of Glorious Pie, China Eco-Hospitality
will receive good title to such Glorious Pie Stock, free and clear of all
liens.
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2.2
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Power and Authority. Each
Glorious Pie Shareholder has the legal power, capacity and authority to
execute and deliver this Agreement and each Transaction Document to which
the Glorious Pie Shareholder is a party, to consummate the transactions
contemplated by this Agreement, and each Transaction Document to which the
Glorious Pie Shareholder is a party, and to perform the Glorious Pie
Shareholder’s obligations under this Agreement and each Transaction
Document to which the Glorious Pie Shareholder is a party. All
acts required to be taken by the Glorious Pie Shareholder to enter into
this Agreement, to deliver each Transaction Document to which he is a
party and to carry out the Transactions have been properly
taken. This Agreement constitutes a legal, valid and binding
obligation of the Glorious Pie Shareholder, enforceable against the
Glorious Pie Shareholder in accordance with the terms
hereof.
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2.3
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No Conflicts. The
execution and delivery of this Agreement by the Glorious Pie Shareholder
and the performance by the Glorious Pie Shareholder of his obligations
hereunder in accordance with the terms hereof: (a) will not require the
consent of any third party or governmental entity under any Laws; (b) will
not violate any laws applicable to the Glorious Pie Shareholder and (c)
will not violate or breach any contractual obligation to which the
Glorious Pie Shareholder is a
party.
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2.4 Consultant Fee.
The
Glorious Pie Shareholder represents and warrants that he has not created any
obligation for any finder’s, consultant’s or investment banker’s or broker’s fee
in connection with the Share Exchange.
2.5 Investment
Intent. The China
Eco-Hospitality Stock proposed to be acquired by the Glorious Pie Shareholder
hereunder will be acquired for investment for its own account, and not with a
view to the resale or distribution of any part thereof, and the Glorious Pie
Shareholder has no present intention of selling or otherwise distributing the
China Eco-Hospitality Stock, except in compliance with applicable securities
laws.
2.6 Sophistication. The
Glorious Pie Shareholder is a sophisticated investor, as described in Rule
506(b)(2)(ii) promulgated under the Securities Act and has such experience in
business and financial matters that it is capable of evaluating the merits and
risk of an investment in China Eco-Hospitality.
2.7 Non-Registration.
The
Glorious Pie Shareholder understands that the Glorious Pie Shareholder Shares
have not been registered under the Securities Act and, if issued in accordance
with the provisions of this Agreement, will be issued by reason of a specific
exemption from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of the investment intent and the
accuracy of the Glorious Pie Shareholder’s representations as expressed
herein. The non-registration shall have no prejudice with respect to
any rights, interests, benefits and entitlements attached to the China
Eco-Hospitality Stock in accordance with China Eco-Hospitality’s charter
documents or the laws of its jurisdiction of incorporation.
2.8 Restricted
Securities. The
Glorious Pie Shareholder understands that the Glorious Pie Shareholder Shares
are characterized as “restricted securities” under the Securities Act inasmuch
as this Agreement contemplates that, if acquired by the Glorious Pie Shareholder
pursuant hereto, the Glorious Pie Shareholder Shares would be acquired in a
transaction not involving a public offering. The issuance of the Glorious Pie
Shareholder Shares hereunder have not been registered under the Securities Act
or the securities laws of any state of the U.S. and that the issuance of
Glorious Pie Shareholder Shares is being effected in reliance upon an
exemption from registration afforded either under Section 4(2) of the Securities
Act for transactions by an issuer not involving a public offering or Regulation
S for offers and sales of securities outside the U.S. The Glorious Pie
Shareholder further acknowledges that if the Glorious Pie Shareholder Shares are
issued to the Glorious Pie Shareholder in accordance with the provisions of this
Agreement, such Glorious Pie Shareholder Shares may not be resold without
registration under the Securities Act or the existence of an exemption
therefrom. The Glorious Pie Shareholder represents that it is familiar with Rule
144 promulgated under the Securities Act, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities
Act.
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2.9 Status; Additional
Representations and Warranties of Non-U.S. Persons. The
Glorious Pie Shareholder represents and warrants to China Eco-Hospitality that
the Glorious Pie Shareholder is not a U.S. Person. The Glorious Pie Shareholder
further makes the representations and warranties to China
Eco-Hospitality.
2.10
Legends.
The
Glorious Pie Shareholder hereby agrees with China Eco-Hospitality that the
Glorious Pie Shareholder Shares will bear the following legend or one that is
substantially similar to the following legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “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) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR (2) 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.
2.11 Additional Legend;
Consent. Additionally, the Glorious Pie Shareholder Shares will bear any
legend required by the “blue sky” laws of any state to the extent such laws are
applicable to the securities represented by the certificate so legended. The
Glorious Pie Shareholder consents to China Eco-Hospitality making a notation on
its records or giving instructions to any transfer agent of Glorious Pie
Shareholder Shares in order to implement the restrictions on transfer of the
Glorious Pie Shareholder Shares.
ARTICLE
III
Glorious
Pie represents, warrants and agrees that all of the statements in the following
subsections of this Article III are true and complete as of the date hereof. The
disclosure schedules attached hereto as Schedules 3.2 through
3.19 (the “Glorious Pie Disclosure
Schedules”) are divided into sections that correspond to the sections of
this Article III. The EBH Disclosure Schedules comprise lists of all exceptions
to the truth and accuracy in all material respects of, and of all disclosures or
descriptions required by, the representations and warrants set forth in this
Article III.
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3.1 Organization, Standing and
Power.Glorious Pie is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized and has the
corporate power and authority and possesses all governmental franchises,
licenses, permits, authorizations and approvals necessary to enable it to own,
lease or otherwise hold its properties and assets and to conduct its businesses
as presently conducted, other than such franchises, licenses, permits,
authorizations and approvals the lack of which, individually or in the
aggregate, has not had and would not reasonably be expected to have a material
adverse effect on Glorious Pie, a material adverse effect on the ability of
Glorious Pie to perform its obligations under this Agreement or on the ability
of Glorious Pie to consummate the Share Exchange (an “Glorious Pie Material
Adverse Effect”). Glorious Pie is duly qualified to do
business in each jurisdiction where the nature of its business or its ownership
or leasing of its properties make such qualification necessary except where the
failure to so qualify would not reasonably be expected to have a Glorious Pie
Material Adverse Effect. Glorious Pie has delivered to China
Eco-Hospitality true and complete copies of the Glorious Pie Constituent
Instruments in each case as amended through the date of this
Agreement.
3.2 Glorious Pie
Subsidiaries. Schedule 3.2 sets
forth a list of the ownership by Glorious Pie. Except as set forth on Schedule 3.2,
Glorious Pie
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3.3
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does
not as of the date of this Agreement own, directly or indirectly, any
capital stock or other securities of, or have any beneficial ownership
interest in, or hold any equity or similar interest in, or have any
investment in any corporation, limited liability company, partnership,
limited partnership, joint venture or other company, person or other
entity.
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3.3 Capital
Structure. Glorious Pie has authorized capital stock
consisting of 50,000 common shares, of which 100 shares are issued and
outstanding as of the date hereof. All of the Glorious Pie Stock is owned of
record by the Glorious Pie Shareholder. The Glorious Pie Stock is the sole
outstanding shares of capital stock of Glorious Pie and there are no other
outstanding shares of capital stock or voting securities and no outstanding
commitments to issue any shares of capital stock or voting securities. Glorious
Pie is the sole record and beneficial owner of all of the issued and outstanding
capital stock of each of its subsidiaries. All outstanding shares of
the capital stock of Glorious Pie and each of its subsidiaries are duly
authorized, validly issued, fully paid and nonassessable and not subject to or
issued in violation of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under any provision of
the applicable corporate laws of the British Virgin Islands, the Glorious Pie
Constituent Instruments or any Contract to which Glorious Pie is a party or
otherwise bound. There are not any bonds, debentures, notes or other
indebtedness of Glorious Pie or any of its subsidiaries having the right to vote
(or convertible into, or exchangeable for, securities having the right to vote)
on any matters on which holders of Glorious Pie Stock or the capital stock of
any of its subsidiaries may vote (“Voting Glorious Pie
Debt”). Except as set forth above, as of the date of this
Agreement, there are not any options, warrants, rights, convertible or
exchangeable securities, “phantom” stock rights, stock appreciation rights,
stock-based performance units, commitments, Contracts, arrangements or
undertakings of any kind to which Glorious Pie or any of its subsidiaries is a
party or by which any of them is bound (a) obligating Glorious Pie or any of its
subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other equity interests in, or any
security convertible or exercisable for or exchangeable into any capital stock
of or other equity interest in, Glorious Pie or any of its subsidiaries or any
Voting Glorious Pie Debt, (b) obligating Glorious Pie or any of its subsidiaries
to issue, grant, extend or enter into any such option, warrant, call, right,
security, commitment, Contract, arrangement or undertaking or (c) that give any
person the right to receive any economic benefit or right similar to or derived
from the economic benefits and rights occurring to holders of the capital stock
of Glorious Pie or of any of its subsidiaries. As of the date of this
Agreement, there are not any outstanding contractual obligations of Glorious Pie
to repurchase, redeem or otherwise acquire any shares of capital stock of
Glorious Pie.
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3.4 Authority; Execution and
Delivery; Enforceability of Agreement. Glorious
Pie has all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the Share Exchange. The execution and
delivery by Glorious Pie of this Agreement and the consummation by Glorious Pie
of the Share Exchange have been duly authorized and approved by the Board of
Glorious Pie and no other corporate proceedings on the part of Glorious Pie are
necessary to authorize this Agreement and the Share Exchange. When
executed and delivered, this Agreement will be enforceable against Glorious Pie
in accordance with its terms.
(a) The
execution and delivery by Glorious Pie of this Agreement does not, and the
consummation of the Share Exchange and compliance with the terms hereof will
not, conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or result in the creation of any Lien upon any of the properties or
assets of Glorious Pie or any of its subsidiaries under, any provision of (i)
the Glorious Pie Constituent Instruments or the comparable charter or
organizational documents of any of its subsidiaries, (ii) any contract to which
Glorious Pie or any of its subsidiaries is a party or by which any of their
respective properties or assets is bound or (iii) subject to the filings and
other matters referred to in Section 3.5(b), any material judgment, order or
decree or material Law applicable to Glorious Pie or any of its subsidiaries or
their respective properties or assets, other than, in the case of clauses (ii)
and (iii) above, any such items that, individually or in the aggregate, have not
had and would not reasonably be expected to have a Glorious Pie Material Adverse
Effect.
(b) Except
for any required filings under applicable “Blue Sky” or state securities
commissions, no Consent of, or registration, declaration or filing with, or
permit from, any governmental entity is required to be obtained or made by or
with respect to Glorious Pie or any of its subsidiaries in connection with the
execution, delivery and performance of this Agreement or the consummation of the
Transactions.
3.6 Taxes.
(a) Glorious
Pie has timely filed, or has caused to be timely filed on its behalf, all Tax
Returns required to be filed by it, and all such Tax Returns are true, complete
and accurate, except to the extent any failure to file or any inaccuracies in
any filed Tax Returns, individually or in the aggregate, have not had and would
not reasonably be expected to have a Glorious Pie Material Adverse
Effect. All Taxes shown to be due on such Tax Returns, or otherwise
owed, have been timely paid, except to the extent that any failure to pay,
individually or in the aggregate, has not had and would not reasonably be
expected to have a Glorious Pie Material Adverse Effect. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of Glorious Pie know of no basis for any such
claim.
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(b) The
Glorious Pie Financial Statements reflect an adequate reserve for all Taxes
payable by Glorious Pie and its subsidiaries (in addition to any reserve for
deferred Taxes to reflect timing differences between book and Tax items) for all
Taxable periods and portions thereof through the date of such financial
statements. No deficiency with respect to any Taxes has been
proposed, asserted or assessed against Glorious Pie or any of its subsidiaries,
and no requests for waivers of the time to assess any such Taxes are pending,
except to the extent any such deficiency or request for waiver, individually or
in the aggregate, has not had and would not reasonably be expected to have a
Glorious Pie Material Adverse Effect.
3.7 Benefit
Plans.
(a) Glorious
Pie does not have or maintain any collective bargaining agreement or any bonus,
pension, profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock option, phantom stock, retirement, vacation,
severance, disability, death benefit, hospitalization, medical or other plan,
arrangement or understanding (whether or not legally binding) providing benefits
to any current or former employee, officer or director of Glorious Pie or any of
its subsidiaries (collectively, “Glorious Pie Benefit
Plans”). As of the date of this Agreement there are not any
severance or termination agreements or arrangements between Glorious Pie or any
of its subsidiaries and any current or former employee, officer or director of
Glorious Pie or any of its subsidiaries, nor does Glorious Pie or any of its
subsidiaries have any general severance plan or policy.
(b) Since
March 31, 2009, there has not been any adoption or amendment in any material
respect by Glorious Pie or any of its subsidiaries of any Glorious Pie Benefit
Plan.
3.8
Litigation.
There is
no Action against or affecting Glorious Pie or any of its properties which (a)
adversely affects or challenges the legality, validity or enforceability of any
of this Agreement or the Glorious Pie Shares or (b) could, if there were an
unfavorable decision, individually or in the aggregate, have or reasonably be
expected to result in an Glorious Pie Material Adverse
Effect. Neither Glorious Pie nor any director or officer thereof (in
his or her capacity as such), is or has been the subject of any Action involving
a claim or violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty.
Glorious
Pie has conducted its business and operations in compliance with all applicable
Laws, including those relating to occupational health and safety and the
environment, except for instances of noncompliance that, individually and in the
aggregate, have not had and would not reasonably be expected to have an Glorious
Pie Material Adverse Effect. Glorious Pie has not received any
written communication during the past two years from a Governmental Entity that
alleges that Glorious Pie is not in compliance in any material respect with any
applicable Law. This Section 3.9 does not relate to matters with
respect to Taxes, which are the subject of Section 3.6.
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3.10 Consultant’s
Fees.
No
broker, investment banker, financial advisor or other person is entitled to any
broker’s, consultant’s, finder’s, financial advisor’s or other similar fee or
commission in connection with the Transactions based upon arrangements made by
or on behalf of Glorious Pie.
3.11
Contracts.
Except as
disclosed in Schedule
3.11, there are no contracts that are material to the business,
properties, assets, condition (financial or otherwise), results of operations or
prospects of Glorious Pie and its subsidiaries taken as a
whole. Glorious Pie is not in violation of or in default under (nor
does there exist any condition which upon the passage of time or the giving of
notice would cause such a violation of or default under) any Contract to which
it is a party or by which it or any of its properties or assets is bound, except
for violations or defaults that would not, individually or in the aggregate,
reasonably be expected to result in a Glorious Pie Material Adverse
Effect.
3.12 Title to
Properties.
Except as
disclosed in Schedule
3.12, Glorious Pie and any of its subsidiaries do not own any real
property.
3.13 Intellectual
Property.
Except as
disclosed in Schedule
3.13, Glorious Pie and any of its subsidiaries do not own, nor is validly
licensed nor otherwise has the right to use, any Intellectual Property
Rights. No claims are pending or, to the knowledge of Glorious Pie,
threatened that Glorious Pie is infringing or otherwise adversely affecting the
rights of any person with regard to any Intellectual Property
Right.
3.14 Insurance. Except as
disclosed in Schedule
3.14, Glorious Pie and any of its subsidiaries does not currently
maintain any form of insurance.
3.15 Labor
Matters.
Except as
disclosed in Schedule
3.15, there are no collective bargaining or other labor union agreements
to which Glorious Pie or any of its subsidiaries is a party or by which any of
them is bound. No material labor dispute exists or, to the knowledge
of Glorious Pie, is imminent with respect to any of the employees of Glorious
Pie.
3.16 Financial
Statements. Within thirty days (30) days after the
Closing,
Glorious
Pie will deliver to Glorious Pie its audited consolidated financial statements
for the fiscal years ended June 30, 2007 and 2008, and unaudited quarterly
review for March 31, 2009 (collectively, the “Glorious Pie Financial
Statements”). The Glorious Pie Financial Statements have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods indicated. The Glorious Pie
Financial Statements fairly present in all material respects the financial
condition and operating results of Glorious Pie, as of the dates, and for the
periods, indicated therein. Glorious Pie does not have any material liabilities
or obligations, contingent or otherwise, other than (a) liabilities incurred in
the ordinary course of business subsequent to June 30, 2008, and (b) obligations
under contracts and commitments incurred in the ordinary course of business and
not required under generally accepted accounting principles to be reflected in
the Glorious Pie Financial Statements, which, in both cases, individually and in
the aggregate, would not be reasonably expected to result in a Glorious Pie
Material Adverse Effect..
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Except as
set forth in Schedule
3.17, none of the officers or directors of Glorious Pie and, to the
knowledge of Glorious Pie, none of the employees of Glorious Pie is presently a
party to any transaction with Glorious Pie or any of its subsidiaries (other
than for services as employees, officers and directors), including any Contract
or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of Glorious Pie, any entity in which any officer, director, or any
such employee has a substantial interest or is an officer, director, trustee or
partner.
Glorious
Pie has taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision
under the Glorious Pie Constituent Instruments or the laws of
its jurisdiction of organization that is or could become applicable
to the Glorious Pie Shareholder as a result of the Glorious Pie Shareholder and
Glorious Pie fulfilling their obligations or exercising their rights under this
Agreement, including, without limitation, the issuance of the Glorious Pie
Shares and the Glorious Pie Shareholder’s ownership of the Shares.
3.19 No Additional
Agreements.
Except as
set forth in Schedule
3.19, Glorious Pie does not have any agreement or understanding with the
Glorious Pie Shareholder with respect to the Share Exchange other than as
specified in this Agreement.
3.20 Investment
Company.
Glorious
Pie is not, and is not an affiliate of, and immediately following the Closing
will not have become, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.
3.21 Disclosure.
All
disclosure provided to China Eco-Hospitality regarding Glorious Pie, its
business and the Transactions, furnished by or on behalf of Glorious Pie
(including Glorious Pie’s representations and warranties set forth in this
Agreement) is true and correct and does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
Neither
Glorious Pie, nor, to Glorious Pie’s knowledge, any director, officer, agent,
employee or other person acting on behalf of Glorious Pie, in the course of its
actions for, or on behalf of, Glorious Pie (a) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses relating
to political activity; (b) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (c)
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended; or (d) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign or
domestic government official or employee.
10
ARTICLE
IV
China
Eco-Hospitality represents, warrants and agrees that all of the statements in
the following subsections of this Article IV are true and complete as of the
date hereof. The disclosure schedules attached hereto as Schedules 4.3.1 through
4.28 (the “China Eco-Hospitality
Disclosure Schedules”) are divided into sections that correspond to the
sections of this Article IV. The China Eco-Hospitality Disclosure Schedules
comprise lists of all exceptions to the truth and accuracy in all material
respects of, and of all disclosures or descriptions required by, the
representations and warrants set forth in this Article IV.
China
Eco-Hospitality is duly organized, validly existing and in good standing under
the laws of the State of Delaware and has full corporate power and authority and
possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct its businesses as presently conducted, other than such
franchises, licenses, permits, authorizations and approvals the lack of which,
individually or in the aggregate, has not had and would not reasonably be
expected to have a material adverse effect on China Eco-Hospitality, a material
adverse effect on the ability of China Eco-Hospitality to perform its
obligations under this Agreement or on the ability of China Eco-Hospitality to
consummate the Transactions (a “China Eco-Hospitality
Material Adverse Effect”). China Eco-Hospitality is duly
qualified to do business in each jurisdiction where the nature of its business
or its ownership or leasing of its properties makes such qualification necessary
and where the failure to so qualify would reasonably be expected to have a China
Eco-Hospitality Material Adverse Effect. China Eco-Hospitality has
delivered to Glorious Pie true and complete copies of the China Eco-Hospitality
Charter and the China Eco-Hospitality Bylaws.
China
Eco-Hospitality does not own, directly or indirectly, any capital stock,
membership interest, partnership interest, joint venture interest or other
equity interest in any person.
|
4.3
|
The
authorized capital stock of China Eco-Hospitality consists of 500,000,000 shares
of Common Stock, par value $0.00001 per share, and 100,000,000 shares of
undesignated preferred stock, par value $0.00001 per share. As of the
date hereof (a) 6,993,788 shares of China Eco-Hospitality’s common stock are
issued and outstanding, (b) no shares of preferred stock are issued and
outstanding, and (c) no shares of China Eco-Hospitality’s common stock or
preferred stock are held by China Eco-Hospitality in its
treasury. Except as set forth in the China Eco-Hospitality Disclosure
Letter, no shares of capital stock or other voting securities of China
Eco-Hospitality were issued, reserved for issuance or
outstanding. All outstanding shares of the capital stock of China
Eco-Hospitality are, and all such shares that may be issued prior to the date
hereof will be when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to or issued in violation of any purchase option,
call option, right of first refusal, preemptive right, subscription right or any
similar right under any provision of the Delaware Revised Statutes, the China
Eco-Hospitality Charter, the China Eco-Hospitality Bylaws or any Contract to
which China Eco-Hospitality is a
11
-continued-
party or
otherwise bound. Except as set forth in the China Eco-Hospitality
Disclosure Letter, there are not any bonds, debentures, notes or other
indebtedness of China Eco-Hospitality having the right to vote (or convertible
into, or exchangeable for, securities having the right to vote) on any matters
on which holders of China Eco-Hospitality’s common stock may vote (“Voting China Eco-Hospitality
Debt”). Except as set forth in Schedule 4.3.1
attached to this Agreement, as of the date of this Agreement, there are not any
options, warrants, rights, convertible or exchangeable securities, “phantom”
stock rights, stock appreciation rights, stock-based performance units,
commitments, Contracts, arrangements or undertakings of any kind to which China
Eco-Hospitality is a party or by which it is bound (a) obligating China
Eco-Hospitality to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other equity interests in, or any
security convertible or exercisable for or exchangeable into any capital stock
of or other equity interest in, China Eco-Hospitality or any Voting China
Eco-Hospitality Debt, (b) obligating China Eco-Hospitality to issue, grant,
extend or enter into any such option, warrant, call, right, security,
commitment, Contract, arrangement or undertaking or (c) that give any person the
right to receive any economic benefit or right similar to or derived from the
economic benefits and rights occurring to holders of the capital stock of China
Eco-Hospitality. As of the date of this Agreement, there are not any
outstanding contractual obligations of China Eco-Hospitality to repurchase,
redeem or otherwise acquire any shares of capital stock of China
Eco-Hospitality. Except as set forth in Schedule 4.3.2, China Eco-Hospitality is
not a party to any agreement granting any security holder of China
Eco-Hospitality the right to cause China Eco-Hospitality to register shares of
the capital stock or other securities of China Eco-Hospitality held by such
securityholder under the Securities Act. The stockholder list provided to
Glorious Pie is a current stockholder list generated and certified by its
Secretary, and such list accurately reflects all of the issued and outstanding
shares of the China Eco-Hospitality’s common stock.
The
execution and delivery by China Eco-Hospitality of this Agreement and the
consummation by China Eco-Hospitality of the Share Exchange have been duly
authorized and approved by the board of directors of China Eco-Hospitality and
the holders of a majority of its capital stock and no other corporate
proceedings on the part of China Eco-Hospitality are necessary to authorize this
Agreement and the Transactions. This Agreement constitutes a legal,
valid and binding obligation of China Eco-Hospitality, enforceable against China
Eco-Hospitality in accordance with the terms hereof.
(a) The
execution and delivery by China Eco-Hospitality of this Agreement does not, and
the consummation of Transactions and compliance with the terms hereof will not,
contravene, conflict with or result in any violation of or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any person under, or result in the creation of any
lien upon any of the properties or assets of China Eco-Hospitality under, any
provision of (i) the China Eco-Hospitality Certificate of Incorporation or China
Eco-Hospitality Bylaws, (ii) any material contract to which China
Eco-Hospitality is a party or by which any of its properties or assets is bound
or (iii) subject to the filings and other matters referred to in Section 4.5(b),
any material Order or material Law applicable to China Eco-Hospitality or its
properties or assets, other than, in the case of clauses (ii) and (iii) above,
any such items that, individually or in the aggregate, have not had and would
not reasonably be expected to have a China Eco-Hospitality Material Adverse
Effect.
12
(b) No
Consent of, or registration, declaration or filing with, or permit from, any
Governmental Entity is required to be obtained or made by or with respect to
China Eco-Hospitality in connection with the execution, delivery and performance
of this Agreement or the consummation of the Transactions, other than filings
under state “blue sky” laws, as may be required in connection with this
Agreement and the Transactions.
China
Eco-Hospitality has no liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) required by U.S. generally accepted
accounting principles to be set forth on a balance sheet of China
Eco-Hospitality or in the notes thereto. Schedule 4.6 sets
forth all financial and contractual obligations and liabilities (including any
obligations to issue capital stock or other securities of China Eco-Hospitality)
due after the date hereof. As of the date hereof, all liabilities of
China Eco-Hospitality have been paid off and shall in no event remain
liabilities of China Eco-Hospitality, Glorious Pie or the Glorious Pie
Shareholder following the Closing.
4.7. Financial
Statements.
China
Eco-Hospitality has delivered to Glorious Pie, the Glorious Pie Shareholders,
and Representative its audited financial statements for the fiscal year ended
July 31, 2008, and the unaudited quarterly review for December 31, 2008
(collectively, the “China Eco-Hospitality
Financial Statements”). The China Eco-Hospitality Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated. The China Eco-Hospitality Financial Statements fairly
present in all material respects the financial condition and operating results
of China Eco-Hospitality, as of the dates, and for the periods, indicated
therein. China Eco-Hospitality does not have any material liabilities
or obligations, contingent or otherwise, other than (a) liabilities
incurred in the ordinary course of business subsequent to December 31, 2008, and
(b) obligations under contracts and commitments incurred in the ordinary
course of business and not required under generally accepted accounting
principles to be reflected in the China Eco-Hospitality Financial Statements,
which, in both cases, individually and in the aggregate, would not be reasonably
expected to result in a China Eco-Hospitality Material Adverse
Effect.
Except
as disclosed in the most recent China Eco-Hospitality Financial Statements or
Schedule 4.8,
from the date of the most recent unaudited financial statements of China
Eco-Hospitality to the date of this Agreement, China Eco-Hospitality has
conducted its business only in the ordinary course, and during such period there
has not been:
(a) any
change in the assets, liabilities, financial condition or operating results of
China Eco-Hospitality from that reflected in the China Eco-Hospitality Financial
Statements, except changes in the ordinary course of business that have not
caused, in the aggregate, a China Eco-Hospitality Material Adverse
Effect;
(b) any
damage, destruction or loss, whether or not covered by insurance, that would
have a China Eco-Hospitality Material Adverse Effect;
13
(c) any
waiver or compromise by China Eco-Hospitality of a valuable right or of a
material debt owed to it;
(d) any
satisfaction or discharge of any lien, claim, or encumbrance or payment of any
obligation by China Eco-Hospitality, except in the ordinary course of business
and the satisfaction or discharge of which would not have a China
Eco-Hospitality Material Adverse Effect;
(e) any
material change to a material contract by which China Eco-Hospitality or any of
its assets is bound or subject;
(f) any
material change in any compensation arrangement or agreement with any employee,
officer, director or stockholder;
(g) any
resignation or termination of employment of any officer of China
Eco-Hospitality;
(h) any
mortgage, pledge, transfer of a security interest in or lien created by China
Eco-Hospitality with respect to any of its material properties or assets, except
liens for taxes not yet due or payable and liens that arise in the ordinary
course of business and that do not materially impair China Eco-Hospitality’s
ownership or use of such property or assets;
(i) any loans
or guarantees made by China Eco-Hospitality to or for the benefit of its
employees, officers or directors, or any members of their immediate families,
other than travel advances and other advances made in the ordinary course of its
business;
(j) any
declaration, setting aside or payment or other distribution in respect of any of
China Eco-Hospitality’s capital stock, or any direct or indirect redemption,
purchase, or other acquisition of any of such stock by China
Eco-Hospitality;
(k) any
alteration of China Eco-Hospitality’s method of accounting or the identity of
its auditors;
(l) any
issuance of equity securities to any officer, director or affiliate, except
pursuant to existing China Eco-Hospitality stock option plans; or
(m) any
arrangement or commitment by China Eco-Hospitality to do any of the things
described in this Section 4.8.
4.9 Taxes.
(a) China
Eco-Hospitality has timely filed, or has caused to be timely filed on its
behalf, all tax returns required to be filed by it, and all such tax returns are
true, complete and accurate, except to the extent any failure to file, any
delinquency in filing or any inaccuracies in any filed tax returns, individually
or in the aggregate, have not had and would not reasonably be expected to have a
China Eco-Hospitality Material Adverse Effect. All taxes shown to be
due on such tax returns, or otherwise owed, have been timely paid, except to the
extent that any failure to pay, individually or in the aggregate, has not had
and would not reasonably be expected to have a China Eco-Hospitality Material
Adverse Effect.
14
(b) The China
Eco-Hospitality Financial Statements reflect an adequate reserve for all Taxes
payable by China Eco-Hospitality (in addition to any reserve for deferred Taxes
to reflect timing differences between book and Tax items) for all Taxable
periods and portions thereof through the date of such financial
statements. No deficiency with respect to any Taxes has been
proposed, asserted or assessed against China Eco-Hospitality, and no requests
for waivers of the time to assess any such Taxes are pending, except to the
extent any such deficiency or request for waiver, individually or in the
aggregate, has not had and would not reasonably be expected to have a China
Eco-Hospitality Material Adverse Effect.
(c) There are
no liens for taxes (other than for current Taxes not yet due and payable) on the
assets of China Eco-Hospitality. China Eco-Hospitality is not bound
by any agreement with respect to Taxes.
From the
date of the China Eco-Hospitality Financial Statements to the date of this
Agreement, there has not been any adoption or amendment in any material respect
by China Eco-Hospitality of any bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, vacation, severance, disability, death
benefit, hospitalization, medical or other plan, arrangement or understanding
(whether or not legally binding) providing benefits to any current or former
employee, officer or director of China Eco-Hospitality (collectively, “China Eco-Hospitality
Benefit Plans”). As of the date of this Agreement, there are
not any employment, consulting, indemnification, severance or termination
agreements or arrangements between China Eco-Hospitality and any current or
former employee, officer or director of China Eco-Hospitality, nor does China
Eco-Hospitality have any general severance plan or policy.
China
Eco-Hospitality does not, and since its inception never has, maintained or
contributed to any “employee pension benefit plans” (as defined in Section 3(2)
of ERISA), “employee welfare benefit plans” (as defined in Section 3(1) of
ERISA) or any other China Eco-Hospitality Benefit Plan for the benefit of any
current or former employees, consultants, officers or directors of China
Eco-Hospitality.
4.12 Litigation.
There is
no Action against or affecting China Eco-Hospitality or any subsidiary or any of
their respective properties which (a) adversely affects or challenges the
legality, validity or enforceability of either of this Agreement or the Glorious
Pie Shares or (b) could, if there were an unfavorable decision, individually or
in the aggregate, have or reasonably be expected to result in a China
Eco-Hospitality Material Adverse Effect. Neither China
Eco-Hospitality nor any subsidiary, nor any director or officer thereof (in his
or her capacity as such), is or has been the subject of any Action involving a
claim or violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty.
15
China
Eco-Hospitality is in compliance with all applicable Laws, including those
relating to occupational health and safety, the environment, export controls,
trade sanctions and embargoes, except for instances of noncompliance that,
individually and in the aggregate, have not had and would not reasonably be
expected to have a China Eco-Hospitality Material Adverse
Effect. China Eco-Hospitality has not received any written
communication during the past two years from a Governmental Entity that alleges
that China Eco-Hospitality is not in compliance in any material respect with any
applicable Law. This Section 4.13 does not relate to matters with
respect to Taxes, which are the subject of Section 4.9.
4.14 Business
Activities.
China
Eco-Hospitality has not conducted any business activities, either directly or
indirectly, within any country that is on the U.S. Department of State’s list of
state sponsors of terrorism.
4.15 Contracts.
Except as
set forth in the Schedule 4.15, there
are no contracts that are material to the business, properties, assets,
condition (financial or otherwise), results of operations or prospects of China
Eco-Hospitality taken as a whole. China Eco-Hospitality is not in
violation of or in default under (nor does there exist any condition which upon
the passage of time or the giving of notice would cause such a violation of or
default under) any contract to which it is a party or by which it or any of its
properties or assets is bound, except for violations or defaults that would not,
individually or in the aggregate, reasonably be expected to result in a China
Eco-Hospitality Material Adverse Effect.
4.16 Title to
Properties.
China
Eco-Hospitality has good title to, or valid leasehold interests in, all of its
properties and assets used in the conduct of its businesses. All such
assets and properties, other than assets and properties in which China
Eco-Hospitality has leasehold interests, are free and clear of all liens, except
for Liens that, in the aggregate, do not and will not materially interfere with
the ability of China Eco-Hospitality to conduct business as currently
conducted. China Eco-Hospitality has complied in all material
respects with the terms of all material leases to which it is a party and under
which it is in occupancy, and all such leases are in full force and
effect. China Eco-Hospitality enjoys peaceful and undisturbed
possession under all such material leases.
4.17 Intellectual
Property.
China
Eco-Hospitality does not own, nor is validly licensed nor otherwise has the
right to use, any Intellectual Property Rights. No claims are pending
or, to the knowledge of China Eco-Hospitality, threatened that China
Eco-Hospitality is infringing or otherwise adversely affecting the rights of any
person with regard to any Intellectual Property Right.
4.18 Employees/Labor
Matters.
(a) There are
no collective bargaining or other labor union agreements to which China
Eco-Hospitality is a party or by which it is bound. No material labor
dispute exists or, to the knowledge of China Eco-Hospitality, is imminent with
respect to any of the employees of China Eco-Hospitality.
(b) Set
forth in the Schedule
4.18 (b) is a complete list of all stock option plans providing for the
grant by China Eco-Hospitality of stock options to directors, officers,
employees, consultants or other Persons.
16
(c) Except as
set forth in Schedule
4.18 (c), China Eco-Hospitality does not have any employee benefit plans
or arrangements covering its present and former employees or providing benefits
to such persons in respect of services provided to China
Eco-Hospitality.
(d) Except as
set forth in Schedule
4.18 (d), neither the consummation of the Share Exchange alone, nor in
combination with another event, with respect to each director, officer, employee
and consultant of China Eco-Hospitality, will result in (a) any payment
(including, without limitation, severance, unemployment compensation or bonus
payments) becoming due from China Eco-Hospitality, (b) any increase in the
amount of compensation or benefits payable to any such individual or
(c) any acceleration of the vesting or timing of payment of compensation
payable to any such individual. No agreement, arrangement or other contract of
China Eco-Hospitality provides benefits or payments contingent upon, triggered
by, or increased as a result of a change in the ownership or effective control
of China Eco-Hospitality.
None
of the officers or directors of China Eco-Hospitality and, to the knowledge of
China Eco-Hospitality, none of the employees of China Eco-Hospitality is
presently a party to any transaction with China Eco-Hospitality or any
subsidiary (other than for services as employees, officers and directors),
including any contract or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of China Eco-Hospitality, any entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
4.20 Solvency.
Based
on the financial condition of China Eco-Hospitality as of the Closing Date (and
assuming that the Closing shall have occurred), (a) China Eco-Hospitality’s fair
saleable value of its assets exceeds the amount that will be required to be paid
on or in respect of China Eco-Hospitality’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (b) China
Eco-Hospitality’s assets do not constitute unreasonably small capital to carry
on its business for the current fiscal year as now conducted and as proposed to
be conducted, including its capital needs, taking into account the particular
capital requirements of the business conducted by China Eco-Hospitality, and
projected capital requirements and capital availability thereof, and (c) the
current cash flow of China Eco-Hospitality, together with the proceeds China
Eco-Hospitality would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay
all amounts on or in respect of its debt when such amounts are required to be
paid. China Eco-Hospitality does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing and
amounts of cash to be payable on or in respect of its debt).
China
Eco-Hospitality has taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or other similar
anti-takeover provision under the China Eco-Hospitality’s charter documents or
the laws of its state of incorporation that is or could become applicable to the
Shareholders as a result of the Shareholders and China Eco-Hospitality
fulfilling their obligations or exercising their rights under this Agreement,
including, without limitation, the issuance of the Shares and the Shareholders’
ownership of the Shares.
17
4.22 No Additional
Agreements.
China
Eco-Hospitality does not have any agreement or understanding with the
Shareholders with respect to the Transactions other than as specified in this
Agreement.
4.23 Investment
Company.
China
Eco-Hospitality is not, and is not an affiliate of, and immediately following
the Closing will not have become, an “investment company” within the meaning of
the Investment Company Act of 1940, as amended.
4.24 Disclosure.
All
disclosure provided to Glorious Pie, the Glorious Pie Shareholders and Glorious
Pie Consultants regarding China Eco-Hospitality, its business and the Share
Exchange, furnished by or on behalf of China Eco-Hospitality (including China
Eco-Hospitality’s representations and warranties set forth in this Agreement) is
true and correct and does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
Except as
set forth in Schedule
4.25, China Eco-Hospitality has not granted or agreed to grant to any
person any rights (including “piggy-back” registration rights) to have any
securities of China Eco-Hospitality registered with the SEC or any other
governmental authority that have not been satisfied.
No event,
liability, development or circumstance has occurred or exists, or is
contemplated to occur with respect to China Eco-Hospitality, its subsidiaries or
their respective businesses, properties, prospects, operations or financial
condition, that would be required to be disclosed by China Eco-Hospitality under
applicable securities laws on a registration statement on Form S-1 filed with
the SEC relating to an issuance and sale by China Eco-Hospitality of its common
stock and which has not been publicly announced.
Neither
China Eco-Hospitality, nor to China Eco-Hospitality’s knowledge, any director,
officer, agent, employee or other person acting on behalf of China
Eco-Hospitality has, in the course of its actions for, or on behalf of, China
Eco-Hospitality (a) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to political activity;
(b) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (c) violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as
amended; or (d) made any unlawful bribe, rebate, payoff, influence payment,
kickback or other unlawful payment to any foreign or domestic government
official or employee.
ARTICLE
V
REPRESENTATIONS
AND WARRANTS OF
REPRESENTATIVE
OF INVESTORS OF CHINA ECO-HOSPITALITY
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5.1 Power and Authority.
The Representative has the legal power, capacity and authority to execute and
deliver this Agreement and each Transaction Document to which the Investors, in
whole or individual, shall be a party, to consummate the transactions
contemplated by this Agreement, and each Transaction Document to which the
Investors, in whole or individual, is a party, and to perform the
Representative’s obligations under this Agreement and each Transaction Document
to which Investors, in whole or individual, shall be a party. All
acts required to be taken by the Representative, on behalf of the Investors, in
whole or individual, to negotiate and to enter into this Agreement, to deliver
each Transaction Document and to carry out the Transactions have been properly
taken. This Agreement constitutes a legal, valid and binding obligation of the
Investors, in whole or individual, and their Representative, enforceable against
the Investors, in whole or individual, and their Representative in accordance
with the terms hereof.
5.2 No Conflicts. The
execution and delivery of this Agreement by the Representative and the
performance by the Representative of its obligations hereunder in accordance
with the terms hereof: (a) will not require the consent of any third party or
governmental entity under any Laws; (b) will not violate any laws applicable to
the Representative and (c) will not violate or breach any contractual obligation
to which the Representative is a party.
ARTICLE
VI
(a) Concurrently
herewith the Glorious Pie Shareholder is delivering to China Eco-Hospitality
this Agreement executed by the Glorious Shareholder.
(b) At or
prior to the Closing, the Glorious Pie Shareholder shall deliver to China
Eco-Hospitality:
|
(i)
|
certificate(s)
representing his Glorious Pie Stock; and
|
| (ii) | an original duly executed instrument of transfer and bought and sold note for transfer by the Glorious Pie Shareholder of his Glorious Pie Stock to China Eco-Hospitality. |
(a) Concurrently
herewith, China Eco-Hospitality is delivering to the Glorious Pie Shareholder,
to Glorious Pie, and to the Representative a copy of this Agreement executed by
China Eco-Hospitality.
(b) At or
prior to the Closing, China Eco-Hospitality shall deliver to Glorious
Pie:
19
(i) a
certificate from China Eco-Hospitality, signed by its Secretary or Assistant
Secretary, certifying that the attached copies of the China Eco-Hospitality
Articles of Incorporation, Bylaws and resolutions of the stockholders and Board
of China Eco-Hospitality approving this Agreement and the Transactions are all
true, complete and correct and remain in full force and effect;
(ii) a
certificate of good standing of China Eco-Hospitality dated within five (5)
business days of Closing issued by the Secretary of State of
Delaware;
(iii) a letter
of resignation from each director and officer of China Eco-Hospitality resigning
from their positions effective upon the Closing;
(iv) evidence
of the election of Tai Xxx Xxx as the director of China
Eco-Hospitality, and Tai Xxx Xxx as the President, Secretary, Treasurer,
Chief Executive Officer and Chief Financial Officer of China Eco-Hospitality
effective as of the Closing;
(v) such
pay-off letters and releases relating to liabilities of China Eco-Hospitality as
Glorious Pie shall request, in form and substance satisfactory to Glorious
Pie;
(vi) the
results of UCC, judgment lien and tax lien searches with respect to China
Eco-Hospitality, the results of which indicate no liens on the assets of China
Eco-Hospitality.
(c) At or
prior to the Closing, China Eco-Hospitality shall deliver to the Representative
of the Investors:
(i) a
certificate signed by the chief executive officer or chief financial officer of
China Eco-Hospitality as set forth in Section 2(b)(vii) of the Regulation S
Offering Subscription Agreement attached hereto as Exhibit
D.
(ii) other
documentation or information reasonably requested by the Investors’
Representative.
(d) At or
within five (5) business days following the Closing, China Eco-Hospitality shall
deliver to the Glorious Pie Shareholder a certificate representing the Glorious
Pie Shares issued to the Glorious Pie Shareholder as set forth on Schedule
A.
(e) At or
within five (5) business days following the Closing, China Eco-Hospitality shall
deliver to the Representative certificates representing the shares of China
Eco-Hospitality purchased by each Investor in the Regulation S
Offering.
(a) Concurrently
herewith, Glorious Pie is delivering to China Eco-Hospitality this Agreement
executed by Glorious Pie.
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(b) At or
prior to the Closing, Glorious Pie shall deliver to China Eco-Hospitality a
certificate from Glorious Pie, signed by its authorized officer certifying that
the attached copies of the Glorious Pie Constituent Instruments and resolutions
of the board of directors of Glorious Pie approving this Agreement and the
Transactions are all true, complete and correct and remain in full force and
effect.
(c) Concurrently
herewith, Glorious Pie is delivering to China Eco-Hospitality a certificate of
good standing dated within five (5) business days of the date hereof from the
jurisdiction where it incorporated.
(a) On
the Closing Date, the Representative shall deliver to China Eco-Hospitality the
executed power of attorney included as Exhibit B to the
Subscription Agreement attached hereto as Exhibit D from each
Investor.
(b) On
the Closing Date, the Representative shall deliver to China Eco-Hospitality a
certificate representing the truth and accuracy of all the representations and
warranties made by the Investor contained in the Subscription Agreement attached
as Exhibit D,
as of the Closing Date, as if such representations and warranties were made and
given on such date.
ARTICLE
VII
The
obligations of the Glorious Pie Shareholder, Glorious Pie and Representative to
enter into and complete the Closing are subject, at the option of the Glorious
Pie Shareholder, Glorious Pie and Representative, to the fulfillment on or prior
to the Closing Date of the following conditions:
(a) Representations and
Covenants. The representations and warranties of China
Eco-Hospitality contained in this Agreement shall be true in all material
respects on and as of the Closing Date with the same force and effect as though
made on and as of the Closing Date. China Eco-Hospitality shall have
performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by China
Eco-Hospitality on or prior to the Closing Date. China
Eco-Hospitality shall have delivered to the Glorious Pie Shareholders and
Glorious Pie a certificate, dated the Closing Date, to the foregoing
effect.
(b) Litigation. No
action, suit or proceeding shall have been instituted before any court or
governmental or regulatory body or instituted or threatened by any governmental
or regulatory body to restrain, modify or prevent the carrying out of the
Transactions or to seek damages or a discovery order in connection with such
Transactions, or which has or may have, in the reasonable opinion of Glorious
Pie or the Shareholders, a materially adverse effect on the assets, properties,
business, operations or condition (financial or otherwise) of China
Eco-Hospitality or Glorious Pie.
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(c) No Material Adverse
Change. There shall not have been any occurrence, event,
incident, action, failure to act, or transaction since July 31, 2008 which has
had or is reasonably likely to cause a China Eco-Hospitality Material Adverse
Effect.
(d) Post-Closing
Capitalization. At, and immediately after, the Closing, the
authorized capitalization, and the number of issued and outstanding shares of
the capital stock of China Eco-Hospitality, on a fully-diluted basis, as
indicated on a schedule to be delivered by the Parties at or prior to the
Closing, shall be acceptable to Glorious Pie and the Shareholders.
(e) Deliveries. The
deliveries specified in Section 6.2 shall have been made by China
Eco-Hospitality.
(f) Satisfactory Completion of
Due Diligence. Glorious Pie, the Glorious Pie Shareholders,
and Glorious Pie Consultants shall have completed their legal, accounting and
business due diligence of China Eco-Hospitality and the results thereof shall be
satisfactory to Glorious Pie and the Shareholders in their sole and absolute
discretion.
(g) Consents. All
material consents, waivers, approvals, authorizations or orders required to be
obtained, and all filings required to be made, by China Eco-Hospitality for the
authorization, execution and delivery of this Agreement and the consummation by
it of the transactions contemplated by this Agreement, shall have been obtained
and made by China Eco-Hospitality, except where the failure to receive such
consents, waivers, approvals, authorizations or orders or to make such filings
would not have a Material Adverse Effect on China Eco-Hospitality, Glorious Pie
Shareholders, Glorious Pieor Glorious Pie Consultant.
The
obligations of the Representative to enter into and complete the Closing are
subject to the fulfillment on or prior to the Closing Date that the deliveries
specified in Section 6.2 hereto share have been made by China
Eco-Hospitality.
The
obligations of China Eco-Hospitality to enter into and complete the Closing is
subject, at the option of China Eco-Hospitality, to the fulfillment on or prior
to the Closing Date of the following conditions, any one or more of which may be
waived by China Eco-Hospitality in writing.
(a) Representations and
Covenants. The representations and warranties of the Glorious
Pie Shareholder, Glorious Pie, and Representative contained in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing
Date. The Glorious Pie Shareholder, Glorious Pie and Representative
shall have performed and complied in all material respects with all covenants
and agreements required by this Agreement to be performed or complied with by
the Glorious Pie Shareholder, Glorious Pie and Representative on or prior to the
Closing Date. Glorious Pie shall have delivered to China
Eco-Hospitality a certificate, dated the Closing Date, to the foregoing
effect.
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(b) Litigation. No
action, suit or proceeding shall have been instituted before any court or
governmental or regulatory body or instituted or threatened by any governmental
or regulatory body to restrain, modify or prevent the carrying out of the Share
Exchange or to seek damages or a discovery order in connection with such
Transactions, or which has or may have, in the reasonable opinion of China
Eco-Hospitality, a materially adverse effect on the assets, properties,
business, operations or condition (financial or otherwise) of Glorious
Pie.
(c) No Material Adverse
Change. There shall not have been any occurrence, event,
incident, action, failure to act, or transaction since its inception which has
had or is reasonably likely to cause an Glorious Pie Material Adverse
Effect.
(d) Post-Closing
Capitalization. At, and immediately after, the Closing, the
authorized capitalization, and the number of issued and outstanding shares of
the capital stock of China Eco-Hospitality, on a fully-diluted basis, as
indicated on a schedule to be delivered by the Parties at or prior to the
Closing, shall be acceptable to China Eco-Hospitality.
(e) Deliveries. The
deliveries specified in Sections 6.1, 6.3, 6.4 and 6.5 shall have been made by
the Glorious Pie Shareholders, Glorious Pie, Glorious Pie Consultants, and
Representative, respectively.
(f) Satisfactory Completion of
Due Diligence. China Eco-Hospitality shall have completed its
legal, accounting and business due diligence of Glorious Pie, the Glorious Pie
Shareholders and Glorious Pie Consultants and the results thereof shall be
satisfactory to China Eco-Hospitality in its sole and absolute
discretion.
(g) Directors of China
Eco-Hospitality. Xxxx Xxx Xxx Xxxxxxx shall have resigned as the director
of China Eco-Hospitality, and Tai Xxx Xxx shall be appointed as
directors of China Eco-Hospitality
(h) Officers of China
Eco-Hospitality. Xxxx Xxx Xxx Xxxxxxx shall have resigned as officers of
China Eco-Hospitality, and the following named person shall be appointed to the
offices set forth opposite his name:
Officer
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Tai
Xxx Xxx: President, Secretary, Treasurer, Chief Executive Officer, and
Chief Financial Officer
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(i) Consents. All
material consents, waivers, approvals, authorizations or orders required to be
obtained, and all filings required to be made, by the Glorious Pie Shareholders,
Glorious Pie Consultants or Glorious Pie for the authorization, execution and
delivery of this Agreement and the consummation by them of the transactions
contemplated by this Agreement, shall have been obtained and made by the
Glorious Pie Shareholders, Glorious Pie Consultants or Glorious Pie, except
where the failure to receive such consents, waivers, approvals, authorizations
or orders or to make such filings would not have a Material Adverse Effect on
the China Eco-Hospitality, Glorious Pie Shareholders, Glorious Pie Consultants
or Glorious Pie.
ARTICLE
VIII
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8.1 Exchange Listing.
China Eco-Hospitality shall take its best efforts to list and trade its shares
of common stock on the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select or any successor market thereto (collectively, “Nasdaq”), or NYSE
Alternext U.S. (“AMEX”) or any
successor market thereto at the earliest possible time and shall take all
commercially reasonable actions to fulfill said requirement by no later than the
date which is 12 months after the Closing Date (the “Listing
Date”).
8.2 Blue Sky
Laws.
China
Eco-Hospitality shall take any action (other than qualifying to do business in
any jurisdiction in which it is not now so qualified) required to be taken under
any applicable state securities laws in connection with the issuance of the
China Eco-Hospitality Stock in connection with this Agreement.
8.3 Public Announcements.
China Eco-Hospitality and Glorious Pie will consult with each other before
issuing, and provide each other the opportunity to review and comment upon, any
press releases or other public statements with respect to this Agreement and the
Transactions and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
Law, court process or by obligations pursuant to any listing agreement with any
national securities exchanges.
8.4 Fees and
Expenses.
All fees
and expenses incurred in connection with this Agreement shall be paid by the
Party incurring such fees or expenses, whether or not this Agreement is
consummated.
8.5 Continued
Efforts.
Each
Party shall use commercially reasonable efforts to (a) take all action
reasonably necessary to consummate the Share Exchange, and (b) take such
steps and do such acts as may be necessary to keep all of its representations
and warranties true and correct as of the Closing Date with the same effect as
if the same had been made, and this Agreement had been dated, as of the Closing
Date.
8.6 Access.
Each
Party shall permit representatives of any other Party to have full access to all
premises, properties, personnel, books, records (including Tax records),
contracts, and documents of or pertaining to such Party.
From the
date of this Agreement until the Closing Date, each of Glorious Pie and China
Eco-Hospitality shall, except as otherwise permitted by the terms of this
Agreement, operate only in the ordinary and usual course of business consistent
with its past practices and shall use reasonable commercial efforts to (a)
preserve intact its business organization, (b) preserve the good will and
advantageous relationships with customers, suppliers, independent contractors,
employees and other Persons material to the operation of its business, and (c)
not permit any action or omission that would cause any of its representations or
warranties contained herein to become inaccurate or any of its covenants to be
breached in any material respect.
ARTICLE
IX
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9.1 Indemnity of the
Company. China Eco-Hospitality agrees as to defend, indemnify and
hold harmless the Glorious Pie, Glorious Pie Shareholder, and
Representative, and their officers and directors, from and against, and to
reimburse the Glorious Pie, Glorious Pie Shareholder and Representatives, and
their officers and directors, with respect to, all liabilities,
losses, costs and expenses, including, without limitation, reasonable attorneys’
fees and disbursements (collectively the “Losses”) asserted
against or incurred by Glorious Pie, the Glorious Pie Shareholder, and
Representative, and their officers and directors by reason of, arising out of,
or in connection with any material breach of any representation or warranty
contained in this Agreement made by China Eco-Hospitality or in any document or
certificate delivered by China Eco-Hospitality pursuant to the provisions of
this Agreement or in connection with the transactions contemplated
thereby.
9.2 Indemnity of Glorious Pie,
the Glorious Pie Shareholder and Representative. Glorious Pie,
Glorious Pie Shareholder and Representative agree to defend,
indemnify and hold harmless China Eco-Hospitality from and against, and to
reimburse China Eco-Hospitality with respect to, all losses, including, without
limitation, reasonable attorneys’ fees and disbursements, asserted against or
incurred by China Eco-Hospitality by reason of, arising out of, or in connection
with any material breach of any representation or warranty contained in this
Agreement and made by the Shareholder or in any document or certificate
delivered by the Shareholder pursuant to the provisions of this Agreement or in
connection with the transactions contemplated thereby, it being understood that
the Shareholder shall have responsibility hereunder only for the representations
and warranties made by him.
9.3 Indemnification
Procedure. A Party (an “Indemnified Party”)
seeking indemnification shall give prompt notice to the other party (the “Indemnifying Party”)
of any claim for indemnification arising under this Article IX. The Indemnifying
Party shall have the right to assume and to control the defense of any such
claim with counsel reasonably acceptable to such Indemnified Party, at the
Indemnifying Party’s own cost and expense, including the cost and expense of
reasonable attorneys’ fees and disbursements in connection with such defense, in
which event the Indemnifying Party shall not be obligated to pay the fees and
disbursements of separate counsel for such in such action. In the event,
however, that such Indemnified Party’s legal counsel shall determine that
defenses may be available to such Indemnified Party that are different from or
in addition to those available to the Indemnifying Party, in that there could
reasonably be expected to be a conflict of interest if such Indemnifying Party
and the Indemnified Party have common counsel in any such proceeding, or if the
Indemnified Party has not assumed the defense of the action or proceedings, then
such Indemnifying Party may employ separate counsel to represent or defend such
Indemnified Party, and the Indemnifying Party shall pay the reasonable fees and
disbursements of counsel for such Indemnified Party. No settlement of any such
claim or payment in connection with any such settlement shall be made without
the prior consent of the Indemnifying Parry which consent shall not be
unreasonably withheld.
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10.1 Publicity. No party
shall cause the publication of any press release with respect to this Agreement
or the transactions contemplated hereby without the consent of the other
parties, unless a press release or announcement is required by law. If any such
announcement or other disclosure is required by law, the disclosing party agrees
to give the non-disclosing parties prior notice and an opportunity to comment on
the proposed disclosure.
10.2 Successors and
Assigns. This Agreement shall insure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns; provided,
however, that no party shall assign or delegate any of the obligations created
under this Agreement without the prior written consent of the other
parties.
10.3 Fees and Expenses.
Except as otherwise expressly provided in this Agreement or disclosed in the
Glorious Pie and China Eco-Hospitality Disclosure Schedules, all legal and other
fees, costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs or expenses.
10.4 Notices. All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given upon receipt by the Parties at the
following addresses (or at such other address for a Party as shall be specified
by like notice):
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If
to China Eco-Hospitality, to:
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Xxxx Wa
Xxx Xxxxxxx
Xxxx 000,
0/X., Xxxx Xxxx Xxxxxxxxxx Xxxxxx
15 Xxxxxx
Xxx Xxxxxx, Xxxxxx Xxx Xxx
Xxxxxxx,
Xxxx Xxxx
Tel.:(000)
00000000
with a
copy (which does not constitute a notice) to:
Xxxxxx
& Xxxxxx, LLP
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
Tel.:
000-000-0000
Fax:
000-000-0000
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If
to Glorious Pie, to:
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Tai Xxx
Xxx
Xxxx 000,
0/X., Two Grand Tower
000
Xxxxxx Xxxx, Xxxxxx
Xxxxxxx,Xxxx
Kong
with a
copy (which does not constitute a notice) to:
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Xxxxxx
& Xxxxxx, LLP
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
Tel.:
000-000-0000
Fax:
000-000-0000
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If
to the Glorious Pie Shareholder,
to;
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Tai Xxx
Xxx
Xxxx 000,
0/X., Two Grand Tower
000
Xxxxxx Xxxx, Xxxxxx
Xxxxxxx,Xxxx
Kong
No
provision of this Agreement may be waived or amended except in a written
instrument signed by Glorious Pie, China Eco-Hospitality and each of the
Glorious Pie Shareholders. No waiver of any default with respect to
any provision, condition or requirement of this Agreement shall be deemed to be
a continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of any Party to exercise any right hereunder in any manner
impair the exercise of any such right. No consideration shall be
offered or paid to the any Shareholder to amend or consent to a waiver or
modification of any provision of any Transaction Document.
10.6 Termination.
(a) Termination of
Agreement. The Parties may terminate this Agreement as
provided below:
(i)
Glorious Pie, China Eco-Hospitality, the Glorious Pie Shareholder and the
Representative may terminate this Agreement by mutual written consent at any
time prior to the Closing;
(ii)
China Eco-Hospitality may terminate this Agreement by giving written notice to
Glorious Pie, the Glorious Pie Shareholder, and Representative at any time prior
to the Closing (A) in the event Glorious Pie, or any Glorious Pie Shareholder or
Representative has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, China Eco-Hospitality has
notified Glorious Pie, the Glorious Pie Shareholder and/or the
Representative of the breach, and the breach has continued without cure for a
period of twenty (20) days after the notice of breach; (B) in the event that
China Eco-Hospitality objects to any information contained in the Glorious Pie
Disclosure Schedules and the Parties cannot agree on mutually satisfactory
modifications thereto; or (C) if the Closing shall not have occurred on or
before September 1, 2009 by reason of the failure
of any condition precedent under Section 7.2 hereof (unless the
failure results primarily from China Eco-Hospitality itself breaching any
representation, warranty, or covenant contained in this Agreement);
and
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(iii)
Glorious Pie may terminate this Agreement by giving written notice to China
Eco-Hospitality at any time prior to the Closing (A) in the event China
Eco-Hospitality has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, Glorious Pie has notified
China Eco-Hospitality of the breach, and the breach has continued without cure
for a period of twenty (20) days after the notice of breach; (B) in the event
that Glorious Pie objects to any information contained in the China
Eco-Hospitality Disclosure Schedules and the Parties cannot agree on mutually
satisfactory modifications thereto; or (C) if the Closing shall not have
occurred on or before [__], 2009 by reason of the failure of any condition
precedent under Section 8.1 hereof (unless the failure results primarily from
Glorious Pie, any Glorious Pie Shareholder or any Glorious Pie Consultant
breaching any representation, warranty, or covenant contained in this
Agreement).
(b) Effect of
Termination. If any Party terminates this Agreement pursuant
to Section 11.6 (a) above, all rights and obligations of the Parties hereunder
shall terminate without any liability of any Party to any other Party (except
for any liability of any Party then in breach).
If any
certificate or instrument evidencing any Glorious Pie Shares or Glorious Pie
Consultant Shares is mutilated, lost, stolen or destroyed, China Eco-Hospitality
shall issue or cause to be issued in exchange and substitution for and upon
cancellation thereof, or in lieu of and substitution therefor, a new certificate
or instrument, but only upon receipt of evidence reasonably satisfactory to
China Eco-Hospitality of such loss, theft or destruction and customary and
reasonable indemnity, if requested. The applicants for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs associated with the issuance of such replacement
Shares. If a replacement certificate or instrument evidencing any
Shares is requested due to a mutilation thereof, China Eco-Hospitality may
require delivery of such mutilated certificate or instrument as a condition
precedent to any issuance of a replacement.
10.8 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, the Glorious Pie Shareholders, Glorious Pie
Consultants, China Eco-Hospitality and Glorious Pie will be entitled to specific
performance under this Agreement. The Parties agree that monetary
damages may not be adequate compensation for any loss incurred by reason of any
breach of obligations described in the foregoing sentence and hereby agrees to
waive in any action for specific performance of any such obligation the defense
that a remedy at law would be adequate.
10.9 Limitation of
Liability.
Notwithstanding
anything herein to the contrary, each of China Eco-Hospitality and Glorious Pie
acknowledges and agrees that the liability of the Glorious Pie Shareholders
arising directly or indirectly, under any Transaction Document of any and every
nature whatsoever shall be satisfied solely out of the assets of the Glorious
Pie Shareholders.
10.10 Interpretation.
When a
reference is made in this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. Whenever the
words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”.
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10.11 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule or Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the Transactions is not affected
in any manner materially adverse to any Party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner to the end that the Transactions are fulfilled
to the extent possible.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the Parties and delivered to the
other Parties. Facsimile execution and delivery of this Agreement is
legal, valid and binding for all purposes.
This
Agreement, taken together with the Glorious Pie Disclosure Schedules and the
China Eco-Hospitality Disclosure Schedules, (a) constitute the entire agreement
and supersede all prior agreements and understandings, both written and oral,
among the Parties with respect to the Share Exchange and (b) are not intended to
confer upon any person other than the Parties any rights or
remedies.
10.14 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof, except to the extent the
laws of Delaware are mandatorily applicable to the Share Exchange.
10.15 Assignment.
Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by any of the Parties without the prior written consent of each of the
other Parties. Any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the Parties and their respective
successors and assigns.
[Signature Page
Follows]
29
IN
WITNESS WHEREOF, the parties hereto have caused this Share Exchange Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
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By: /s/
Xxxx Wa Xxx Xxxxxxx
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Name:
Xxxx Wa Kei Anthony
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Title:
President
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GLORIOUS
PIE LIMITED
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By:
/s/ Tai Xxx Xxx
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Name:
Tai Xxx Xxx
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Title: Chief
Executive Officer
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GLORIOUS
PIE SHAREHOLDER
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By:
/s/ Tai Xxx Xxx
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Name:
Tai Xxx Xxx
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REPRESENTATIVE
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By:
/s/ Tai Xxx Xxx
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Name:
Tai Xxx Xxx
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30