ACQUISITION AGREEMENT
BY AND AMONG
ASPI, INC.
AND
PRESTIGE PRIME OFFICE, LTD
AND ITS SHAREHOLDERS
SHARE EXCHANGE AGREEMENT
This AGREEMENT, dated as of June 30, 2010 (the "Agreement"), by and
among ASPI, Inc., a Delaware corporation ("ASPI") and Prestige Prime Office,
Ltd., which is a Hong Kong corporation ("Acquiree") and the sole shareholder of
Acquiree, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
WHEREAS, the boards of directors of ASPI and Acquiree, respectively,
have each approved, as being in the best interests of the respective entities
and their stockholders, the Acquisition by a Share Exchange ("Exchange") of
Acquiree by ASPI, in accordance with the applicable provisions of the Delaware
General Corporate Law ("DGCL") and the Hong Kong Law;
WHEREAS, ASPI, Shareholders and Acquiree desire to make certain
representations, warranties, covenants and agreements in connection with the
Acquisition and also to prescribe various conditions to the Exchange; and
WHEREAS, this Agreement is intended to set forth the terms upon which
Acquiree will be acquired by ASPI from Shareholders.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
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ARTICLE I
THE CONSIDERATION
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SECTION 1.01. CONSIDERATION/ACQUISITION; EFFECTIVE TIME
The Acquisition shall become effective upon the delivery of the duly
executed stock certificates in Acquiree representing 100% of Acquiree
outstanding shares of common stock and delivery of the following consideration:
1. On April 19, 2010, $50,000 was paid.
2. 60,000,000 shares of restricted common stock of ASPI constituting
80% fully diluted and non-dilutable (immediately post closing)
ownership shall be issued to Acquiree's Shareholders pro rata in
exchange for 100% of Acquiree's outstanding common stock (4,000,000
shares of Acquiree). Further funding efforts post closing and further
mergers after 6 months will be dilutable to such shareholders.
SECTION 1.02. EFFECTS OF THE EXCHANGE.
At the Effective Time and by virtue of the Exchange, all of the
outstanding Acquiree common shares shall be conveyed to ASPI which shall be the
owning entity of the outstanding common shares of common stock of Acquiree.
SECTION 1.03. CONVERSION OF SECURITIES.
As of the Effective Time, by virtue of the Exchange:
(a) All of the outstanding common shares of Acquiree that are issued
and outstanding immediately prior to the Effective Time, shall be exchanged for
shares of ASPI in the conversion amount. All such shares of Acquiree shall be
conveyed to ASPI, and each holder of a certificate representing such shares
shall cease to have any rights with respect thereto, except the right to receive
the number of shares of ASPI Common Stock to be issued in consideration
therefore upon surrender of such certificate in accordance with Section 1.03(b).
(b) Each 1% ownership shares in Acquiree shall be entitled to receive
1/100th of 60,000,000 shares of ASPI in exchange for their shares in Acquiree.
SECTION 1.04. EXCHANGE PROCEDURES.
(a) As soon as practicable after the execution hereof, ASPI shall
provide to each Acquiree shareholder a letter of transmittal and instructions
for use in effecting the surrender of certificates representing shares of
Acquiree outstanding immediately prior to the Effective Time (the
"Certificates") in appropriate and customary form with such provisions as the
board of directors of ASPI after the Exchange may reasonably specify. Upon
surrender of a Certificate for cancellation to ASPI, together with such letter
of transmittal, duly and properly executed, the holder of such Certificate shall
be entitled to receive in exchange therefore a certificate representing that
number of shares of ASPI Common Stock as is equal to the product of the
percentage of Acquiree's shares represented by the certificate multiplied by the
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Conversion Amount, and the Certificate so surrendered shall be canceled. Until
surrendered as contemplated by this Section 1.05, each Certificate shall, at and
after the Effective Time, be deemed to represent only the right to receive, upon
surrender of such Certificate, ASPI Common Stock as contemplated by this Section
1.05, together with any dividends and other distributions payable as provided in
Section 1.05 hereof, and the holders thereof shall have no rights whatsoever as
stockholders of ASPI. Shares of ASPI Common Stock issued in the Exchange shall
be issued, and be deemed to be outstanding, as of the Effective Time. ASPI shall
cause all such shares of ASPI Common Stock issued pursuant to the Exchange to be
duly authorized, validly issued, fully paid and non-assessable and not subject
to preemptive rights.
(b) If any certificate representing shares of ASPI Common Stock is to
be issued in a name other than that in which the Certificate surrendered in
exchange therefore is registered, it shall be a condition of such exchange that
the Certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange shall pay
any transfer or other taxes required by reason of the issuance of certificates
for such shares of ASPI Common Stock in a name other than that of the registered
holder of the Certificate so surrendered.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and upon the posting by such
person of a bond in such amount as ASPI may reasonably direct as an indemnity
against any claim that may be made against it with respect to such Certificate,
ASPI will issue in respect of such lost, stolen or destroyed Certificate one or
more certificates representing shares of ASPI Common Stock as contemplated by
this Section 1.04 and such person shall be entitled to the dividend and other
distribution rights provided in Section 1.05 hereof.
(d) If any Certificates shall not have been surrendered prior to three
years after the Effective Time (or immediately prior to such earlier date on
which any payment in respect hereof would otherwise escheat or become the
property of any governmental unit or agency), the payment in respect of such
Certificates shall, to the extent permitted by applicable law, become the
property of the Surviving Entity, free and clear of all claims or shares of any
person previously entitled thereto.
(e) ASPI shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of a
Certificate surrendered for shares of ASPI Common Stock (and dividends or
distributions with respect to ASPI Common Stock as contemplated by Section 1.05
hereof) such amount as ASPI is required to deduct and withhold with respect to
the making of such payment under the Code, or provisions of any state, local or
foreign tax law. To the extent that amounts are so deducted and withheld, such
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of such Certificate.
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SECTION 1.05. DIVIDENDS AND DISTRIBUTIONS.
No dividends or other distributions declared or made with respect to
ASPI Common Stock with a record date on or after the Effective Time shall be
paid to the holder of a Certificate entitled by reason of the Exchange to
receive certificates representing ASPI Common Stock until such holder surrenders
such Certificate as provided in Section 1.04 hereof. Upon such surrender, there
shall be paid by ASPI to the person in whose name certificates representing
shares of ASPI Common Stock shall be issued pursuant to the terms of this
Article I (i) at the time of the surrender of such Certificate, the amount of
any dividends and other distributions theretofore paid with respect to that
number of whole shares of such ASPI Common Stock represented by such surrendered
Certificate pursuant to the terms of this Article I, which dividends or other
distributions had a record date on or after the Effective Time and a payment
date prior to such surrender and (ii) at the appropriate payment date, the
amount of dividends and other distributions payable with respect to that number
of whole shares of ASPI Common Stock represented by such surrendered Certificate
pursuant to the terms of this Article I, which dividends or other distributions
have a record date on or after the Effective Time and a payment date subsequent
to such surrender.
ARTICLE II
THE CLOSING
----------------
SECTION 2.01. CLOSING.
Unless this Agreement shall have been terminated and the transactions
herein contemplated shall have been abandoned pursuant to Article VIII, and
subject to the satisfaction or waiver of the conditions set forth in Article
VII, the closing of the Exchange (the "Closing") shall take place as soon as
reasonably practicable (but in no event on written notice of less than two (2)
business days) after all of the conditions set forth in Article VII are
satisfied or, to the extent permitted thereunder, waived, at the office of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such
other time and place as may be agreed to in writing by the parties hereto (the
date of such Closing being referred to herein as the "Closing Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ASPI
-----------------------------------------
Except as set forth in the applicable section of the disclosure
schedule delivered by ASPI to Acquiree prior to the execution of this Agreement
(the "ASPI Disclosure Schedule"), ASPI represents and warrants to Acquiree as
follows:
SECTION 3.01. ORGANIZATION OF ASPI; AUTHORITY.
ASPI is an Entity duly organized, validly existing and in good standing
under the laws of the State of Delaware. ASPI has all requisite corporate power
and corporate authority to enter into the Transaction Documents to which it is a
party, to consummate the transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its business. Subject to the
receipt of stockholder approval, the execution, delivery and performance by ASPI
of the Transaction Documents to which it is a party and the consummation of the
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transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of ASPI, including, without limitation
the approval of the board of directors of ASPI. The Transaction Documents have
been duly executed and delivered by each of ASPI and, assuming that the
Transaction Documents constitute a valid and binding obligation of the other
parties thereto, constitute a valid and binding obligation of ASPI, enforceable
against ASPI in accordance with its terms. ASPI is duly qualified or licensed to
do business as a foreign Entity and is in good standing in each jurisdiction in
which the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except where the failure to
obtain such qualification or license would not, individually or in the
aggregate, have a ASPI Material Adverse Effect. ASPI has heretofore delivered or
made available to Acquiree complete and correct copies of the certificate of
incorporation and by-laws of ASPI, the minute books and stock transfer records
of ASPI, as in effect as of the date of this Agreement. ASPI is not in violation
of its organizational documents.
SECTION 3.02. CAPITALIZATION.
The authorized capital stock of ASPI consists of 100,000,000 shares of
ASPI Common Stock, of which 13,879,655 shares are outstanding on the date
hereof. No other shares of any other class or series of ASPI Common Stock or
securities exercisable or convertible into or exchangeable for ASPI Common Stock
("ASPI Common Stock Equivalents") are authorized, issued or outstanding. The
outstanding shares of ASPI Common Stock have been duly authorized and validly
issued and are fully paid and nonassessable and were not issued in violation of,
and are not subject to, any preemptive, subscription or similar rights. To
ASPI's knowledge, none of the outstanding shares of ASPI Common Stock was issued
in violation of any Law, including without limitation, federal and state
securities laws. There are no outstanding warrants, options, subscriptions,
calls, rights, agreements, convertible or exchangeable securities or other
commitments or arrangements relating to the issuance, sale, purchase, return or
redemption, and, to ASPI's knowledge, voting or transfer of any shares, whether
issued or unissued, of ASPI Common Stock, ASPI Common Stock Equivalents or other
securities of ASPI. On the Closing Date, the shares of ASPI Common Stock for
which shares of Acquiree Common Stock shall be exchanged in the Exchange will
have been duly authorized and, when issued and delivered in accordance with this
Agreement, such shares of ASPI Common Stock, will be validly issued, fully paid
and nonassessable.
SECTION 3.03. NO VIOLATION; CONSENTS AND APPROVALS.
The execution and delivery by ASPI of the Transaction Documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not, conflict with or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) the terms and conditions
or provisions of the certificate of incorporation or by-laws of ASPI or any ASPI
Subsidiary, (b) any Law applicable to ASPI or any ASPI Subsidiary or the
property or assets of ASPI or any ASPI Subsidiary, or (c) give rise to any right
of termination, cancellation or acceleration under, or result in the creation of
any Lien upon any of the properties of ASPI or any ASPI Subsidiary under any
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Contract to which ASPI or any ASPI Subsidiary is a party or by which ASPI or any
ASPI Subsidiary or any assets of ASPI or any ASPI Subsidiary may be bound,
except, in the case of clauses (b) and (c), for such conflicts, violations or
defaults which are set forth in Section 3.04 of the ASPI Disclosure Schedule and
as to which requisite waivers or consents will have been obtained prior to the
Closing or which, individually or in the aggregate, would not have a ASPI
Material Adverse Effect. No Governmental Approval is required to be obtained or
made by or with respect to ASPI or any ASPI Subsidiary in connection with the
execution and delivery of this Agreement or the consummation by ASPI of the
transactions contemplated hereby.
SECTION 3.04. LITIGATION; COMPLIANCE WITH LAWS.
(a) There are: (i) no claims, actions, suits, investigations or
proceedings pending or, to the knowledge of ASPI, threatened against, relating
to or affecting ASPI or the ASPI Subsidiaries, the business, the assets, or any
employee, officer, director, stockholder, or independent contractor of ASPI or
the ASPI Subsidiaries in their capacities as such, and (ii) no orders of any
Governmental Entity or arbitrator outstanding against ASPI or the ASPI
Subsidiaries, the business, the assets, or any employee, officer, director,
stockholder, or independent contractor of ASPI or the ASPI Subsidiaries in their
capacities as such, or that could prevent or enjoin, or delay in any respect,
consummation of the transactions contemplated hereby.
(b) ASPI and the ASPI Subsidiaries have complied and are in compliance
in all material respects with all Laws applicable to ASPI, any Subsidiary of
ASPI, its business or its assets. Neither ASPI nor the ASPI Subsidiaries has
received notice from any Governmental Entity or other Person of any material
violation of Law applicable to ASPI, any of the ASPI Subsidiaries, their
business or their assets. ASPI and the ASPI Subsidiaries have obtained and hold
all required Licenses (all of which are in full force and effect) from all
Government Entities applicable to ASPI, the ASPI Subsidiaries, their business or
their assets. No violations are or have been recorded in respect of any such
License and no proceeding is pending, or, to the knowledge of ASPI, threatened
to revoke or limit any such License.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACQUIREE
------------------------------------------------
Except as set forth in the applicable section of the disclosure
schedule delivered by Acquiree to ASPI prior to the execution of this Agreement
(the "Acquiree Disclosure Schedule"), Acquiree represents and warrants to ASPI
as follows:
SECTION 4.01. ORGANIZATION OF ACQUIREE; AUTHORITY.
Acquiree is a corporation duly organized, validly existing and in good
standing under the laws of the Hong Kong Special Administrative Region, The
People's Republic of China and has all requisite corporate power and corporate
authority to enter into the Transaction Documents, to consummate the
transactions contemplated hereby and thereby, to own, lease and operate its
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properties and to conduct its business. Subject to the receipt of shares holder
approval by Acquiree holders, the execution, delivery and performance by
Acquiree of the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of Acquiree, including, without limitation, the
approval of the board of directors of Acquiree. The Transaction Documents have
been duly executed and delivered by Acquiree and, assuming that the Transaction
Documents constitute a valid and binding obligation of Acquiree. Acquiree is
duly qualified or licensed to do business as a foreign Entity and are in good
standing in each jurisdiction in which the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to obtain such qualification or license
would not, individually or in the aggregate, have a Acquiree Material Adverse
Effect on Acquiree. Acquiree has herewith delivered or made available to ASPI
complete and correct copies of the articles of organization and conversion to a
corporation and by-laws of Acquiree, the minute books and stock transfer records
of Acquiree, as in effect as of the date of this Agreement. Acquiree is not in
violation of its organizational documents.
SECTION 4.02. CAPITALIZATION.
(a) The authorized and outstanding shares of Acquiree are set forth in
this Section 4.02(a) as the Acquiree Disclosure Schedule (the "Acquiree
shares"). All of the outstanding shares of the Acquiree are validly issued,
fully paid and non-assessable. To Acquiree's knowledge, none of the outstanding
shares of Acquiree or other securities of Acquiree was issued in violation of
any Law, including, without limitation, state and federal securities laws. There
are no Liens on or with respect to any outstanding shares of Acquiree.
(b) Except as shown in Section 4.02 (a) of Acquiree's disclosure
schedule. There are no outstanding: (i) securities convertible into or
exchangeable for Acquiree shares; (ii) options, warrants or other rights to
purchase or subscribe for Acquiree shares; or (iii) contracts, commitments,
agreements, understandings or arrangements of any kind relating to the issuance
of any Acquiree shares, any such convertible or exchangeable securities or any
such options, warrants or rights. There is no outstanding right, option or other
agreement of any kind to purchase or otherwise to receive from Acquiree, or any
stockholder of Acquiree, any ownership shares in Acquiree, and there is no
outstanding right or security of any kind convertible into such ownership
shares. To Acquiree's knowledge, there are no voting trusts, proxies or other
similar agreements or understandings with respect to the shares of Acquiree.
There are no obligations, contingent or otherwise, of Acquiree to repurchase,
redeem or otherwise acquire any shares of Acquiree or to provide funds to or
make any investment (in the form of a loan, capital contribution or otherwise)
in any other Person. There are no accrued and unpaid dividends with respect to
any outstanding shares of Acquiree.
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SECTION 4.03. NO VIOLATION; CONSENTS AND APPROVALS.
The execution and delivery by Acquiree of the Transaction Documents
does not, and the consummation of the transactions contemplated hereby and
thereby and compliance with the terms hereof and thereof will not conflict with,
or result in any violation of or default (or an event which, with notice or
lapse of time or both, would constitute a default) under, (a) the terms and
conditions or provisions of the articles of incorporation or by-laws of
Acquiree, (b) any Laws applicable to Acquiree or the property or assets of
Acquiree, or (c) give rise to any right of termination, cancellation or
acceleration under, or result in the creation of any Lien upon any of the
properties of Acquiree under, any Contracts to which Acquiree is a party or by
which Acquiree or any of its assets may be bound, except, in the case of clauses
(b) and (c), for such conflicts, violations or defaults as to which requisite
waivers or consents will have been obtained prior to the Closing or which,
individually or in the aggregate, would not have an Acquiree Material Adverse
Effect. No Governmental Approval is required to be obtained or made by or with
respect to Acquiree or any Acquiree Subsidiary in connection with the execution
and delivery of this Agreement or the consummation by Acquiree of the
transactions contemplated hereby, except where the failure to obtain such
Governmental Approval would not, individually or in the aggregate, have an
Material Adverse Effect on Acquiree.
SECTION 4.04. LITIGATION; COMPLIANCE WITH LAWS.
(a) Except as would not have a Material Adverse Effect on Acquiree,
there are: (i) no claims, actions, suits, investigations or proceedings pending
or, to the knowledge of Acquiree, threatened against, relating to or affecting
Acquiree, its business, its assets, or any employee, officer, director,
stockholder, or independent contractor of Acquiree in their capacities as such,
and (ii) no orders of any Governmental Entity or arbitrator are outstanding
against Acquiree, its business, its assets, or any employee, officer, director,
stockholder, or independent contractor of Acquiree in their capacities as such,
or that could prevent or enjoin, or delay in any respect, consummation of the
transactions contemplated hereby. The Acquiree Disclosure Schedule of Section
4.02(a) includes a description of all claims, actions, suits, investigations or
proceedings involving Acquiree, its business, its assets, or any employee,
officer, director, stockholder or independent contractor of Acquiree in their
capacities as such.
(b) Except as would not have an Acquiree Material Adverse Effect,
Acquiree has complied and is in compliance in all material respects with all
Laws applicable to Acquiree, its business or its assets. Acquiree has not
received notice from any Governmental Entity or other Person of any material
violation of Law applicable to it, its business or its assets. Acquiree has
obtained and holds all required Licenses (all of which are in full force and
effect) from all Government Entities applicable to it, its business or its
assets. No violations are or have been recorded in respect of any such License
and no proceeding is pending, or, to the knowledge of Acquiree threatened to
revoke or limit any such License.
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SECTION 4.05 FINANCIAL STATEMENTS.
Acquiree shall have provided, prior to closing hereunder, financial
statements in accordance with federal income tax accounting consistently
applied, complete and true and accurate in all respects, disclosing all
liabilities, and assets of Acquiree and shall provide all books and records
necessary to complete audits in accordance with SEC Rules and Regulations.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF
BUSINESS PENDING THE EXCHANGE
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SECTION 5.01. CONDUCT OF THE BUSINESS PENDING THE EXCHANGE.
(a) During the period from the date of this Agreement and continuing
until the Effective Time, ASPI agrees as to itself and the ASPI Subsidiaries,
that ASPI shall not, and shall cause the ASPI Subsidiaries not to, engage in any
business whatsoever other than in connection with the consummation of the
transactions contemplated by this Agreement, and shall use commercially
reasonable efforts to preserve intact its business and assets, maintain its
assets in good operating condition and repair (ordinary wear and tear excepted),
retain the services of its officers, employees and independent contractors and
use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, Acquiree consents
otherwise in writing.
(b) During the period from the date of this Agreement and continuing
until the Effective Time, Acquiree agrees that, other than in connection with
the consummation of the transactions contemplated hereby, it shall carry on its
business only in the ordinary course of business consistent with past practice,
use commercially reasonable efforts to preserve intact its business and assets
and use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, ASPI consents
otherwise in writing; provided that Acquiree may take any and all of the actions
listed in the Acquiree Disclosure Schedules at any time prior to or after the
date of this Agreement without the consent of ASPI. Additionally, during the
period from the date of this Agreement and continuing until the Effective Time,
Acquiree agrees that, other than in connection with the consummation of the
transaction contemplated hereby, to carry on its business only in the ordinary
course of business consistent with past practice, use commercially reasonable
efforts to preserve intact its business and assets and use reasonable commercial
efforts to keep in full force and effect liability insurance and bonds
comparable in amount and scope of coverage to that currently maintained with
respect to its business, unless, in any case, ASPI consents otherwise in
writing; provided that Acquiree may take any and all of the actions listed in
the Acquiree Disclosure Schedule at any time prior to or after the date of this
Agreement without the consent of ASPI. During the period from the date of this
Agreement and continuing until the Effective Time, Acquiree and ASPI agrees as
to itself and, with respect to ASPI, the ASPI Subsidiaries, respectively, that
except as expressly contemplated or permitted by this Agreement, as disclosed in
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the Acquiree's Disclosure Schedule or the ASPI Disclosure Schedule, as
applicable, or to the extent that the other party shall otherwise consent in
writing:
(1) It shall not amend or propose to amend its certificate of
incorporation or by-laws or equivalent organizational documents except
as contemplated in this Agreement.
(2) It shall not, nor in the case of ASPI shall it permit the
ASPI Subsidiaries to, issue, deliver, sell, redeem, acquire, authorize
or propose to issue, deliver, sell, redeem, acquire or authorize, any
shares of its capital stock of any class or any securities convertible
into, or any rights, warrants or options to acquire, any such shares or
convertible securities or other ownership of equity, provided that: (1)
ASPI shall be permitted to issue the shares of ASPI Common Stock to be
issued to Acquiree Stockholders hereunder, and (2) each party shall be
permitted to issue shares of its common stock pursuant to the exercise
of stock options, warrants and other convertible securities outstanding
as of the date hereof and listed on the Acquiree Disclosure Schedule or
the ASPI Disclosure Schedule, as the case may be, (3) up to 21,500,000
shares may be issued in conjunction with financing for this transaction
and for payment of fees related hereto, and (4) Acquiree shall be
permitted to issue the shares of ASPI common stock to the persons and
in the following amounts as shown on attached STOCK ISSUANCE SCHEDULE:
(3) It shall not, nor in the case of ASPI shall it permit any
of the ASPI Subsidiaries to, nor shall it propose to: (i) declare, set
aside, make or pay any dividend or other distribution, payable in cash,
stock, property or otherwise, with respect to any of its capital stock
or (ii) except with respect to the Reverse Stock Split, reclassify,
combine, split, subdivide or redeem, purchase or otherwise acquire,
directly or indirectly, any of its capital stock.
(4) Other than dispositions in the ordinary course of business
consistent with past practice which would not cause a ASPI Material
Adverse Effect or a Acquiree Material Adverse Effect (as applicable),
individually or in the aggregate, to it and its subsidiaries, taken as
a whole, it shall not, nor shall it permit any of its subsidiaries to,
sell, lease, encumber or otherwise dispose of, or agree to sell, lease
(whether such lease is an operating or capital lease), encumber or
otherwise dispose of its assets.
(5) It shall promptly advise the other party hereto in writing
of any change in the condition (financial or otherwise), operations or
properties, businesses or business prospects of such party or any of
its subsidiaries which would result in a ASPI Material Adverse Effect
or Acquiree Material Adverse Effect, as the case may be.
(6) It shall not permit to occur, nor in the case of Acquiree
shall it permit ASPI to allow to occur, any (1) change in accounting
principles, methods or practices, investment practices, claims, payment
and processing practices or policies regarding intercompany
transactions, (2) incurrence of Indebtedness or any commitment to incur
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Indebtedness, any incurrence of a contingent liability, Contingent
Obligation or other liability of any type, except for, with respect to
Acquiree, other than obligations related to the Exchange of Inventory
in the ordinary course of business consistent with past practices, (3)
cancellation of any debt or waiver or release of any contract, right or
claim, except for cancellations, waivers and releases in the ordinary
course of business consistent with its past practice which do not
exceed $50,000 in the aggregate, (4) amendment, termination or
revocation of, or a failure to perform obligations or the occurrence of
any default under, (Y) any contract or agreement (including, without
limitation, leases) to which it is or, as of June 30, 2010, was a
party, other than in the ordinary course of business consistent with
past practice, or (Z) any License, (5) execution of termination,
severance or similar agreements with any of its officers, directors,
employees, agents or independent contractors or (6) entering into any
leases of real property or agreement to acquire real property.
SECTION 5.02. NO ACTION.
During the period from the date of this Agreement and continuing until
the Effective Time, Acquiree and ASPI agrees as to itself and, with respect to
ASPI, the ASPI Subsidiaries, respectively, that it shall not, and ASPI shall not
permit any of the ASPI Subsidiaries to, take or agree or commit to take any
action, (i) that is reasonably likely to make any of its representations or
warranties hereunder inaccurate; or (ii) that is prohibited pursuant to the
provisions of this Article V.
ARTICLE VI
ADDITIONAL AGREEMENTS
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SECTION 6.01. ACCESS TO INFORMATION.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, each party shall give the other party and its
respective counsel, accountants, representatives and agents, and with respect to
Acquiree it shall provide to ASPI with respect to Acquiree, full access, upon
reasonable notice and during normal business hours, to such party's and
Acquiree's facilities and the financial, legal, accounting and other
representatives of such party and Acquiree with knowledge of the business and
the assets of such party and Acquiree and, upon reasonable notice, shall be
furnished all relevant documents, records and other information concerning the
business, finances and properties of such party and its subsidiaries and
Acquiree that the other party and its respective counsel, accountants,
representatives and agents, may reasonably request. No investigation pursuant to
this Section 6.02 shall affect or be deemed to modify any of the representations
or warranties hereunder or the condition to the obligations of the parties to
consummate the Exchange; it being understood that the investigation will be made
for the purposes among others of the board of directors of each party
determining in its good faith reasonable business judgment the accuracy of the
representations and warranties of the other party. In the event of the
termination of this Agreement, each party, if so requested by the other party,
will return or destroy promptly every document furnished to it by or on behalf
of the other party in connection with the transactions contemplated hereby,
whether so obtained before or after the execution of this Agreement, and any
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copies thereof (except for copies of documents publicly available) which may
have been made, and will use reasonable efforts to cause its representatives and
any representatives of financial institutions and investors and others to whom
such documents were furnished promptly to return or destroy such documents and
any copies thereof any of them may have made.
SECTION 6.02. NO SHOP; EXCHANGE PROPOSALS.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, neither Acquiree nor ASPI shall, nor shall they
authorize or permit any of their respective officers, directors or employees or
Subsidiaries or Acquiree subsidiary employees or any investment banker,
financial advisor, attorney, accountant or other representative retained by it
to, solicit, initiate or encourage (including by way of furnishing information),
or take any other action to facilitate, any inquiries or the making of any
proposal which constitutes, or may reasonably be expected to lead to, any
Takeover Proposal (as hereinafter defined), or negotiate with respect to, agree
to or endorse any Takeover Proposal (except in any case if the board of
directors or special committee of ASPI or Acquiree, as the case may be,
determines in good faith, based upon the written opinion of its outside legal
counsel, that the failure to do so would constitute a breach of the fiduciary
duties of the ASPI' or Acquiree's board of directors or special committee, as
the case may be, to its stockholders under applicable law). Acquiree shall
promptly advise ASPI and ASPI shall promptly advise Acquiree, as the case may
be, orally and in writing of any such inquiries or proposals and shall also
promptly advise ASPI or Acquiree, as the case may be, of any developments or
changes regarding such inquiries or proposals. Acquiree and ASPI shall
immediately cease and cause to be terminated any existing discussions or
negotiations with any persons (other than Acquiree, ASPI and *ExcSub/Acquiree*)
conducted heretofore with respect to any Takeover Proposal. Acquiree and ASPI
agree not to release (by waiver or otherwise) any third party from the
provisions of any confidentiality or standstill agreement to which Acquiree or
ASPI is a party.
SECTION 6.03. LEGAL CONDITIONS TO EXCHANGE; REASONABLE EFFORTS.
Acquiree, and ASPI shall take all reasonable actions necessary to
comply promptly with all legal requirements which may be imposed on itself with
respect to the Exchange and will promptly cooperate with and furnish information
to each other in connection with any such requirements imposed upon any of them
or any of their Subsidiaries in connection with the Exchange. Acquiree and ASPI
will, and ASPI will cause the ASPI Subsidiaries to, take all reasonable actions
necessary to obtain (and will cooperate with each other in obtaining) any
consent, authorization, order or approval of, or any exemption by, any
Governmental Entity or other public or private third party, required to be
obtained or made by Acquiree, ASPI or any of the ASPI Subsidiaries in connection
with the Exchange or the taking of any action contemplated thereby or by this
Agreement.
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SECTION 6.04. CERTAIN FILINGS.
Each party shall cooperate with the other in (a) connection with the
preparation of an 8-K, (b) determining whether any action by or in respect of,
or filing with, any governmental body, agency, official or authority is
required, or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection with the
consummation of the transactions contemplated by this Agreement and (c) seeking
any such actions, consents, approvals or waivers or making any such filings,
furnishing information required in connection therewith or with the 8-K and
seeking timely to obtain any such actions, consents, approvals or waivers. Each
party shall consult with the other in connection with the foregoing and shall
use all reasonable commercial efforts to take any steps as may be necessary in
order to obtain any consents, approvals, permits or authorizations required in
connection with the Exchange.
SECTION 6.05. PUBLIC ANNOUNCEMENTS AND FILINGS.
Each party shall give the other a reasonable opportunity to comment
upon, and, unless disclosure is required, in the opinion of counsel, by
applicable law, approve (which approval shall not be unreasonably withheld), all
press releases or other public communications of any sort relating to this
Agreement or the transactions contemplated hereby.
SECTION 6.06. TAX MATTERS.
(a) No representation is made that this is a non-taxable transaction.
(b) Acquiree shall prepare and file on a timely basis all Tax Returns
which are due to be filed with respect to Acquiree (giving effect to any
extension of time) prior to the Closing Date including any 2009 short year
return as may be necessary for subsidiary. ASPI shall be responsible for the
preparation and filing of all Tax Returns which are due to be filed (giving
effect to any extension of time) after the Closing Date, but Acquiree shall use
its best efforts to conduct its affairs such that any Tax Returns due after the
Closing Date can be filed on a timely basis.
(c) From the date hereof until the Effective Time or the earlier
termination of this Agreement, without the prior written consent of the other
party or if required in the opinion of counsel, neither ASPI nor Acquiree,
shall, make or change any election, change an annual accounting period, adopt or
change any accounting method, file any amended Tax Return, enter into any
closing agreement, settle any Tax claim or assessment relating to it, surrender
any right to claim a refund of Taxes, consent to any extension or waiver of the
limitation period applicable to any Tax claim or assessment relating to it, or
take any other action relating to the filing of any Tax Return or the payment of
any Tax.
SECTION 6.07. SUPPLEMENTS TO SCHEDULES.
Prior to the Closing, Acquiree will supplement or amend its disclosure
schedule with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
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forth or described in such disclosure schedule. No supplement to or amendment of
the disclosure schedule made pursuant to this Section 6.07 shall be deemed to
cure any breach of any representation or warranty made in this Agreement unless
the other parties hereto specifically agree thereto in writing. Prior to the
Closing, ASPI may supplement or amend its disclosure schedule with respect to
any matter which, if existing or occurring at the date of this Agreement, would
have been required to be set forth or described in such disclosure schedule. No
supplement to or amendment of the disclosure schedule made pursuant to this
Section 6.07 shall be deemed to cure any breach of any representation or
warranty made in this Agreement unless the other parties hereto specifically
agree thereto in writing.
ARTICLE VII
CONDITIONS OF THE EXCHANGE
------------------------------------
SECTION 7.01. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE EXCHANGE.
The respective obligations of each party to effect the Exchange and the
other transactions contemplated herein shall be subject to the satisfaction at
or prior to the Effective Time of the following conditions, any or all of which
may be waived, in whole or in part to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been duly adopted
and agreed by the holders of 100% of the outstanding shares of Acquiree, through
an Exchange Agreement, Consent and Representations signed by each shares holder
of Acquiree.
(b) No Injunctions or Restraints. No governmental authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, execution order, decree, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
which materially restricts, prevents or prohibits consummation of the Exchange
or any transaction contemplated by this Agreement; provided, however, that the
parties shall use their reasonable commercial efforts to cause any such decree,
judgment, injunction or other order to be vacated or lifted.
SECTION 7.02. ADDITIONAL CONDITIONS OF OBLIGATIONS OF ASPI.
The obligations of ASPI and Acquiree to effect the Exchange and the
other transactions contemplated by this Agreement are also subject to the
satisfaction at or prior to the Closing Date of the following additional
conditions unless waived by ASPI:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Acquiree set forth in this Agreement shall be true and correct in all
material respects (except for those representations and warranties qualified by
materiality, which shall be true and correct in all respects) as of the date of
this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement.
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(b) PERFORMANCE OF OBLIGATIONS OF ACQUIREE. Acquiree shall have
performed in all material respects all conditions, covenants, agreements and
obligations required to be performed by it under this Agreement at or prior to
the Closing Date.
(c) NO MATERIAL ADVERSE CHANGE TO ACQUIREE. From the date hereof
through and including the Effective Time, no event shall have occurred which
would have an Acquiree Material Adverse Effect.
(d) THIRD PARTY CONSENTS. Acquiree shall have obtained all consents and
approvals, required to be obtained prior to or at the Closing Date, from third
parties or governmental and regulatory authorities in connection with the
execution, delivery and performance by Acquiree of this Agreement and the
consummation of the transactions contemplated hereby.
(e) NO GOVERNMENTAL ORDER OR OTHER PROCEEDING OR LITIGATION. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(f) DELIVERIES. At the Closing, Acquiree shall have delivered to ASPI
or ASPI shall have otherwise obtained:
(1) a certificate, dated the Closing Date, signed on behalf of
Acquiree by the Chief Executive Officer of Acquiree, certifying as to
the fulfillment of the conditions specified in subsections (a), (b) and
(c) of this Section 7.02;
(2) the consents set forth in Section 4.04 of the Acquiree
Disclosure Schedule;
(3) true, correct and complete copies of (1) the certificate
of organization or other charter document, as amended to date, of
Acquiree as filed with, the Secretary of State or other appropriate
official of the state or other jurisdiction of organization of
Acquiree, (2) the by-laws or other similar organizational document of
Acquiree, and (3) resolutions duly and validly adopted by the Board of
Directors and the stockholders of Acquiree evidencing the authorization
of the execution and delivery of this Agreement, the other Transaction
Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby, in each case, accompanied
by a certificate of the Secretary or Assistant Secretary of Acquiree,
dated as of the Closing Date, stating that no amendments have been made
thereto from the date thereof through the Closing Date; and
(4) WEBSITE/DOMAIN/TRADE NAME. An agreement between any owners
of the Domain and ASPI whereby, contemporaneously with the Closing for
the note consideration described herein, ASPI shall acquire from
Shareholders all rights to web domain and web name, and trade name
"Prestige Prime Office" in both English and Chinese, by proper
documents with representation and warranties.
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(g) AUDITED FINANCIAL STATEMENTS. Audited financial statements of
Acquiree for periods 2009 and March 31, 2010 shall have been delivered to ASPI
at or prior to Closing.
(h) ACQUIREE'S INDEBTEDNESS. All outstanding Indebtedness of Acquiree
shall have been fully paid or re-negotiated in substance reasonably satisfactory
to ASPI and Acquiree lenders.
SECTION 7.03. ADDITIONAL CONDITIONS OF OBLIGATIONS OF ACQUIREE.
The obligation of Acquiree to effect the Exchange and the other
transactions contemplated by this Agreement is also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by Acquiree:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of ASPI set forth in this Agreement shall be true and correct in all material
respects (except for those representations and warranties qualified by
materiality) as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, except as otherwise contemplated by
this Agreement.
(b) PERFORMANCE OF OBLIGATIONS OF ASPI. ASPI shall have performed in
all material respects all conditions, covenants, agreements and obligations
required to be performed by them under this Agreement at or prior to the Closing
Date.
(c) NO MATERIAL ADVERSE CHANGE TO ASPI. From the date hereof through
and including the Effective Time, no event shall have occurred which would have
a ASPI Material Adverse Effect.
(d) NO GOVERNMENTAL ORDER OR OTHER PROCEEDING OR LITIGATION. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(e) DELIVERIES. At the Closing, ASPI shall have delivered to Acquiree:
(1) certificates, dated the Closing Date, signed on behalf of
ASPI by the President of ASPI, certifying as to the fulfillment of the
conditions specified in subsections (a), (b) and (c) of this Section
7.03;
(2) the consents set forth in Section 3.04 of the ASPI
Disclosure Schedule;
(3) true, correct and complete copies of (1) the certificate
of incorporation or other charter document, as amended to date, of
ASPI, certified as of a recent date by the Secretary of State or other
appropriate official of the state or other jurisdiction of
incorporation of such company, (2) the by-laws or other similar
organizational document of ASPI, and (3) resolutions duly and validly
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adopted by the Board of Directors of ASPI evidencing the authorization
of the execution and delivery of this Agreement, the other Transaction
Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby, in each case, accompanied
by a certificate of the Secretary of ASPI, dated as of the Closing
Date, stating that no amendments have been made thereto from the date
thereof through the Closing Date; and
(4) the share certificates issued pro rata in the names of
Shareholders of Acquiree, in proper amounts
ARTICLE VIII
TERMINATION
-----------------------
SECTION 8.01. TERMINATION.
This Agreement may be terminated at any time prior to the Effective
Time, by ASPI or Acquiree as set forth below:
(a) by mutual consent of the boards of directors of ASPI and Acquiree;
or
(b) by ASPI upon written notice to Acquiree, if: (A) any condition to
the obligation of ASPI to close contained in Article VII hereof has not been
satisfied by 60 days after date hereof June 30, 2010 (the "End Date") (unless
such failure is the result of ASPI' breach of any of its representations,
warranties, covenants or agreements contained herein) or (B) the ASPI
stockholders do not approve the Exchange; or
(c) by Acquiree upon written notice to ASPI, if: (A) any condition to
the obligation of Acquiree to close contained in Article VII hereof has not been
satisfied by the End Date (unless such failure is the result of Acquiree's
breach of any of its representations, warranties, covenants or agreements
contained herein); or (B) the Acquiree shares holders do not approve the
Exchange; or
(d) by ASPI if the board of directors or special committee of ASPI
determines in good faith, based upon the written opinion of its outside legal
counsel, that the failure to terminate this Agreement would constitute a breach
of the fiduciary duties of the ASPI board of directors or special committee to
the ASPI stockholders under applicable law.
SECTION 8.02. FEES, COSTS AND EXPENSES.
Whether or not the Exchange is consummated, all legal costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by ASPI.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
--------------------------------------------------
None of the representations and warranties of the parties set forth in this
Agreement shall survive the Closing. Following the Closing Date with respect to
any particular representation or warranty, no party hereto shall have any
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further liability with respect to such representation and warranty. None of the
covenants, agreements and obligations of the parties hereto shall survive the
Closing.
ARTICLE X
MISCELLANEOUS
-------------------------
SECTION 10.01. NOTICES.
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopy, telex or similar writing) and shall be
deemed given or made as of the date delivered, if delivered personally or by
telecopy (provided that delivery by telecopy shall be followed by delivery of an
additional copy personally, by mail or overnight courier), one day after being
delivered by overnight courier or three days after being mailed by registered or
certified mail (postage prepaid, return receipt requested), to the parties at
the following addresses:
if to ASPI to:
ASPI, Inc.
e-mail: ▇▇▇_▇▇▇▇@▇▇▇▇▇.▇▇▇.▇▇
with a copy to (which shall not constitute notice):
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Acquiree to:
Prestige Prime Office, Ltd.
e-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other address or telex or telecopy number as such party may hereafter
specify for the purpose by notice to the other party hereto.
SECTION 10.02. AMENDMENT; WAIVER.
This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided that
the same are in writing and signed by or on behalf of the parties hereto.
SECTION 10.03. SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party shall assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the written consent of the
other party hereto.
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SECTION 10.04. GOVERNING LAW.
This Agreement shall be construed in accordance with and governed by
the law of the State of Delaware without regard to principles of conflict of
laws.
SECTION 10.05. WAIVER OF JURY TRIAL.
Each party hereto hereby irrevocably and unconditionally waives any
rights to a trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
SECTION 10.06. CONSENT TO JURISDICTION.
Each of the Parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of any court of the State of Delaware or any federal
court sitting in Delaware for purposes of any suit, action or other proceeding
arising out of this Agreement and the Transaction Documents (and agrees not to
commence any action, suit or proceedings relating hereto or thereto except in
such courts). Each of the Parties agrees that service of any process, summons,
notice or document pursuant to the laws of the State of Delaware and on the
individuals designated in Section 10.01 shall be effective service of process
for any action, suit or proceeding brought against it in any such court.
SECTION 10.07. COUNTERPARTS; EFFECTIVENESS.
Facsimile transmissions of any executed original document and/or
retransmission of any executed facsimile transmission shall be deemed to be the
same as the delivery of an executed original. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.08. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF
OWNERSHIP.
Except as expressly provided herein, this Agreement (including the
documents and the instruments referred to herein) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. Except as
expressly provided herein, this Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. The
parties hereby acknowledge that no person shall have the right to acquire or
shall be deemed to have acquired shares of common stock of the other party
pursuant to the Exchange until consummation thereof.
SECTION 10.09. HEADINGS.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
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SECTION 10.10. NO STRICT CONSTRUCTION.
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
SECTION 10.11. SEVERABILITY.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
ARTICLE XI
DEFINITIONS
-----------------------
"Affiliate" shall mean (a) with respect to an individual, any member of
such individual's family including lineal ancestors and descendents; (b) with
respect to an entity, any officer, director, stockholder, partner, manager,
investor or holder of an ownership shares of or in such entity or of or in any
Affiliate of such entity; and (c) with respect to a Person, any Person which
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with such Person or entity.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Acquiree" shall have the meaning set forth in the preamble to this
Agreement.
" "Acquiree Common Stock" shall have the meaning set forth in the
recitals to this Agreement, and elsewhere in Section 4.02"Acquiree Material
Adverse Effect" shall mean an event or change, individually or in the aggregate
with other events or changes, that could reasonably be expected to have a
material adverse effect on (a) the business, properties, prospects, condition
(financial or otherwise) or results of operations of Acquiree taken as a whole
(other than those events, changes or effects resulting from general economic
conditions or the industry in which Acquiree is engaged generally) or (b) the
ability of Acquiree to consummate the transactions contemplated hereby.
"Acquiree Shareholders" mean the holders of common shares in Acquiree.
"Certificates" shall have the meaning set forth in Section 1. of this
Agreement.
"ASPI" shall have the meaning set forth in the preamble to this
Agreement.
"ASPI" Common Stock" shall have the meaning set forth in the recitals
to this agreement.
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"ASPI" Common Stock Equivalents" shall have the meaning set forth in
Section 3.02 of this Agreement.
"ASPI" Material Adverse Effect" shall mean an event or change,
individually, or in the aggregate with other events or changes, that could
reasonably be expected to have a material adverse effect on (a) the business,
properties, prospects, condition (financial or otherwise) or results of
operations of ASPI and the ASPI Subsidiaries taken as a whole (other than those
events, changes or effects resulting from general economic conditions or the
industry in which ASPI is engaged generally) or (b) the ability of ASPI to
consummate the transactions contemplated hereby.
"Closing" shall have the meaning set forth in Section 2.01 of this
Agreement.
"Closing Date" shall have the meaning set forth in Section 2.01 of this
Agreement.
"Code" shall have the meaning set forth in the recitals of this
Agreement.
"Contingent Obligation" as to any Person shall mean the undrawn face
amount of any letters of credit issued for the account of such Person and shall
also mean any obligation of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness, leases, dividends, letters of credit or
other obligations ("Primary Obligations") of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such Primary Obligation or any property constituting direct or
indirect security therefore, (b) to advance or supply funds (i) for the purchase
or payment of any such Primary Obligation or (ii) to maintain working capital or
equity capital of the Primary Obligor or otherwise to maintain the financial
condition or solvency of the Primary Obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the obligee under
any such Primary Obligation of the ability of the Primary Obligor to make
payment of such Primary Obligation, or (d) otherwise to assure or hold harmless
the obligee under such Primary Obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.
"Contracts" shall mean all contracts, leases, subleases, notes, bonds,
mortgages, indentures, Permits and Licenses, non-competition agreements, joint
venture or partnership agreements, powers of attorney, purchase orders, and all
other agreements, arrangements and other instruments, in each case whether
written or oral, to which such Person is a party or by which any of them or any
of its assets are bound.
"Conversion Amount" shall mean an amount equal to 1/100th of 10,000,000
shares of ASPI Common Stock per 1% shares in Acquiree.
"Effective Time" shall be the date all conditions and performance
hereunder has been completed but no later than June 30, 2010.
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"End Date" shall have the meaning set forth in Section 8.01 of this
Agreement.
"Governmental Approval" shall mean the consent, approval, order or
authorization of, or registration, declaration or filing with any court,
administrative agency or commission or other Governmental Entity, authority or
instrumentality, domestic or foreign.
"Governmental Entity" means the government of the United States of
America, any other nation or any political subdivision thereof, whether foreign,
state or local, and any agency, authority, instrumentality, regulatory body,
court, tribunal, arbitrator, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Indebtedness" shall mean as to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the assets
of such Person and whether or not contingent, but without duplication: (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the Exchange of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not more than
120 days overdue or which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP); (e) every Capital Lease Obligation of such Person; (f) any
obligation of such Person to pay any discount, shares, fees, indemnities,
penalties, recourse, expenses or other amounts in connection with any sales by
such Person unless such sales are on a non-recourse basis (as to collectability)
of (i) accounts or general intangibles for money due or to become due, (ii)
chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables, whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of
defaulted receivables for collection and not as a financing arrangement; (g)
every obligation of such Person under any forward contract, futures contract,
swap, option or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements), the value of which is
dependent upon shares rates, currency exchange rates, commodities or other
indices (a "derivative contract"); (h) every obligation in respect of
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent that such Person is liable therefore as a
result of such Person's ownership shares in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide that
such Person is not liable therefore and such terms are enforceable under
applicable law; and (i) every Contingent Obligation of such Person with respect
to Indebtedness of another Person. Notwithstanding anything to the contrary in
this Agreement, the term "Indebtedness" expressly includes the following debts
and obligations of Acquiree:
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"Laws" shall mean all foreign, federal, state and local statutes, laws,
ordinances, regulations, rules, resolutions, orders, writs, injunctions,
judgments and decrees applicable to the specified Person and to the businesses
and assets thereof.
"License" shall mean any franchise, authorization, license, permit,
certificate of occupancy, easement, variance, exemption, certificate, consent or
approval of any Governmental Entity or other Person.
"Lien" shall mean any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind.
"Exchange" shall have the meaning set forth in the recitals of this
Agreement.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, limited liability company,
association, Entity, institution, entity, party, Governmental Entity or any
other juridical entity of any kind or nature whatsoever.
"Subsidiary" shall mean any Person in which another Person, directly or
indirectly, owns 50% of either the equity shares in or voting control of, such
Person.
"Takeover Proposal" shall mean any proposal for a tender or exchange
offer, Exchange, consolidation, sale of all or substantially all of such party's
assets, sale of in excess of fifteen percent of the shares of capital stock or
other business combination involving such party or any proposal or offer to
acquire in any manner a substantial equity shares (including any shares
exceeding fifteen percent of the equity outstanding) in, or all or substantially
all of the assets of, such party other than the transactions contemplated by
this Agreement.
"Taxes" means all federal, state, county, local, municipal, foreign and
other taxes, assessments, duties or similar charges of any kind whatsoever,
including all corporate franchise, income, gross receipts, occupation, windfall
profits, sales, use, ad valorem, value-added, profits, license, withholding,
payroll, employment, excise, premium, real property, personal property, customs,
net worth, capital gains, transfer, stamp, documentary, social security,
disability, environmental, alternative minimum, recapture and other taxes, and
including all shares, penalties and additions imposed with respect thereto,
whether disputed or not and including any obligations to indemnify or otherwise
assume or succeed to the Tax liability of any Person, and any liability in
respect of any Tax as a result of being a member of any affiliated, combined,
consolidated, unitary or similar group.
"Tax Return" means any report, return, statement, estimate,
informational return, declaration or other written information required to be
supplied to a taxing authority in connection with Taxes.
"Taxing Authority" means any domestic, foreign, federal, national,
state, county or municipal or other local government, any subdivision, agency,
commission or authority thereof, or any quasi-governmental body exercising tax
regulatory authority.
-24-
"Transaction Documents" shall mean this Agreement.
[Remainder of page intentionally left blank.]
-25-
IN WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be duly executed as of the day and year first above written.
ASPI, INC.
By: /s/ Look ▇▇▇▇ ▇▇▇▇
-------------------------------------------------
Name: LOOK ▇▇▇▇ ▇▇▇▇
Title: PRESIDENT
PRESTIGE PRIME OFFICE, LTD.
By: /s/ Yueng ▇▇▇▇▇ ▇▇▇▇
-------------------------------------------------
Name: YUENG ▇▇▇▇▇ ▇▇▇▇
Title: DIRECTOR
SHAREHOLDER OF PRESTIGE PRIME OFFICE, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ Hung
-------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ HUNG
-26-
SECTION 4.02(A) ACQUIREE DISCLOSURE SCHEDULES
(1) LIST OF ACQUIREES SHAREHOLDERS AND ISSUED AND OUTSTANDING SHARES
ACQUIREE SHAREHOLDER NUMBER OF DESCRIPTION OF ANY CLAIMS OR LIENS
SHARES ON ISSUED AND OUTSTANDING SHARES
-------------------- ---------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇ Hung 4,000,000 NONE
(2) LIST OF OUTSTANDING DESCRIPTION OF ALL CLAIMS, ACTIONS, SUITS,
INVESTIGATIONS OR PROCEEDINGS INVOLVING ACQUIREE, ITS BUSINESS, ITS ASSETS, OR
ANY EMPLOYEE, OFFICER, DIRECTOR, STOCKHOLDER OR INDEPENDENT CONTRACTOR OF
ACQUIREE
NONE.
SCHEDULE OF STOCK ISSUANCES TO PRESTIGE PRIME OFFICES, LTD.
PURSUANT TO SECTION 5.01(B)(2)
NAME NUMBER OF SHARES
---------------------------------- ----------------------
▇▇▇▇▇ ▇▇▇▇▇ Hung 60,000,000
