Attached files
| file | filename |
|---|---|
| 8-K - KAIBO FOODS Co Ltd | v199698_8k.htm |
| EX-99.1 - KAIBO FOODS Co Ltd | v199698_ex99-1.htm |
| EX-99.2 - KAIBO FOODS Co Ltd | v199698_ex99-2.htm |
AGREEMENT AND PLAN OF
REORGANIZATION
THIS AGREEMENT AND PLAN OF
REORGANIZATION (this “Agreement”) is dated as of October 21, 2010, and is by and
among Hong Kong Waibo International Limited (“Waibo”), and the undersigned
shareholders of Waibo (the “Waibo Shareholders”), CFO Consultants, Inc., a
Nevada corporation (the “Company”), and Orion Investment Inc. (the “Company
Principal Shareholder”). Waibo is a party to this Agreement solely to make
representations and warranties as set forth herein.
RECITALS
WHEREAS, the Waibo
Shareholders own, collectively, 100% of the issued and outstanding capital stock
of Waibo (the “Waibo Shares”), and the Waibo Shareholders desire to exchange
their respective portions of the Waibo Shares for Company Shares (as hereinafter
defined) pursuant to the terms and conditions of this Agreement;
WHEREAS, the Company is a
corporation with no or nominal assets and operations whose shares are registered
under Section 12(g) of the Exchange Act of 1934 (the “Exchange
Act”);
WHEREAS, the Board of
Directors of the Company has adopted resolutions approving the Company’s
acquisition of the Waibo Shares in exchange for the issuance of the Company
Shares (as hereinafter defined) upon the terms and conditions hereinafter set
forth in this Agreement (the “Exchange”);
WHEREAS, it is intended that
the terms and conditions of this Agreement comply in all respects with Section
368(a)(1)(B) and/or Section 351 of the Internal Revenue Code of 1986, as amended
(the “Code”) and the regulations corresponding thereto, so that the Exchange
shall qualify as a tax-free transaction under the Code;
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein and in
reliance upon the representations and warranties hereinafter set forth, the
parties agree as follows:
1
I.
THE EXCHANGE
1.01
Exchange. Upon
the terms and subject to the conditions of this Agreement, the Waibo
Shareholders shall sell, convey, assign, transfer to the Company the Waibo
Shares, and as consideration therefore, the Company will issue to the Waibo
Shareholders or their designees, stock certificates representing 361,920,000
shares of Common Stock (the “Company Shares”), equal to 96.0% of the issued and
outstanding shares of Company Common Stock on a fully diluted basis after giving
effect to conversion of an outstanding convertible note of the Company held by
Millenium Group, Inc., which such note is in the principal amount of $25,000
(the “Convertible Note”), to each Waibo Shareholder in proportion to their
percentage interest in Waibo as set forth on the signature pages
hereto. This share issuance will take place in two
tranches. At the time of Closing, the Company shall issue 38,000,000
shares of Common Stock to the Waibo Shareholders or their
designee. After the Company effectuates an amendment to its Articles
of Incorporation to increase its authorized shares, the Company will issue the
remaining 323,920,000 shares of Common Stock to the Waibo Shareholders, or their
designee, to each Waibo Shareholder in proportion to their percentage interest
in Waibo as set forth on the signature pages hereto, as well as 9,441,667 shares
pursuant to the Convertible Note to the holder of the Convertible Note in full
satisfaction thereof. As a result of the Exchange, Waibo will become
a wholly owned subsidiary of the Company. For U.S. federal income tax
purposes, it is intended that the Exchange shall qualify as a tax-free
transaction under Section 368(a)(1)(B) and/or Section 351 of the
Code.
1.02. Closing. Subject
to the satisfaction or wavier of all of the conditions set forth in Sections
6.01 and 6.02, the Closing of the Exchange (the “Closing”) shall take place on
or before October 22, 2010 at the corporate offices of the Company or at such
other date and/or such other place as the parties may designate. Such
date is referred to herein as the Closing Date.
1.03. Deliveries. At
the Closing, the following shall occur:
1.03(a). The Company shall
issue the 38,000,000 shares of Common Stock to the Waibo Shareholders or their
designee, and deliver such stock certificates to the Waibo Shareholders or their
legal representative.
1.03(b). The Company shall
deliver or cause to be delivered to Waibo Shareholders or its designee the
following: (i) a copy of resolutions duly adopted by the Board of
Directors of the Company authorizing and approving the Exchange and the
execution, delivery and performance of this Agreement; (ii) a certificate of
good standing for the Company from the State of Nevada (iii) written
resignations of all officers and directors of the Company in office immediately
prior to the Closing, provided, however, that the resignation of Norman LeBoeuf
as director shall be effective on the tenth day following the filing by the
Company of an Information Statement on Schedule 14F-I with the Securities and
Exchange Commission, (iv) board resolutions electing certain individuals to the
positions with the Company as specified by the Waibo Shareholders on Schedule I
annexed hereto, provided, however, that the election of Jacky Kwok and Guohua
Zheng as directors shall be effective on the tenth day following the filing by
the Company of an Information Statement on Schedule 14F-I with the Securities
and Exchange Commission; (v) all corporate records, agreements, seals and any
other information reasonably requested by Waibo’s representatives with respect
to the Company; and (vi) such other documents as Waibo and/or the Waibo
Shareholders may reasonably request in connection with the transactions
contemplated hereby.
1.03(c). Waibo and/or the
Waibo Shareholders shall deliver or cause to be delivered to the Company the
following: (i) the Waibo shares together with a bought and sold note in favor of
the Company and (ii) such other documents as the Company may reasonably request
in connection with the transactions contemplated hereby.
2
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II.
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REPRESENTATIONS
AND WARRANTIES OF WAIBO
|
Waibo represents and warrants to the
Company as follows as of the date of this Agreement and as of the
Closing:
2.01. Organization;
Corporate Matters.
2.01(a). Waibo is a
corporation duly organized, validly existing and in good standing under the laws
of Hong Kong. Waibo has the corporate power and authority to carry on
its business as presently conducted; and is licensed or qualified to do business
in all jurisdictions in which the character of its properties or nature of its
business requires it to be so licensed or qualified, other than such
jurisdictions where the failure to be so qualified would not have a material
adverse effect on its financial condition, results of operations or
business.
2.01(b). The copies of the
corporate documents of Waibo, which have been made available to the Company
prior to the Closing, are complete and correct copies as amended and in effect
on the date hereof.
2.01(c). The books and
records of Waibo, all of which have been made available to the Company prior to
the Closing, are complete and correct in all material respects.
2.02. Capitalization.
2.02(a). The authorized
capital stock of Waibo consists of common stock that is 100% owned by the Waibo
Shareholders. All of the issued and outstanding shares of Waibo are
duly authorized, validly issued, fully paid and nonassessable.
2.02(b). There are no
pre-emptive or other rights, options, warrants, subscription rights, conversion
rights, stock appreciation rights, redemption rights, or other agreements,
arrangements or commitments to issue or sell any shares of Waibo capital
stock.
2.03. Authority. Waibo
has full power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized and approved by the Board of Directors of Waibo and no other
corporate proceedings on the part Waibo are necessary to authorize this
Agreement and the transactions contemplated hereby in accordance with the terms
hereof. This Agreement has been duly and validly executed and
delivered by Waibo and constitutes a valid and binding agreement.
2.04. Subsidiaries
and Investments. Waibo owns all of the issued and outstanding
shares of capital stock of three PRC entities: Yunnan Zhaoyang Weili Starch Co.,
Ltd. Guizhou Province Weining Weili Starch Co., and Gansu Weibao Starch Co.,
Ltd. Waibo
does not own any capital stock or have any interest in any corporation,
partnership or other form of business organization, except as described in this
Section 2.04.
3
2.05. Financial
Statements. The financial statements of Waibo and its
subsidiary operations (the “Waibo Financial Statements”), which have been made
available to the Company prior to the Closing, fairly and accurately present the
financial position and results of operations, on a consistent basis, as of the
dates thereof and for the periods then ended (subject, in the case of unaudited
statements, to normal and recurring year-end audit adjustments which were and
are not expected to have material adverse effect on Waibo and its subsidiaries,
its collective business, financial condition or results of
operations).
2.06 Absence
of Material Changes. Since June 30, 2010, there has not been
any material adverse change in the condition (financial or otherwise) of the
properties, assets, liabilities or business of Waibo or its subsidiaries, except
changes in the ordinary course of business which, individually and in the
aggregate, have not been materially adverse.
2.07. Litigation. To
the best knowledge of Waibo, (a) neither Waibo nor any of its subsidiaries is
subject to any judgment, order, decree or stipulation of any court or
quasijudicial or administrative agency of any jurisdiction, domestic or foreign,
and (b) there is no litigation, proceeding or investigation pending or
threatened against Waibo or any of its subsidiaries affecting any of its
respective properties or assets, or against any officer, director or shareholder
of Waibo, that might result, either in any case or in the aggregate, in any
material adverse change in the business, operations, affairs or condition of
Waibo or its properties or assets, or that might call into question the validity
of this Agreement, or any action taken or to be taken pursuant
hereto.
2.08. Disclosure. To
the best knowledge of Waibo, neither this Agreement, the Waibo Financial
Statements nor any other agreement, document, or certificate furnished to the
Company by or on behalf of Waibo in connection with the transactions
contemplated hereby, contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
herein or therein not false or misleading.
III. REPRESENTATIONS
AND WARRANTIES OF THE WAIBO SHAREHOLDERS
Each of the Waibo Shareholders,
severally and not jointly, hereby represents and warrants to the Company as
follows as of the date of this Agreement and as of the Closing:
3.01.
Ownership
of the Waibo Shares. The Waibo Shareholders own, beneficially and of
record, good and marketable title to the Waibo Shares, free and clear of all
security interests, liens, adverse claims, encumbrances, equities, proxies,
options or shareholders' agreements. At the Closing, the Waibo Shareholders will
convey to the Company good and marketable title to the Waibo Shares, free and
clear of any security interests, liens, adverse claims, encumbrances, equities,
proxies, options, shareholders' agreements or restrictions.
3.02. Authority. This
Agreement has been duly and validly executed and delivered by the Waibo
Shareholders and constitutes a valid and binding agreement, enforceable against
the Waibo Shareholders in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors’ rights generally or by general principles of
equity.
4
3.03. Restricted
Securities. The Waibo Shareholders acknowledges that the
Company Shares will not be registered pursuant to the Securities Act of 1933, as
amended (the “Securities Act”), or any applicable state securities laws, that
the Company Shares will be characterized as “restricted securities” under
federal securities laws, and that under such laws and applicable regulations the
Company Shares cannot be sold or otherwise disposed of without registration
under the Securities Act or an exemption therefrom. In this regard, such Waibo
Shareholder is familiar with Rule 144 promulgated under the Securities Act, as
currently in effect, and understands the resale limitations imposed thereby and
by the Securities Act.
3.04. Accredited
Investor. Each Waibo Shareholder is an “non-US Person” as that
term is defined in Regulation S promulgated under the Securities
Act. Each Waibo Shareholder is able to bear the economic risk of
acquiring the Company Shares pursuant to the terms of this Agreement, including
a complete loss of such Waibo Shareholder’s investment in the Company
Shares. Each Waibo Shareholder is acquiring the Company Shares for
his, her or its own account, and not with a view toward resale or distribution
thereof.
3.05. Legend. Such
Waibo Shareholder acknowledges that the certificate(s) representing such Waibo
Shareholder’s pro rata portion of the Company Shares shall each prominently set
forth on the face or back thereof a legend in substantially the following
form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID
ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
IV. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company hereby represents and
warrant to Waibo as follows, as of the date of this Agreement and as of the
Closing:
4.01. Organization;
Corporate Matters.
4.01(a). The Company is a
corporation duly organized, validly existing and in good standing under the laws
of Nevada. The Company has the corporate power and authority to carry
on its business as presently conducted; and is licensed or qualified to do
business in all jurisdictions in which the character of its properties or nature
of its business requires it to be so licensed or qualified, other than such
jurisdictions where the failure to be so qualified would not have a material
adverse effect on its financial condition, results of operations or
business. “Material
Adverse Effect” means, when used with respect to the Company, any event,
occurrence, fact, condition, change or effect, which, individually or in the
aggregate, would reasonably be expected to be materially adverse to the
business, operations, properties, assets, condition (financial or otherwise), or
operating results of the Company, or materially impair the ability of the
Company to perform its obligations under this Agreement, excluding any change,
effect or circumstance resulting from (i) the announcement, pendency or
consummation of the transactions contemplated by this Agreement, or (ii) changes
in the United States securities markets generally.
5
4.01(b). The copies of the
Articles of Incorporation and the Bylaws of the Company, which have been made
available to Waibo prior to the Closing, are complete and correct copies as
amended and in effect on the date hereof. The Company is not in
default under or in violation of any provision of its Articles of Incorporation
or Bylaws in any material respect.
4.01(c). The books and
records of the Company, all of which have been made available to the Company
prior to the Closing, are complete and correct in all material
respects. The records of meetings of the shareholders and Board of
Directors of the Company are complete and correct in all material respects. The
stock records of the Company and the shareholder lists of the Company that the
Company has previously furnished to Waibo are complete and correct in all
material respects and accurately reflect the record ownership and the beneficial
ownership of all the outstanding shares of the Company's capital stock and any
other outstanding securities issued by the Company.
4.01(d). The Company is not
in any default or in violation of any restriction, lien, encumbrance, indenture,
contract, lease, sublease, loan agreement, note or other obligation or liability
by which it is bound or to which any of its assets is subject.
4.02. Capitalization.
4.02(a). The authorized
capital stock of the Company consists of 75,000,0000 shares of common stock, par
value $.001 per share, of which 5,665,000 shares are issued and
outstanding. When issued, the Company Shares will be duly authorized,
validly issued, fully paid and nonassessable.
4.02(b). All of the issued
and outstanding shares of Common Stock of the Company immediately prior the
Share Exchange are duly authorized, validly issued, fully paid and
non-assessable, have been issued in compliance with all applicable U.S. federal
and state securities laws and state corporate laws, and have been issued free of
preemptive rights of any security holder. Except with respect to the Convertible
Note and securities to be issued to the Waibo Shareholders pursuant to the terms
hereof, as of the date of this Agreement there are no outstanding or authorized
options, warrants, agreements, commitments, conversion rights, preemptive rights
or other rights to subscribe for, purchase or otherwise acquire or receive any
shares of the Company’s capital stock, nor are there or will there be any
outstanding or authorized stock appreciation, phantom stock, profit
participation or similar rights, pre-emptive rights or rights of first refusal
with respect to the Company or any Common Stock, or any voting trusts, proxies
or other agreements, understandings or restrictions with respect to the voting
of the Company’s capital stock, and no registration or anti-dilution rights, no
voting trust, proxy, rights plan, anti-takeover plan or other agreement or
understanding to which the Company is a party or by which it is bound with
respect to any equity security of any class of the Company. The Company is not a
party to, and it has no knowledge of, any agreement restricting the transfer of
any shares of the capital stock of the Company. The issuance of all of the
shares of the Company described in this Section 4.02 have been, or will be, as
applicable, in compliance with U.S. federal and state securities laws and state
corporate laws and no Company stockholder has any right to rescind or bring any
other claim against the Company for failure to comply with the Securities Act of
1933, as amended (the “Securities Act”), or state securities
laws.
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4.03. Authority. The
Company and the Company Principal Shareholder have full power and authority to
enter into this Agreement and all agreements, instruments and other documents to
be executed and delivered in connection with the transactions contemplated by
this Agreement (collectively, the “Transaction Documents”) to which the Company
and the Company Principal Shareholder is a party and to perform its obligations
hereunder and each of the Transaction Documents to which the Company and the
Company Principal Shareholder is a party. The execution and delivery of this
Agreement and each of the Transaction Documents by the Company and the Company
Principal Shareholder and the consummation by the Company and the Company
Principal Shareholder of the transactions contemplated hereby and thereby, have
been duly authorized by all necessary corporate action of the Company and the
Company Principal Shareholder, and no other corporate proceedings on the part of
the Company or the Company Principal Shareholder are necessary to authorize this
Agreement or the Transaction Documents or to consummate the transactions
contemplated hereby and thereby. This Agreement constitutes the valid and
legally binding obligation of the Company and the Company Principal Shareholder
and is enforceable in accordance with its terms, except as such enforcement may
be limited by general equitable principles, or by bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors rights generally.
Neither the Company nor the Company Principal Shareholder needs to give any
notice to, make any filings with, or obtain any authorization, consent or
approval of any government or governmental agency or other person in order for
it to consummate the transactions contemplated by this Agreement, other than
filings that may be required or permitted under states securities laws, the
Securities Act and/or the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)
resulting from the issuance of the Company Shares.
4.04. Subsidiaries
and Investments. The Company does not own any capital stock or
have any interest in any corporation, partnership or other form of business
organization.
4.05. No
Undisclosed Liabilities; No Liabilities at Closing. The
Company does not have any liabilities or obligations (whether absolute, accrued,
contingent or otherwise) except (a) liabilities that are reflected and reserved
against on the most recent Company Financial Statements (as hereinafter defined)
that have not been paid or discharged since the date thereof and (b) liabilities
incurred since the date of the most recent Company Financial Statements in the
ordinary course of business consistent with past practice and in accordance with
this Agreement. All issued and outstanding convertible notes (all of
which have been disclosed in the most recent Company Financial Statements) will
be converted into equity at the same time as the Closing and the Company shall
have no debts or other liabilities or obligations (whether absolute, accrued,
contingent or otherwise) following the Closing.
7
4.06. Litigation. There
is no action, suit, proceeding or investigation (“Action”) pending or, to the
knowledge of the Company, currently threatened against the Company or any of its
affiliates, that may affect the validity of this Agreement or the Transaction
Documents or the right of the Company to enter into this Agreement and the
Transaction Documents or to consummate the transactions contemplated hereby or
thereby. There is no Action pending or, to the knowledge of the Company,
currently threatened against the Company or any of its affiliates, before any
court or by or before any governmental body or any arbitration board or
tribunal, nor is there any judgment, decree, injunction or order of any court,
governmental department, commission, agency, instrumentality or arbitrator
against the Company or any of its affiliates. Neither the Company nor any of its
affiliates is a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no Action by the Company or any of its affiliates
relating to the Company currently pending or which the Company or any of its
affiliates intends to initiate.
4.07. Title To
Assets. The Company has good and marketable title to all of
its assets and properties now carried on its books, including those reflected in
the balance sheet contained in the most recent Company Financial Statements,
free and clear of all liens, claims, charges, security interests or other
encumbrances, except as described in the balance sheet included in the most
recent Company Financial Statements or on any Exhibits attached
hereto. The Company does not own or lease any real
property.
4.08. Contracts
and Undertakings. The Company has no operations and is not
subject to any contracts and undertakings, including any agreements, leases,
commitment or licenses.
4.09. Financial
Statements; SEC Filings.
4.09(a) The
Company’s financial statements (the “Financial Statements”) contained in its
periodic reports filed with the Securities and Exchange Commission (the “SEC”)
have been prepared in accordance with generally accepted accounting principles
applicable in the United States of America (“U.S. GAAP”) applied on a consistent
basis throughout the periods indicated, except that those Financial Statements
that are not audited do not contain all footnotes required by U.S. GAAP. The
Financial Statements fairly present the financial condition and operating
results of the Company as of the dates, and for the periods, indicated therein,
subject to normal year-end audit adjustments. Except as set forth in the
Financial Statements, the Company has no material liabilities (contingent or
otherwise). the Company is not a guarantor or indemnitor of any indebtedness of
any other person, entity or organization. the Company maintains a standard
system of accounting established and administered in accordance with U.S.
GAAP.
8
4.09(b). The
Company has timely made all filings with the SEC that it has been required to
make under the Securities Act and the Exchange Act ( the “Public Reports”). Each
of the Public Reports has complied in all material respects with the applicable
provisions of the Securities Act, the Exchange Act, and the Sarbanes/Oxley Act
of 2002 (the “Sarbanes/Oxley Act”) and/or regulations promulgated thereunder.
None of the Public Reports, as of their respective dates, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements made therein not misleading. There is no event, fact or
circumstance that would cause any certification signed by any officer of the
Company in connection with any Public Report pursuant to the Sarbanes/Oxley Act
to be untrue, inaccurate or incorrect in any respect. There is no revocation
order, suspension order, injunction or other proceeding or law affecting the
trading of the Company’s Common Stock.
4.10. Consents
and Approvals; No Conflict. Except for applicable requirements
of federal securities laws and state securities or blue-sky laws, no filing
with, and no permit, authorization, consent or approval of, any third party,
public body or authority is necessary for the consummation by the Company of the
transactions contemplated by this Agreement. Neither the execution
and delivery of this Agreement by the Company or by the Company Principal
Shareholder, nor the consummation by the Company or the Company Principal
Shareholder of the transactions contemplated hereby, nor compliance by the
Company or the Company Principal Shareholder with any of the provisions hereof,
will (a) conflict with or result in any breach of any provisions of the Articles
of Incorporation or Bylaws of the Company or the Company Principal Shareholder,
(b) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, license, contract,
agreement or other instrument or obligation to which the Company or the Company
Principal Shareholder is a party or by which they any of their properties or
assets may be bound or (c) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Company or the Company Principal
Shareholder, or any of their properties or assets, except in the case of clauses
(b) and (c) for violations, breaches or defaults which are not in the aggregate
material to the Company or to the Company Principal Shareholder.
4.11. Absence
of Material Changes. Since September 30, 2010, there has not
been:
(a) Any
sale, lease, transfer, license or assignment of any assets, tangible or
intangible, of the Company;
(b)
Any damage, destruction or property loss, whether or not covered by
insurance, affecting adversely the properties or business of the
Company;
(c)
Any declaration or setting aside or payment of any dividend or
distribution with respect to the shares of capital stock of the Company or any
redemption, purchase or other acquisition of any such shares;
(d)
Any subjection to any lien on any of the assets, tangible or intangible,
of the Company;
(e)
Any incurrence of indebtedness or liability or assumption of obligations
by the Company;
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(f)
Any waiver or release by the Company of any right of any material
value;
(g)
Any compensation or benefits paid to officers or directors of the
Company;
(h)
Any change made or authorized in the Certificate of Incorporation or
Bylaws of the Company;
(i)
Any undisclosed loan to, or other transaction with, any officer, director
or stockholder of the Company giving rise to any claim or right of the Company
against any such person or of such person against the Company; or
(j)
Any material adverse change in the condition (financial or otherwise) of
the properties, assets, liabilities or business of the Company.
4.12.
Legal
Compliance,
4.12(a). The Common Stock of
the Company is registered under Section 12(g) of the Exchange
Act. The Company has filed all reports and other material required to
be filed by it with the SEC pursuant to Section 15(d) of the Exchange
Act.
4.12(b). The currently
outstanding shares of the Company’s Common Stock (i) were issued pursuant to the
Registration Statement or valid exemptions from registration under the
Securities Act pursuant to Regulation D promulgated thereunder and (ii) are duly
authorized, validly issued, fully paid and nonassessable.
4.12(c). To the best
knowledge of the Company, after due investigation, no claim has been filed
against the Company alleging a violation of any applicable laws and regulations
of foreign, federal, state and local governments and all agencies
thereof. The Company holds all of the material permits, licenses,
certificates or other authorizations of foreign, federal, state or local
governmental agencies required for the conduct of its business as presently
conducted.
4.13.
Books,
Financial Records and Internal Controls. All the accounts, books,
registers, ledgers, minutes of the board of directors and financial and other
records of whatsoever kind of the Company have been fully, properly and
accurately kept and completed; there are no material inaccuracies or
discrepancies of any kind contained or reflected therein; and they give and
reflect a true and fair view of the financial, contractual and legal position of
the Company. the Company maintains a system of internal accounting controls
sufficient, in the judgment of the Company, to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate actions are taken with respect to any
differences.
10
4.14.
Employee
Benefit Plans.
The Company does not have any “Employee Benefit Plan” as defined in the
U.S. Employee Retirement Income Security Act of 1974 or similar plans under any
applicable laws.
4.15.
Tax
Returns, Payments and Elections. The Company has filed all Tax (as
defined below) returns, statements, reports, declarations and other forms and
documents (including, without limitation, estimated tax returns and reports and
material information returns and reports) (“Tax Returns”) required pursuant to
applicable law to be filed with any Tax Authority (as defined below). All such
Tax Returns are accurate, complete and correct in all material respects, and the
Company has timely paid all Taxes due and adequate provisions have been and are
reflected in the Company’s Financial Statements for all current taxes and other
charges to which the Company is subject and which are not currently due and
payable. None of the Company’s federal income tax returns have been audited by
the Internal Revenue Service. The Company has no knowledge of any additional
assessments, adjustments or contingent tax liability (whether federal or state)
of any nature whatsoever, whether pending or threatened against the Company for
any period, nor of any basis for any such assessment, adjustment or contingency.
The Company has withheld or collected all Taxes required to be withheld or
collected therefrom, and has paid the same to the proper Tax Authority. For
purposes of this Agreement, the following terms have the following meanings:
“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means any and all
taxes including, without limitation, (x) any net income, alternative or add-on
minimum tax, gross income, gross receipts, sales, use, ad valorem, transfer,
franchise, profits, value added, net worth, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, property,
environmental or windfall profit tax, custom, duty or other tax, governmental
fee or other like assessment or charge of any kind whatsoever, together with any
interest or any penalty, addition to tax or additional amount imposed by any
United States, state, local or foreign governmental authority or regulatory body
responsible for the imposition of any such Tax (domestic or foreign) (a “Tax
Authority”), (y) any liability for the payment of any amounts of the type
described in (x) as a result of being a member of an affiliated, consolidated,
combined or unitary group for any taxable period or as the result of being a
transferee or successor or any other person, and (z) any liability for the
payment of any amounts of the type described in (x) or (y) as a result of any
express or implied obligation to indemnify any other person.
4.16 No Debt
Obligations.
Except for the Convertible Note, upon the Closing Date, the Company will have no
debt, obligations or liabilities of any kind whatsoever other than with respect
to the transactions contemplated hereby. The Company is not a guarantor of any
indebtedness of any other person, entity or corporation.
4.17.
No Broker
Fees. No
brokers, finders or financial advisory fees or commissions will be payable by or
to the Company or any of their affiliates with respect to the transactions
contemplated by this Agreement, and after the Closing, the Company Principal
Shareholder will indemnify and hold Waibo and the Company harmless against any
liability or expense arising out of, or in connection with, any such
claim.
11
4.18
No
Disagreements with Accountants and Lawyers. There are no disagreements of
any kind presently existing, or anticipated by the Company to arise, between the
Company and any accountants and/or lawyers formerly or presently engaged by the
Company. the Company is current with respect to fees owed to its accountants and
lawyers.
4.19
Disclosure.
This Agreement and any certificate attached hereto or delivered in accordance
with the terms hereby by or on behalf of the Company in connection with the
transactions contemplated by this Agreement do not contain any untrue statement
of a material fact or omit any material fact necessary in order to make the
statements contained herein and/or therein not misleading.
4.20
Absence
of Undisclosed Liabilities. Since the date of the filing of its quarterly
report on Form 10-Q for the quarter ended September 30, 2010 except as
specifically disclosed in the Public Reports (A) there has been no event,
occurrence or development that has resulted in or could result in a Material
Adverse Effect; (B) the Company has not incurred any liabilities, obligations,
claims or losses, contingent or otherwise, including debt obligations, other
than professional fees; (C) the Company has not declared or made any dividend or
distribution of cash or property to its shareholders, purchased, redeemed or
made any agreements to purchase or redeem any shares of its capital stock, or
issued any equity securities other than with respect to transactions
contemplated hereby; (D) the Company has not made any loan, advance or capital
contribution to or investment in any person or entity; (E) the Company has not
discharged or satisfied any lien or encumbrance or paid any obligation or
liability (absolute or contingent), other than current liabilities paid in the
ordinary course of business; (F) the Company has not suffered any substantial
losses or waived any rights of material value, whether or not in the ordinary
course of business, or suffered the loss of any material amount of prospective
business; and (G) except for the Exchange, the Company has not entered into any
other transaction other than in the ordinary course of business, or entered into
any other material transaction, whether or not in the ordinary course of
business.
4.21 Duly
Authorized. The issuance of the Company Shares has been duly authorized
and, upon delivery to Waibo Shareholders, or their designee, of certificates
therefor in accordance with the terms of this Agreement, the Company Shares will
be validly issued in compliance with all applicable U.S. federal and state
securities and corporate laws, fully paid, and nonassessable, will have the
rights, preferences and privileges specified, will be free of preemptive rights,
and will be free and clear of all liens and restrictions, other than
restrictions on transfer imposed by this Agreement and any applicable securities
laws and the regulations and rules promulgated thereunder.
4.22 No
Integrated Offering. The Company does not have any registration statement
pending before the Commission or currently under the Commission’s review and the
Company has not offered or sold any of its equity securities or debt securities
convertible into shares of Common Stock which has not been disclosed in its
Public Reports.
12
4.23 Employees.
a. the
Company has one employee.
b. Other
than Norman LeBoeuf and Neville Pearson, the Company does not have any officers
or directors. No director or officer of the Company is a party to, or is
otherwise bound by, any contract (including any confidentiality, non-competition
or proprietary rights agreement) with any other person that in any way adversely
affects or will materially affect (a) the performance of his duties as a
director or officer of the Company or (b) the ability of the Company to conduct
its business.
4.24
Interested
Party Transactions. No officer, director or principal stockholder of the
Company or any affiliate or “associate” (as such term is defined in Rule 405 as
promulgated by the SEC under the Securities Act) of any such person, has or has
had, either directly or indirectly, (1) an interest in any person which
(a) furnishes or sells services or products which are furnished or sold or
are proposed to be furnished or sold by the Company, or (b) purchases from
or sells or furnishes to, or proposes to purchase from, sell to or furnish the
Company any goods or services; or (2) a beneficial interest in any contract
or agreement to which the Company is a party or by which it may be bound or
affected.
4.25 Intellectual
Property. the Company does not own, use or license any Intellectual
Property in its activities as presently conducted. For purposes of this
Agreement, “Intellectual Property” means all industrial and intellectual
property, including, without limitation, all U.S. and non-U.S. patents, patent
applications, patent rights, trademarks, trademark applications, common law
trademarks, Internet domain names, trade names, service marks, service mark
applications, common law service marks, and the goodwill associated therewith,
copyrights, in both published and unpublished works, whether registered or
unregistered, copyright applications, franchises, licenses, know-how, trade
secrets, technical data, designs, customer lists, confidential and proprietary
information, processes and formulae, all computer software programs or
applications, layouts, inventions, development tools and all documentation and
media constituting, describing or relating to the above, including manuals,
memoranda, and records, whether such intellectual property has been created,
applied for or obtained anywhere throughout the world.
4.26 No
Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to the Company or its respective businesses,
properties, prospects, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement
by the Company but which has not been so publicly announced or disclosed. The
Company has not provided to Waibo, or the Waibo Shareholders, any material
non-public information or other information which, according to applicable law,
rule or regulation, was required to have been disclosed publicly by the Company
but which has not been so disclosed, other than with respect to the transactions
contemplated by this Agreement.
13
4.27
Disclosure. This Agreement and any
certificate attached hereto or delivered in accordance with the terms hereof by
or on behalf of the Company or any of the Company Controlling Stockholders in
connection with the transactions contemplated by this Agreement, when taken
together, do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements contained
herein and/or therein not misleading.
4.28
Compliance
with Laws. The Company has been and is in compliance with, and
has not received any notice of any violation of any, applicable law, order,
ordinance, regulation or rule of any kind whatsoever, including without
limitation the Securities Act, the Exchange Act, the applicable rules and
regulations of the SEC or the applicable securities laws and rules and
regulations of any state.
4.29
No
Repurchase Requirements. There are no outstanding contractual obligations
(contingent or otherwise) of the Company to retire, repurchase, redeem or
otherwise acquire any outstanding shares of capital stock of, or other ownership
interests in, the Company or to provide funds to or make any investment (in the
form of a loan, capital contribution or otherwise) in any other
person.
|
V.
|
COVENANTS AND AGREEMENTS OF THE
PARTIES EFFECTIVE PRIOR TO
CLOSING
|
5.01.
Debt
Conversion. As soon as practicable after the Company
effectuates an increase of its authorized Common Stock, and after having
received a written election and instruction to convert the Convertible Note, the
Company shall convert the Convertible Note into 9,441,667 shares of Common Stock
in full satisfaction thereof.
5.02
Conduct
of Business. Subject to the provisions hereof, from the date
hereof through the Closing, the Company shall (a) conduct its business in the
ordinary course and in such a manner so that the representations and warranties
contained herein shall continue to be true and correct in all material respects
as of the Closing as if made at and as of the Closing and (b) not enter into any
material transactions or incur any material liability not required or
specifically contemplated hereby, without first obtaining the written consent of
Waibo. Without the prior written consent of Waibo, except as required
or specifically contemplated hereby, the Company shall not undertake or fail to
undertake any action if such action or failure would render any of the Company’s
representations and warranties untrue in any material respect as of the
Closing.
VI. CONDITIONS
TO CLOSING
6.01. Conditions
to Obligations of Waibo and Waibo Shareholders. The
obligations of Waibo and the Waibo Shareholders under this Agreement shall be
subject to each of the following conditions:
6.01(a). The Company shall
have delivered or caused to be delivered the items listed in Sections 1.03(a)
and 1.03(b).
14
6.01(b). The representations
and warranties of the Company and the Company Principal Shareholder contained
herein shall be true in all material respects at the Closing with the same
effect as though made at such time, except for those representations and
warranties made as of a particular date which shall be true and correct as of
such date. Subject to Section 6.01(g), the Company and the Company
Principal Shareholder shall have performed in all material respects all of its
or their respective obligations and complied in all material respects with all
covenants and conditions required by this Agreement to be performed or complied
with by it or them at or prior to the Closing.
6.01(c). As of the Closing
Date, the Company shall be current in the filing of all of its SEC
Documents.
6.01(d). No injunction or
restraining order shall be in effect, and no action or proceeding shall have
been instituted and, at what would otherwise have been the Closing, remain
pending before a court to restrain or prohibit the transactions contemplated by
this Agreement.
6.01(e). All statutory
requirements for the valid consummation by the Company of the transactions
contemplated by this Agreement shall have been fulfilled. All
authorizations, consents and approvals of, filings with and notices to any
governmental body, court, agency, official or authority and other persons
required to be obtained in order to permit consummation by the Company of the
transactions contemplated by this Agreement shall have been
obtained.
6.01(f). There
shall not be or exist any change, effect, event, circumstance, occurrence or
state of facts that has had, has or which reasonably could be expected to have a
material adverse effect on the Company.
6.02. Conditions
to Obligations of the Company. The obligations of the Company
under this Agreement shall be subject to the following conditions:
6.02(a). Waibo and/or the
Waibo Shareholders shall have delivered or caused to be delivered the items
listed in Section 1.03(c).
6.02(b). The representations
and warranties of Waibo and the Waibo Shareholders contained herein shall be
true in all material respects at the Closing with the same effect as though made
at such time, except for those representations and warranties made as of a
particular date which shall be true and correct as of such
date. Waibo and the Waibo Shareholders shall have performed in all
material respects all of its, his or her respective obligations and complied in
all material respects with all covenants and conditions required by this
Agreement to be performed or complied with by it, him or her at or prior to the
Closing.
6.02(c). No injunction or
restraining order shall be in effect, and no action or proceeding shall have
been instituted and, at what would otherwise have been the Closing, remain
pending before a court to restrain or prohibit the transactions contemplated by
this Agreement.
15
6.02(d). All statutory
requirements for the valid consummation by Waibo of the transactions
contemplated by this Agreement shall have been fulfilled. All
authorizations, consents and approvals of, filings with and notices to any
governmental body, court, agency, official or authority and other persons
required to be obtained in order to permit consummation by Waibo of the
transactions contemplated by this Agreement shall have been
obtained.
6.02(e). There shall not be
or exist any change, effect, event, circumstance, occurrence or state of facts
that has had, has or which reasonably could be expected to have a material
adverse effect on Waibo.
VII. TERMINATION
7.01. Termination. This
Agreement may be terminated at any time prior to the Closing Date as
follows:
(a) by mutual consent of
Waibo and the Company;
(b) by either Waibo or the
Company if there has been a material breach of any representation, warranty,
covenant or agreement on the part of the other set forth in this Agreement which
breach has not been cured within five (5) business days following receipt by the
breaching party of notice of such breach, or if any permanent injunction or
other order of a court or other competent authority preventing the consummation
of the Exchange shall have become final and non-appealable; or
(c) by either Waibo or the
Company if the Exchange shall not have been consummated before October 31,
2010.
7.02. Effect of
Termination. In the event of proper
termination of this Agreement by either Waibo or the Company as provided in
Section 7.01, this Agreement shall forthwith become void and there shall be no
liability or obligation on the part of any party hereto. In such event, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
7.03. Survival
of Representations, Warranties and Agreements. The
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the consummation
of the transactions contemplated hereby and shall remain in full force and
effect after the Closing Date.
|
VIII.
|
MISCELLANEOUS
|
8.01. Tax
Treatment. The Exchange contemplated hereby is intended to
qualify as a so-called “tax-free” reorganization and/or incorporation under the
provisions of Section 368(a)(1)(B) and or Section 351 of the
Code. The Company and Waibo acknowledge, however, that they each have
been represented by their own tax advisors in connection with this transaction;
that neither has made any representation or warranty to the other with respect
to the treatment of such transaction or the effect thereof under applicable tax
laws, regulations, or interpretations; and that no attorney’s opinion or private
revenue ruling has been obtained with respect to the treatment of such
transactions or the effects thereof under the Code.
16
8.02 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, sent by overnight
courier or mailed by registered or certified mail (postage prepaid and return
receipt requested) to the party to whom the same is so delivered, sent or mailed
at addresses set forth below:
|
If
to the Company:
|
Norman
LeBeouf
|
c/o Hand
& Hand
24 Calle
de la Luna
San
Clemente, CA 92673
Attention:
Jehu Hand
Telephone:
949-489-0034
Fax:
949-489-0034
|
with
a copy to:
|
Hand
& Hand
|
24 Calle
de la Luna
San
Clemente, CA 92673
Attention:
Jehu Hand
Telephone:
949-489-0034
Fax:
949-489-0034
and a copy to the Company Principal
Shareholder at:
Orion
Investment Inc.
c/o
Dempsey Mork
55051
Riviera Drive,
La
Quinta, CA 92253
Telephone:
760-219-2776
Fax:
|
If
to Waibo:
|
Hong
Kong Waibo International
|
Room 2102
F&G, Nan Fung Centre, 264-298 Castle Peak Rd.,
Tsuen
Wan, New Territories, Hong Kong
Attention:
Joanny Kwok
Telephone:852-24122208
Fax:
852-2412-0239
17
|
with
a copy to:
|
Loeb
& Loeb
|
345 Park
Avenue
New York,
New York 10154
Attention:
Mitchell Nussbaum
Telephone: (212)
407-5199
Fax: (212)
504-3013
If to the Waibo
Shareholders:
Kai Bo
Holdings Limited
Rm 2102
F&G, Nan Fung Centre, 264-298 Castle Peak Rd,
Tsuen
Wan, New Territories, Hong Kong
Attention:
Joanny Kwok
Telephone:
852-24122208
Fax:
852-2412-0239
with a copy to Loeb & Loeb at the
address above.
8.03. Further
Assurances. From time to time, at the other party’s request
and without further consideration, each of the parties will execute and deliver
to the others such documents and take such action as the other party may
reasonably request in order to consummate more effectively the transactions
contemplated hereby.
8.04. Parties
in Interest; No Third Party Beneficiaries. Except as otherwise
expressly provided herein, all the terms and provisions of this Agreement shall
be binding upon, shall inure to the benefit of and shall be enforceable by the
respective heirs, beneficiaries, personal and legal representatives, successors
and assigns of the parties hereto. This Agreement shall not be deemed
to confer upon any person not a party hereto any rights or remedies
hereunder.
8.05. Entire
Agreement; Amendments. This Agreement, including the
Schedules, Exhibits and other documents and writings referred to herein or
delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, warranties,
covenants or undertakings other than those expressly set forth herein or
therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject
matter. This Agreement may be amended only by a written instrument
duly executed by the parties or their respective successors or
assigns.
8.06. Headings,
Etc. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretations of this Agreement. References to Sections
and Articles refer to sections and articles of this Agreement unless otherwise
stated.
8.07. Pronouns. All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine or neuter, singular or plural, as the identity of the person, persons,
entity or entities may require.
18
8.08. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument.
8.09. Governing
Law; Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the New York without regard to its
conflict of laws doctrines. Any and all actions brought under this
Agreement shall be brought in the state and/or federal courts of the United
States sitting in the City and County of New York, NY, U.S.A and each party
hereby waives any right to object to the convenience of such venue.
8.10 Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated and the parties shall negotiate in good faith to modify this
Agreement to preserve each party's anticipated benefits under this
Agreement.
8.11 Separate
Counsel. Each party hereby expressly acknowledges that it has
been advised to seek its own separate legal counsel for advice with respect to
this Agreement, and that no counsel to any party hereto has acted or is acting
as counsel to any other party hereto in connection with this
Agreement.
8.12 Waiver. No
waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement
shall be deemed to be a waiver of any subsequent default or breach by such party
of the same or any other representation, warranty, covenant or condition. No
act, delay, omission or course of dealing on the part of any party in exercising
any right, power or remedy under this Agreement or at law or in equity shall
operate as a waiver thereof or otherwise prejudice any of such party's rights,
powers and remedies. All remedies, whether at law or in equity, shall be
cumulative and the election of any one or more shall not constitute a waiver of
the right to pursue other available remedies.
8.13 Assignability. This
Agreement (together with all other documents and instruments referred to herein)
shall not be assigned by operation of law or otherwise, except as may be
mutually agreed upon by the parties hereto.
8.14 Expenses. At
or prior to the Closing, the parties hereto shall pay all of their own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial
advisers.
8.15 Publicity. Except
as otherwise required by law or the rules of the SEC, so long as this Agreement
is in effect, neither Waibo nor the Company shall issue or cause the publication
of any press release or other public announcement with respect to the
transactions contemplated by this Agreement without the written consent of the
other party, which consent shall not be unreasonably withheld.
19
8.16 Indemnification;
Remedies
8.16(a) Survival. All
representations, warranties, covenants, and obligations in this Agreement shall
expire thirty-six (36) months following the date this Agreement is executed (the
“Survival Period”). The right to indemnification, payment of damages
or other remedy based on such representations, warranties, covenants, and
obligations will not be affected by any investigation conducted with respect to,
or any knowledge acquired (or capable of being acquired) at any time, whether
before or after the execution and delivery of this Agreement, with respect to
the accuracy or inaccuracy of or compliance with, any such representation,
warranty, covenant, or obligation. The waiver of any condition based
on the accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, payment of damages, or other remedy based on such
representations, warranties, covenants, and obligations.
8.16(b) Indemnification
by the Company Principal Shareholder. From and after the
execution of this Agreement until the expiration of the Survival Period, the
Company Principal Shareholder shall indemnify and hold harmless the Company,
Waibo and the Waibo Shareholders (collectively, the “Company Indemnified
Parties”), from and against any damages arising, directly or indirectly, from or
in connection with:
(i) any
breach of any representation or warranty made by the Company or the Company
Principal Shareholder in this Agreement or any Transaction Document or in any
certificate delivered by the Company pursuant to this Agreement;
(ii) any
breach by the Company or the Company Principal Shareholder of any covenant or
obligation of the Company in this Agreement or any Transaction Document required
to be performed by the Company or the Company Principal Shareholder on or prior
to the Closing Date or after the Closing Date; or
(iii) any
and all losses, claims, damages, or liabilities against the Company or the
Company Principal Shareholder, occurring on or prior to the Closing
Date.
Notwithstanding
anything to the contrary contained herein, the Company and the Company Principal
Shareholder’s total indemnification obligations under this Section 8.16 shall be
limited to and shall not under any circumstances exceed US
$300,000.
20
8.16(c) Indemnification by Company
Principal Shareholder relating to a Proceeding. The Company Principal
Shareholder shall to the fullest extent permitted under applicable Law,
indemnify and hold harmless, each present, former and future director, officer
or employee of the Company (collectively, the “Indemnified Parties”) against any
costs or expenses (including attorneys’ fees), judgments, fines, losses, claims,
damages, liabilities and amounts paid in settlement, in connection with any
Proceeding whether by a third party, the Company or otherwise (x) arising out of
or pertaining to the transactions contemplated by this Agreement or (y)
otherwise with respect to any acts or omissions occurring at or prior to the
Closing Date (“Damages”), to the same extent as provided in the Company’s
Organizational Documents or any applicable contract or agreement as in effect on
the date hereof, in each case for the Survival Period. In the event
of any such Proceeding (whether arising before or after the Closing Date), (i)
the Company Principal Shareholder shall pay the reasonable fees and expenses of
such counsel, promptly after statements therefor are received, provided that the
Indemnified Parties shall be required to reimburse the Company Principal
Shareholder for such payments in the circumstances and to the extent required by
the Company’s Organizational Documents, any applicable contract or agreement or
applicable Law, and (ii) the Company Principal Shareholder shall cooperate in
the defense of any such matter; provided, however, that the Company Principal
Shareholder shall not be liable for any settlement effected without its written
consent (which consent shall not be unreasonably withheld); and provided,
further, that, in the event that any claim or claims for indemnification are
asserted or made within the Survival Period, all rights to indemnification in
respect of any such claim or claims shall continue until the disposition of any
and all such claims. The Indemnified Parties as a group may retain
only one law firm to represent them in each applicable jurisdiction with respect
to any single action unless there is, under applicable standards of professional
conduct, a conflict on any significant issue between the positions of any two or
more Indemnified Parties, in which case each Indemnified Person with respect to
whom such a conflict exists (or group of such Indemnified Persons who among them
have no such conflict) may retain one separate law firm in each applicable
jurisdiction. “Organizational Documents” means (a) the articles or
certificate of incorporation and the by-laws or code of regulations of a
corporation; (b) the partnership agreement and any statement of partnership of a
general partnership; (c) the limited partnership agreement and the certificate
of limited partnership of a limited partnership; (d) the articles or certificate
of formation and operating agreement of a limited liability company; (e) any
other document performing a similar function to the documents specified in
clauses (a), (b), (c) and (d) adopted or filed in connection with the creation,
formation or organization of a natural person, corporation, business trust,
association, company, partnership, limited liability company, joint venture and
other entities, governments, agencies and political subdivisions.; and (f) any
and all amendments to any of the foregoing.
8.16(d)
Breach by
the Waibo Shareholders. Nothing in this Section 8.16 shall
limit the Company’s right to pursue any appropriate legal or equitable remedy
against any of the Waibo Shareholders with respect to any damages from and after
the execution of this Agreement, until the expiration of the Survival Period
arising, directly or indirectly, from or in connection with: (a) any breach by
such Waibo Shareholder of any representation or warranty made by such Waibo
Shareholder in this Agreement or in any certificate delivered by such Waibo
Shareholder pursuant to this Agreement or (b) any breach by such Waibo
Shareholder of any covenants or obligation in this Agreement required to be
performed by the Waibo Shareholder on or prior to the Closing Date or after the
Closing Date. All claims of the Company pursuant to this Section
8.16(d) shall be brought by the Company Principal Shareholder on behalf of the
Company and those persons who were stockholders of the Company immediately prior
to the Closing Date.
[Signature
Pages Follow]
21
IN WITNESS WHEREOF, this Agreement has
been duly executed and delivered by the parties hereto as the date first above
written.
|
WAIBO
SHAREHOLDERS
|
THE
COMPANY
|
|||
|
CFO
Consultants Inc.
|
||||
|
/s/
|
Joanny Kwok
|
|||
|
Name: Joanny
Kwok
|
/s/ Neville
Pearson
|
|||
|
Address:
Rm 2102 F&G, Nan Fung Centre,
|
By:
Neville Pearson
|
|||
|
264-298
Castle Peak Rd, Tsuen Wan, New
|
Title:
Director
|
|||
|
Territories,
Hong Kong
|
||||
|
Percentage
interest in Waibo: 40%
|
||||
|
COMPANY
PRINCIPAL SHAREHOLDER
|
||||
|
/s/
|
Jacky Kwok
|
|||
|
Name: Jacky
Kwok
|
Orion
Investment Inc.
|
|||
|
Address:
Rm 2102 F&G, Nan Fung Centre,
|
||||
|
264-298
Castle Peak Rd, Tsuen Wan, New
|
/s/ Dempsey
Mork
|
|||
|
Territories,
Hong Kong
|
By:
Dempsey Mork
|
|||
|
Percentage
interest in Waibo: 30%
|
Title:
President
|
|||
|
/s/
|
Lam Yukang
|
HONG
KONG WAIBO INTERNATIONAL
|
||
|
Name: Lam
Yukang
|
LIMITED
|
|||
|
Address:
|
||||
|
Percentage
interest in Waibo: 30%
|
/s/ | Joanny Kwok | ||
|
By:
Joanny Kwok
|
||||
|
|
Title:
Director
|
|||
22
SCHEDULE
I
Post-Closing
Officers and Directors of the Company
|
Joanny
Kwok
|
Chief
Executive Officer
|
|
Guohua
Zheng
|
Chief
Operating Officer
|
|
Ken
Tsang
|
Chief
Finacial Officer
|
|
Joanny
Kwok
|
Chairman
of the Board of Directors
|
|
Jacky
Kwok
|
Director
|
|
Guohua
Zheng
|
Director
|
23