STOCK PURCHASE AGREEMENT Between MOPIE (BVI) LIMITED and LUCKYBULL LIMITED Dated ___________, 2007
Exhibit 10.2
Between
MOPIE
(BVI) LIMITED
and
LUCKYBULL
LIMITED
Dated
___________, 2007
THIS
STOCK PURCHASE AGREEMENT (hereinafter referred to as this "Agreement") is
entered into as of this ___ day of ________, 2007, by and between MOPIE (BVI)
LIMITED, a British Virgin Islands corporation (hereinafter referred to as the
"Company"), LUCKYBULL LIMITED, a British Virgin Islands corporation (hereinafter
referred to as "LUCKYBULL"), and Tan ▇▇▇ ▇▇▇▇, who has an address of ▇▇▇▇▇ ▇▇▇
#▇▇-▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and passport number ▇▇▇▇▇▇▇▇▇ (the
"LUCKYBULL Shareholder") who owns one hundred percent (100%) of the issued and
outstanding shares of LUCKYBULL, upon the following premises:
Premises.
WHEREAS,
the LUCKYBULL Shareholder owns one hundred percent (100%) of the issued and
outstanding shares of the capital stock of LUCKYBULL;
WHEREAS,
the Company is a privately held corporation organized under the laws of the
British Virgin Islands;
WHEREAS,
LUCKYBULL is a privately held corporation organized under the laws of the
British Virgin Islands (“BVI”);
WHEREAS,
the Company desires to acquire 100% of the issued and outstanding shares of
LUCKYBULL in exchange for a Convertible Promissory Note in the aggregate amount
of $30,000,000 Singapore dollars (the “Note”) and (the "Purchase Offer" or the
“Purchase”), so that LUCKYBULL will become a wholly owned subsidiary of the
Company; and
WHEREAS,
the LUCKYBULL Shareholder desires to exchange all of his capital stock of
LUCKYBULL solely in exchange for the Note.
Hereafter, all references to USD$,
shall refer to United States dollars, and all references to S$, shall refer to
Singapore dollars.
Agreement
NOW
THEREFORE, on the stated premises and for and in consideration of the mutual
covenants and agreements hereinafter set forth and the mutual benefits to the
parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF LUCKYBULL
AND THE
LUCKYBULL SHAREHOLDER
As an
inducement to and to obtain the reliance of the Company, except as set forth on
the LUCKYBULL Schedules (as hereinafter defined), LUCKYBULL and the LUCKYBULL
Shareholder represent and warrant as follows:
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Section
1.01
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Organization. LUCKYBULL is a corporation duly organized, validly existing, and in good standing under the laws of the BVI and has the corporate power and is duly authorized, qualified, franchised, and licensed under all applicable laws, regulations, ordinances, and orders of public authorities to own all of its properties and assets and to carry on its business in all material respects as it is now being conducted, including qualification to do business as a foreign corporation in the states or countries in which the character and location of the assets owned by it or the nature of the business transacted by it requires qualification, except where failure to be so qualified would not have a material adverse effect on its business. Included in the LUCKYBULL Schedules are complete and correct copies of the Memorandum and Articles of Association of LUCKYBULL ( “Articles” ) as in effect on the date hereof. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, violate any provision of LUCKYBULL's Articles. LUCKYBULL has taken all actions required by law, its Articles, or otherwise to authorize the execution and delivery of this Agreement. LUCKYBULL has full power, authority, and legal right and has taken all action required by law, its Articles and otherwise to consummate the transactions herein contemplated. |
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Section
1.02
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Capitalization. The
authorized capitalization of LUCKYBULL is USD$500,000 divided into
50,000,000 ordinary shares of USD$0.01 each, of which 8,100,000 shares or
(USD$81,000 paid up) are currently issued and outstanding and no preferred
shares. All
issued and outstanding shares are legally issued, fully paid, and
non-assessable and not issued in violation of the preemptive or other
rights of any person.
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Section
1.03
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Subsidiaries and
Predecessor Corporations. Save for its
wholly-owned subsidiary, Molong Information Technology (Shanghai) Co.,
Ltd, LUCKYBULL does not have any predecessor corporation(s) or
subsidiary(ies), and does not own, beneficially or legally, any shares of
any other corporation.
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Section
1.04
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Other
Information.
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(a)
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Except
as otherwise provided in the LUCKYBULL Schedules, LUCKYBULL has no
material liabilities with respect to the payment of any federal, state,
county, local or other taxes (including any deficiencies, interest or
penalties), except for taxes accrued but not yet due and
payable.
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(b)
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LUCKYBULL
has filed all state, federal or local income and/or franchise tax returns
required to be filed by it from inception to the date
hereof. Each of such income tax returns reflects the taxes due
for the period covered thereby, except for amounts which, in the
aggregate, are immaterial.
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(c)
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The
books and records of LUCKYBULL are in all material respects complete and
correct and have been maintained in accordance with good business and
accounting practices.
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(d)
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LUCKYBULL
has no material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise in excess of Twenty-Five Thousand Dollars
($25,000), except
as disclosed in writing to the Company on Schedule
1.04.
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Section
1.05
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Information. The
information concerning LUCKYBULL set forth in this Agreement and in the
LUCKYBULL Schedules is complete and accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state
a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. In
addition, LUCKYBULL has fully disclosed in writing to the Company (through
this Agreement or the LUCKYBULL Schedules) all information relating to
matters involving LUCKYBULL or its assets or its present or past
operations or activities which (i) indicated or may indicate, in the
aggregate, the existence of a greater than Twenty-Five Thousand Dollars
($25,000) liability or diminution in value, (ii) have led or may lead to a
competitive disadvantage on the part of LUCKYBULL, or (iii) either alone
or in aggregation with other information covered by this Section,
otherwise have led or may lead to a material adverse effect on the
transactions contemplated herein or on LUCKYBULL, its assets, or its
operations or activities as presently conducted or as contemplated to be
conducted after the Closing Date, including, but not limited to,
information relating to governmental, employee, environmental, litigation
and securities matters and transactions with
affiliates.
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Section
1.06
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Options or
Warrants. Except as otherwise provided in this
Agreement, there are no existing options, warrants, calls, or commitments
of LUCKYBULL of any character relating to the authorized and unissued
LUCKYBULL common shares,
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Section
1.07
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Absence of Certain Changes or Events. Except as set forth in this Agreement or the LUCKYBULL Schedules, since inception on 20th of July 2005: |
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(a)
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there
has not been (i) any material adverse change in the proposed business,
operations, properties, assets, or condition of LUCKYBULL or (ii) any
damage, destruction, or loss to LUCKYBULL (whether or not covered by
insurance) materially and adversely affecting the business or financial
condition of LUCKYBULL;
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(b)
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LUCKYBULL
has not (i) amended its Articles (other than as supplied to LUCKYBULL in
connection with Section 1.17, below); (ii) declared or made, or agreed to
declare or make, any payment of dividends or distributions of any assets
of any kind whatsoever to shareholders or purchased or redeemed, or agreed
to purchase or redeem, any of its capital shares; (iii) waived any rights
of value which in the aggregate are outside of the ordinary course of
business or material considering the business of LUCKYBULL; (iv) made any
material change in its method of management, operation or accounting; (v)
entered into any other material transaction other than sales in the
ordinary course of its business; (vi) made any accrual or arrangement for
payment of bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee; (vii)
increased the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its salaried employees whose
monthly compensation exceeds Ten Thousand Dollars ($10,000); or (viii)
made any increase in any profit sharing, bonus, deferred compensation,
insurance, pension, retirement, or other employee benefit plan, payment,
or arrangement made to, for, or with its officers, directors, or
employees;
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(c)
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LUCKYBULL
has not (i) borrowed or agreed to borrow any funds or incurred, or become
subject to, any material obligation or liability (absolute or contingent)
in excess of $25,000 with the exception of its Memorandum of understanding
and mandate with PCG BVI except as disclosed herein and except liabilities
incurred in the ordinary course of business; (ii) paid or agreed to pay
any material obligations or liability (absolute or contingent) other than
current liabilities, and current liabilities incurred in the ordinary
course of business and professional and other fees and expenses in
connection with the preparation of this Agreement and the consummation of
the transactions contemplated hereby; (iii) sold or transferred, or agreed
to sell or transfer, any of its assets, properties, or rights (except
assets, properties, or rights not used or useful in its business which, in
the aggregate have a value of less than Twenty-Five Thousand Dollars
($25,000)), or canceled, or agreed to cancel, any debts or claims (except
debts or claims which in the aggregate are of a value of less than
Twenty-Five Thousand Dollars ($25,000)); or (iv) made or permitted any
amendment or termination of any contract, agreement, or license to which
it is a party if such amendment or termination is material, considering
the business of LUCKYBULL; and
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(d)
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To
the best knowledge of LUCKYBULL, LUCKYBULL has not become subject to any
law or regulation which materially and adversely affects, or in the future
may adversely affect, the business, operations, properties, assets, or
condition of LUCKYBULL.
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Section
1.08
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Title and Related
Matters. No third party has any right to, and
LUCKYBULL has not received any notice of infringement of or conflict with
asserted rights of others with respect to, any product, technology, data,
trade secrets, know-how, proprietary techniques, trademarks, service
marks, trade names, or copyrights which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
materially adverse effect on the proposed business, operations, financial
condition, income, or business prospects of LUCKYBULL or any material
portion of its properties, assets, or rights.
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Section
1.09
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Litigation and
Proceedings. Except as otherwise provided in this
Agreement, there are no actions, suits, or proceedings pending or, to the
knowledge of LUCKYBULL after reasonable investigation, threatened by or
against LUCKYBULL or affecting LUCKYBULL or its properties, at law or in
equity, before any court or other governmental agency or instrumentality,
domestic or foreign, or before any arbitrator of any
kind. LUCKYBULL does not have any knowledge of any material
default on its part with respect to any judgment, order, injunction,
decree, award, rule, or regulation of any court, arbitrator, or
governmental agency or instrumentality or of any circumstances which,
after reasonable investigation, would result in the discovery of such a
default.
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Section
1.10
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Contracts.
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(a)
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With
the exception of the sale and purchase agreement dated 22 August
2007amended _________ entered into between the Luckybull
Shareholder and ▇▇▇▇▇ Corporation Limited, which the parties are currently
in the process of rescinding, there are no material contracts, agreements,
franchises, license agreements, debt instruments or other commitments to
which LUCKYBULL is a party or by which it or any of its assets, products,
technology, or properties are bound other than those incurred in the
ordinary course of business (as used in this Agreement, a "material"
contract, agreement, franchise, license agreement, debt instrument or
commitment is one which (i) will remain in effect for more than six (6)
months after the date of this Agreement and (ii) involves aggregate
obligations of at least Twenty-Five Thousand Dollars ($25,000), unless
otherwise disclosed pursuant to this Agreement;
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(b)
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All
contracts, agreements, franchises, license agreements, and other
commitments, if any, to which LUCKYBULL is a party and which are material
to the operations of LUCKYBULL taken as a whole are valid and enforceable
by LUCKYBULL in all material respects, except as limited by bankruptcy and
insolvency laws and by other laws affecting the rights of creditors
generally;
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(c)
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LUCKYBULL
is not a party to or bound by, and the properties of LUCKYBULL are not
subject to, any contract, agreement, other commitment or instrument; any
charter or other corporate restriction; or any judgment, order, writ,
injunction, decree, or award which materially and adversely affects, the
business operations, properties, assets, or condition of LUCKYBULL;
and
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(d)
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Except
as included or described in the LUCKYBULL Schedules, LUCKYBULL is not a
party to any oral or written (i) contract for the employment of any
officer or employee which is not terminable on thirty (30) days, or less
notice; (ii) profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan; (iii) agreement,
contract, or indenture relating to the borrowing of money; (iv) guaranty
of any obligation, other than one on which LUCKYBULL is a primary obligor,
for the borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations which, in the aggregate do
not exceed more than one (1) year or providing for payments in excess of
Twenty-Five Thousand Dollars ($25,000) in the aggregate; (v) collective
bargaining agreement; or (vi) agreement with any present or former officer
or director of LUCKYBULL.
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Section
1.11
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Material Contract
Defaults. LUCKYBULL is not in default in any
material respect under the terms of any outstanding material contract,
agreement, lease, or other commitment which is material to the business,
operations, properties, assets or condition of LUCKYBULL and there is no
event of default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which LUCKYBULL has
not taken adequate steps to prevent such a default from
occurring.
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Section
1.12
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No Conflict With Other
Instruments. The execution of this Agreement and
the consummation of the transactions contemplated by this Agreement will
not result in the breach of any term or provision of, constitute an event
of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which LUCKYBULL is a party or to which any of
its properties or operations are subject.
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Section
1.13
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Governmental
Authorizations. Except as set forth in the
LUCKYBULL Schedules, LUCKYBULL has all licenses, franchises, permits, and
other governmental authorizations that are legally required to enable it
to conduct its business in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities
and corporation laws, as hereinafter provided, no authorization, approval,
consent, or order of, or registration, declaration, or filing with, any
court or other governmental body is required in connection with the
execution and delivery by LUCKYBULL of this Agreement and the consummation
by LUCKYBULL of the transactions contemplated hereby.
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Section
1.14
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Compliance With Laws and Regulations. Except as set forth in the LUCKYBULL Schedules, to the best of its knowledge LUCKYBULL has complied with all applicable statutes and regulations of any federal, state, or other governmental entity or agency thereof, except to the extent that non-compliance would not materially and adversely affect the business, operations, properties, assets, or condition of LUCKYBULL or except to the extent that noncompliance would not result in the occurrence of any material liability for LUCKYBULL. |
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Section
1.15
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Approval of
Agreement. The Board of Directors of LUCKYBULL
has authorized the execution and delivery of this Agreement by LUCKYBULL
and has approved this Agreement and the transactions contemplated hereby,
and will recommend to the LUCKYBULL Shareholder that the Purchase Offer be
accepted by him
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Section
1.16
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Material Transactions
or Affiliations. Set forth in the LUCKYBULL
Schedules is a description, if applicable, of every contract, agreement,
or arrangement between LUCKYBULL and any predecessor and any person who
was at the time of such contract, agreement, or arrangement an officer,
director, or person owning of record, or known by LUCKYBULL to own
beneficially, five percent (5%) or more of the issued and outstanding
common shares of LUCKYBULL and which is to be performed in whole or in
part after the date hereof or which was entered into not more than three
(3) years prior to the date hereof. Except as disclosed in the LUCKYBULL
Schedules or otherwise disclosed herein, no officer, director, or five
percent (5%) shareholder of LUCKYBULL has, or has had since inception of
LUCKYBULL, any known interest, direct or indirect, in any transaction with
LUCKYBULL which was material to the business of
LUCKYBULL. There are no commitments by LUCKYBULL, whether
written or oral, to lend any funds, or to borrow any money from, or enter
into any other transaction with, any such affiliated
person.
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Section
1.17
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LUCKYBULL Schedules. LUCKYBULL
will deliver to the Company the following schedules, if such schedules are
applicable to the business of LUCKYBULL, which are collectively referred
to as the " LUCKYBULL Schedules" and which consist of separate schedules
dated as of the date of execution of this Agreement, all certified by the
chief executive officer of LUCKYBULL as complete, true, and correct as of
the date of this Agreement in all material
respects:
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(a)
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a
schedule containing complete and correct copies of the Certificate of
Incorporation and Articles of LUCKYBULL in effect as of the date of this
Agreement;
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(b)
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a
schedule containing any Corporate Resolutions of the Shareholders of
LUCKYBULL;
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(c)
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a
schedule containing Minutes of meetings of the Board of Directors of
LUCKYBULL;
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(d)
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a
schedule containing its Register of Members indicating the name and
address of each shareholder of LUCKYBULL together with the number of
shares owned by him, her or it; and
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(e)
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a
schedule setting forth any other information, together with any required
copies of documents, required to be disclosed by
LUCKYBULL.
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LUCKYBULL
shall cause the LUCKYBULL Schedules and the instruments and data delivered
to the Company hereunder to be promptly updated after the date hereof up
to and including the Closing Date.
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It
is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by
LUCKYBULL. LUCKYBULL shall have until ___________, 2007 to
provide such schedules. If LUCKYBULL cannot or fails to do so,
or if the Company acting reasonably finds any such schedules or updates
provided after the date hereof to be unacceptable according to the
criteria set forth herein, the Company may terminate this Agreement by
giving written notice to LUCKYBULL within five (5) days after the
schedules or updates were due to be produced or were
provided. For purposes of the foregoing, the Company may
consider a disclosure in the LUCKYBULL Schedules to be "unacceptable" only
if that item would have a material adverse impact on the financial
condition of LUCKYBULL, taken as a whole.
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Section
1.18
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Valid
Obligation. This Agreement and all agreements and
other documents executed by LUCKYBULL in connection herewith constitute
the valid and binding obligation of LUCKYBULL, enforceable in accordance
with its or their terms, except as may be limited by bankruptcy,
insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally and subject to the qualification that the availability of
equitable remedies is subject to the discretion of the court before which
any proceeding therefor may be
brought.
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Section
1.19
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Acquisition of the
Shares by the LUCKYBULL Shareholder. In event the Note is
not repaid, and the LUCKYBULL Shareholder acquires the Shares (as
described below under Section 3.01), such LUCKYBULL Shareholder confirms
and acknowledges that he will receive the Shares for his own account
without the participation of any other person and with the intent of
holding the Shares for investment and without the intent of participating,
directly or indirectly, in a distribution of the Shares, or any portion
thereof, and not with a view to, or for resale in connection with, any
distribution of the Shares, or any portion thereof. The
LUCKYBULL Shareholder has read, understands and has consulted with his
legal counsel regarding the limitations and requirements of Section 5 of
the 1933 Act. The LUCKYBULL Shareholder will offer, sell, pledge, convey
or otherwise transfer the Shares, or any portion thereof, only if: (i)
pursuant to an effective registration statement under the 1933 Act and any
and all applicable state securities or Blue Sky laws or in a transaction
which is otherwise in compliance with the 1933 Act and such laws; or (ii)
pursuant to a valid exemption from registration.
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Section
1.19
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Exemption from
Registration. The Purchase and the transactions
contemplated thereby, meet an exemption from registration pursuant to
Regulation S promulgated under the 1933 Act.
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ARTICLE
II
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REPRESENTATIONS,
COVENANTS, AND WARRANTIES OF THE COMPANY
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As
an inducement to, and to obtain the reliance of LUCKYBULL and the
LUCKYBULL Shareholders, except as set forth in the Company Schedules (as
hereinafter defined), the Company represents and warrants as
follows:
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Section
2.01
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Organization. The
Company is a corporation duly organized, validly existing, and in good
standing under the laws of the British Virgin Islands and has the
corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on
its business in all material respects as it is now being conducted, and
except where failure to be so qualified would not have a material adverse
effect on its business, there is no jurisdiction in which it is not
qualified in which the character and location of the assets owned by it or
the nature of the business transacted by it requires
qualification. Included in the Company Schedules are complete
and correct copies of the Memorandum and Articles of Association of the
Company as in effect on the date hereof. The execution and delivery of
this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of the Company's
Memorandum and Articles of Association. The Company has taken
all action required by law, its Memorandum and Articles of Association, or
otherwise to authorize the execution and delivery of this Agreement, and
the Company has full power, authority, and legal right and has taken all
action required by law, its Memorandum and Articles of Association, or
otherwise to consummate the transactions herein
contemplated.
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Section
2.02
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Capitalization. The
Company is authorized to issue 50,000,000 Common Shares, no par value of
which 2,500,000 shares will be issued and outstanding on the closing date
as set forth in Section 3.01(ii), as defined herein, and no preferred
shares. All issued and outstanding shares are legally issued,
fully paid, and non-assessable and not issued in violation of the
preemptive or other rights of any person.
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Section
2.03
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Subsidiaries and
Predecessor Corporations. The Company does not
have any predecessor corporation(s) or subsidiaries, and does not own,
beneficially or of record, any shares of any other
corporation.
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Section
2.04
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Financial
Condition.
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(a)
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The
Company has no liabilities with respect to the payment of any federal,
state, county, local or other taxes (including any deficiencies, interest
or penalties), except for taxes accrued but not yet due and
payable.
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(b)
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The
books and records, financial and otherwise, of the Company are in all
material aspects complete and correct and have been maintained in
accordance with good business and accounting
practices.
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Section
2.05
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Information. The
information concerning the Company set forth in this Agreement and the
Company Schedules is complete and accurate in all material respects and
does not contain any untrue statements of a material fact or omit to state
a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading. In
addition, the Company has fully disclosed in writing to LUCKYBULL (through
this Agreement or the Company Schedules) all information relating to
matters involving the Company or its assets or its present or past
operations or activities which (i) indicated or may indicate, in the
aggregate, the existence of a greater than One Thousand Dollars ($1,000)
liability or diminution in value, (ii) have led or may lead to a
competitive disadvantage on the part of the Company or (iii) either alone
or in aggregation with other information covered by this Section,
otherwise have led or may lead to a material adverse effect on the
transactions contemplated herein or on the Company, its assets, or its
operations or activities as presently conducted or as contemplated to be
conducted after the Closing Date, including, but not limited to,
information relating to governmental, employee, environmental, litigation
and securities matters and transactions with
affiliates.
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Section
2.06
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Options or
Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the
authorized and unissued shares of the Company.
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Section
2.07
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Absence of Certain
Changes or Events. Except as disclosed in
Schedule 2.07, or permitted in writing by LUCKYBULL, since the date of the
most recent Company balance sheet:
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(a)
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there
has not been (i) any material adverse change in the business, operations,
properties, assets or condition of the Company or (ii) any damage,
destruction or loss to the Company (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties,
assets or condition of the Company;
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(b)
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The
Company has not and will not (i) amend its Memorandum and Articles of
Association except to complete the performance of the Company as set forth
herein; (ii) declare or make, or agree to declare or make any payment of
dividends or distributions of any assets of any kind whatsoever to
shareholders or purchase or redeem, or agree to purchase or redeem, any of
its shares; (iii) waive any rights of value which in the aggregate are
outside of the ordinary course of business or material considering the
business of the Company; (iv) make any material change in its method of
management, operation, or accounting; (v) enter into any transaction or
agreement other than in the ordinary course of business; (vi) make any
accrual or arrangement for or payment of bonuses or special compensation
of any kind or any severance or termination pay to any present or former
officer or employee; (vii) increase the rate of compensation payable or to
become payable by it to any of its officers or directors or any of its
salaried employees whose monthly compensation exceed One Thousand Dollars
($1,000); or (viii) make any increase in any profit sharing, bonus,
deferred compensation, insurance, pension, retirement, or other employee
benefit plan, payment, or arrangement, made to, for or with its officers,
directors, or employees;
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(c)
|
The Company has not (i) granted or agreed to grant any options or warrants; (ii) borrowed or agreed to borrow any funds or incurred, or become subject to, any material obligation or liability (absolute or contingent) except liabilities incurred in the ordinary course of business; (iii) paid or agreed to pay any material obligations or liabilities (absolute or contingent) other than current liabilities reflected in or shown on the most recent Company balance sheet and current liabilities incurred since that date in the ordinary course of business and professional and other fees and expenses in connection with the preparation of this Agreement and the consummation of the transaction contemplated hereby; (iv) sold or transferred, or agreed to sell or transfer, any of its assets, properties, or rights (except assets, properties, or rights not used or useful in its business which, in the aggregate have a value of less than One Thousand Dollars ($1,000)), or canceled, or agreed to cancel, any debts or claims (except debts or claims which in the aggregate are of a value less than One Thousand Dollars ($1,000)); and (v) made or permitted any amendment or termination of any contract, agreement, or license to which it is a party if such amendment or termination is material, considering the business of the Company; and |
-8-
|
(d)
|
The
Company has not become subject to any law or regulation which materially
and adversely affects, or in the future, may adversely affect, the
business, operations, properties, assets or condition of the
Company.
|
|
Section
2.08
|
Title and Related
Matters. The Company has good and marketable
title to all of its properties, inventory, interest in properties, and
assets, real and personal, which are reflected in the most recent Company
balance sheet or acquired after that date (except properties, inventory,
interest in properties, and assets sold or otherwise disposed of since
such date in the ordinary course of business), free and clear of all
liens, pledges, charges, or encumbrances except (a) statutory liens or
claims not yet delinquent; (b) such imperfections of title and easements
as do not and will not materially detract from or interfere with the
present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in the Company
Schedules. Except as set forth in the Company Schedules, the
Company owns, free and clear of any liens, claims, encumbrances, royalty
interests, or other restrictions or limitations of any nature whatsoever,
any and all products it is currently manufacturing, including the
underlying technology and data, and all procedures, techniques, marketing
plans, business plans, methods of management, or other information
utilized in connection with the Company's business. Except as
set forth in the Company Schedules, no third party has any right to, and
the Company has not received any notice of infringement of or conflict
with asserted rights of others with respect to any product, technology,
data, trade secrets, know-how, proprietary techniques, trademarks, service
marks, trade names, or copyrights which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
materially adverse effect on the business, operations, financial
condition, income, or business prospects of the Company or any material
portion of its properties, assets, or rights.
|
|
|
Section
2.09
|
Litigation and
Proceedings. There are no actions, suits,
proceedings or investigations pending or, to the knowledge of the Company
after reasonable investigation, threatened by or against the Company or
affecting the Company or its properties, at law or in equity, before any
court or other governmental agency or instrumentality, domestic or
foreign, or before any arbitrator of any kind. The Company has
no knowledge of any default on its part with respect to any judgment,
order, writ, injunction, decree, award, rule or regulation of any court,
arbitrator, or governmental agency or instrumentality, or any circumstance
which after reasonable investigation would result in the discovery of such
default.
|
|
|
Section
2.10
|
Contracts.
|
|
(a)
|
The
Company is not a party to, and its assets, products, technology and
properties are not bound by, any material contract, franchise, license
agreement, agreement, debt instrument or other commitments whether such
agreement is in writing or oral.
|
|
|
(b)
|
All
contracts, agreements, franchises, license agreements, and other
commitments to which the Company is a party or by which its properties are
bound and which are material to the operations of the Company taken as a
whole are valid and enforceable by the Company in all respects, except as
limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally;
|
|
|
(c)
|
The
Company is not a party to or bound by, and the properties of the Company
are not subject to any contract, agreement, other commitment or
instrument; any charter or other corporate restriction; or any judgment,
order, writ, injunction, decree, or award which materially and adversely
affects, the business operations, properties, assets, or condition of the
Company; and
|
-9-
|
(d)
|
Except
as included or described in the Company Schedules or reflected in the most
recent Company balance sheet, the Company is not a party to any
oral or written (i) contract for the employment of any officer or employee
which is not terminable on thirty (30) days, or less notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance pay,
pension benefit or retirement plan, (iii) agreement, contract, or
indenture relating to the borrowing of money, (iv) guaranty of any
obligation, other than one on which the Company is a primary obligor, for
the borrowing of money or otherwise, excluding endorsements made for
collection and other guaranties of obligations which, in the aggregate do
not exceed more than one year or providing for payments in excess of
Twenty-Five Thousand Dollars ($25,000) in the aggregate; (v) collective
bargaining agreement; or (vi) agreement with any present or former officer
or director of the Company.
|
|
Section
2.11
|
Material Contract
Defaults. The Company is not in default in any
respect under the terms of any outstanding contract, agreement, lease, or
other commitment which is material to the business, operations,
properties, assets or condition of the Company and there is no event of
default in any material respect under any such contract, agreement, lease,
or other commitment in respect of which the Company has not taken adequate
steps to prevent such a default from occurring.
|
|
|
Section
2.12
|
No Conflict With Other
Instruments. The execution of this Agreement and
the consummation of the transactions contemplated by this Agreement will
not result in the breach of any term or provision of, constitute a default
under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to
which the Company is a party or to which any of its assets or operations
are subject.
|
|
|
Section
2.13
|
Governmental
Authorizations. The Company has all licenses,
franchises, permits, and other governmental authorizations, that are
legally required to enable it to conduct its business operations in all
material respects as conducted on the date hereof. Except for
compliance with federal and state securities or corporation laws, as
hereinafter provided, no authorization, approval, consent or order of, or
registration, declaration or filing with, any court or other governmental
body is required in connection with the execution and delivery by the
Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby.
|
|
|
Section
2.14
|
Compliance With Laws
and Regulations. To the best of its knowledge,
the Company has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition
of the Company or except to the extent that noncompliance would not result
in the occurrence of any material liability. This compliance
includes, but is not limited to, the filing of all reports, filings and
schedules to date with federal and state securities
authorities.
|
|
|
Section
2.15
|
Approval of
Agreement. The Board of Directors of the Company
has authorized the execution and delivery of this Agreement by the Company
and has approved this Agreement and the transactions contemplated
hereby.
|
|
|
Section
2.16
|
Material Transactions
or Affiliations. Except as disclosed herein and
in the Company Schedules, there exists no contract, agreement or
arrangement between the Company and any predecessor and any person who was
at the time of such contract, agreement or arrangement an officer,
director, or person owning of record or known by the Company to own
beneficially, five percent (5%) or more of the issued and outstanding
Common Shares of the Company and which is to be performed in whole or in
part after the date hereof or was entered into not more than three years
prior to the date hereof. Neither any officer, director, nor
five percent (5%) shareholder of the Company has, or has had since
inception of the Company, any known interest, direct or indirect, in any
such transaction with the Company which was material to the business of
the Company. The Company has no commitment, whether written or
oral, to lend any funds to, borrow any money from, or enter into any other
transaction with, any such affiliated person.
|
|
|
Section
2.17
|
The Company Schedules. Within ten (10) days following the Closing, the Company will deliver to LUCKYBULL the following schedules, which are collectively referred to as the "Company Schedules" and which consist of separate schedules, which are dated the date of this Agreement, all certified by the chief executive officer of the Company to be complete, true, and accurate in all material respects as of the date of this Agreement: |
-10-
|
(a)
|
a
schedule containing complete and accurate copies of the Memorandum and
Articles of Association of the Company as in effect as of the date of this
Agreement;
|
|
|
(b)
|
certified
list from the Company’s Transfer Agent setting forth the name and address
of each shareholder of the Company together with the number of shares
owned by him, her or it;
|
|
|
(c)
|
a
schedule containing a description of all real property owned by the
Company, together with a description of every mortgage, deed of trust,
pledge, lien, agreement, encumbrance, claim, or equity interest of any
nature whatsoever in such real property; and
|
|
|
(d)
|
copies
of all licenses, permits, and other governmental authorizations (or
requests or applications therefor) pursuant to which the Company carries
on or proposes to carry on its business (except those which, in the
aggregate, are immaterial to the present or proposed business of the
Company).
|
|
|
The
Company shall cause the Company Schedules and the instruments and data
delivered to LUCKYBULL hereunder to be promptly updated after the date
hereof up to and including the Closing Date.
|
||
|
If
the Company cannot or fails to provide the schedules required by this
Section, or if LUCKYBULL or the LUCKYBULL Shareholder find any such
schedules or updates provided after the date hereof to be unacceptable,
LUCKYBULL or the LUCKYBULL Shareholder may terminate this Agreement by
giving written notice to the Company within five (5) days after the
schedules or updates were due to be produced or were provided after which
time the Company will have an additional five days to
produce. For purposes of the foregoing, LUCKYBULL may consider
a disclosure in the Company Schedules to be "unacceptable" only if that
item would have a material adverse impact on the financial condition of
the Company, taken as a whole.
|
||
|
Section
2.18
|
Valid
Obligation. This Agreement and all agreements and
other documents executed by the Company in connection herewith constitute
the valid and binding obligation of the Company, enforceable in accordance
with its or their terms, except as may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the
court before which any proceeding therefor may be
brought.
|
|
|
Section
2.19
|
Liabilities. The
Company acknowledges that it will have no liabilities outstanding on the
Closing Date.
|
|
|
Section
2.20
|
Approval of the
Purchase by the Company’s Shareholders. The
transactions contemplated by this Agreement do not require the approval of
the Company’s shareholders.
|
|
|
Section
2.21
|
The
Directors of the Company shall have approved the Purchase Offer and the
related transactions described herein.
|
|
|
ARTICLE
III
|
||
|
PLAN
OF PURCHASE
|
||
|
Section
3.01
|
The
Purchase. (i) On the terms and subject
to the conditions set forth in this Agreement, on the Closing Date (as
defined in Section 3.02), the LUCKYBULL Shareholder shall elect to accept
the Purchase Offer described herein and shall assign, transfer and
deliver, free and clear of all liens, pledges, encumbrances, charges,
restrictions or known claims of any kind, nature, or description, the
number
of common shares of LUCKYBULL set forth herein, in the aggregate
constituting 100% of the issued and outstanding common shares of
LUCKYBULL. After the acquisition of 100% of the outstanding
shares of LUCKYBULL, LUCKYBULL shall become a wholly owned subsidiary of
the Company
|
|
-11-
|
Section 3.01
(ii)
|
The
LUCKYBULL Shareholder will receive the Note, payable within 180 days of
the date of the Closing of the Purchase, or, in the event the Note is not
paid within 180 days of the Closing of the Purchase, the LUCKYBULL
Shareholder shall receive 22,500,000 shares in the Company, representing
90% of the Company’s then outstanding shares (the
“Shares”).
|
|
|
Section
3.02
|
Closing. The
closing ("Closing") of the transaction contemplated by this Agreement
shall be on a date and at such time as the parties may agree ("Closing
Date") but not later than ________2007, subject to the right of the
Company or LUCKYBULL to extend such Closing Date by up to an additional
ten (10) days. Such Closing shall take place at a mutually agreeable time
and place. At Closing, or immediately thereafter, the following
will occur:
|
|
a)
|
The
LUCKYBULL Shareholder shall surrender the share certificates evidencing
100% of the shares of LUCKYBULL, duly endorsed with Medallion Guaranteed
share powers so as to make the Company the sole owner
thereof;
|
|
|
b)
|
The
Company will issue and deliver the Note to the LUCKYBULL
Shareholder;
|
|
|
c)
|
the
LUCKYBULL Shareholder shall deliver duly executed instruments of transfer
and bought and sold notes to the Company in respect of all the shares
exchanged pursuant to the Purchase Offer for stamping at the Inland
Revenue Department of Hong Kong; and
|
|
|
d)
|
At
the Closing, the Company, LUCKYBULL and the LUCKYBULL Shareholder shall
execute, acknowledge, and deliver (or shall ensure to be executed,
acknowledged, and delivered) any and all certificates, opinions, financial
statements, schedules, agreements, resolutions, rulings or other
instruments required by this Agreement to be so delivered at or prior to
the Closing, together with such other items as may be reasonably requested
by the parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated
hereby. Among other things, the Company shall provide an
opinion of counsel acceptable to LUCKYBULL as to such matters as LUCKYBULL
may reasonably request, which shall include, but not be limited to, a
statement, to the effect that to such counsel's best knowledge, after
reasonable investigation, from inception until the Closing Date, the
Company has complied with all applicable statutes and regulations of any
federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of the
Company or except to the extent that noncompliance would not result in the
occurrence of any material liability (such compliance including, but not
being limited to, the filing of all reports to date with federal and state
securities authorities).
|
|
Section
3.03
|
Tradability of
Shares. The Shares of the Company to be issued to the
LUCKYBULL pursuant to Section 3.01 above, in the event the Note is not
repaid by the maturity date of such Note, have not been
registered under the 1933 Act, nor registered under any state securities
law, and are "restricted securities" as that term is defined in Rule 144
under the ▇▇▇▇ ▇▇▇. The securities may not be offered for sale,
sold or otherwise transferred except pursuant to an effective registration
statement under the 1933 Act, or pursuant to an exemption from
registration under the 1933 Act. The Shares to be issued to the LUCKYBULL
Shareholder will bear the following restrictive legend:
|
|
|
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, OR
HYPOTHECATED WITHOUT EITHER: i) REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS,
OR ii) SUBMISSION TO THE CORPORATION OF AN OPINION OF COUNSEL,
SATISFACTORY TO THE CORPORATION THAT SAID SHARES AND THE TRANSFER THEREOF
ARE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933 AND APPLICABLE STATE SECURITIES LAWS.”
|
||
|
Section
3.04
|
Anti-Dilution. The
Company’s Shares issuable upon the terms and conditions of Section 3.01
shall be appropriately adjusted to take into account any other share
split, share dividend, division,
combination, recapitalization, or similar change in the Company’s Common
Shares which may occur (i) between the date of the execution of this
Agreement and the Closing
Date.
|
|
-12-
|
Section
3.05
|
Termination.
|
|
(a)
|
This
Agreement may be terminated by the Board of Directors of either the
Company or LUCKYBULL or by the LUCKYBULL Shareholder at any time prior to
the Closing Date if:
|
|
(i)
|
there
shall be any actual or threatened action or proceeding before any court or
any governmental body which shall seek to restrain, prohibit, or
invalidate the transactions contemplated by this Agreement and which, in
the judgment of such Board of Directors, made in good faith and based upon
the advice of its legal counsel, makes it inadvisable to proceed with the
Purchase;
|
|
|
(ii)
|
any
of the transactions contemplated hereby are disapproved by any regulatory
authority whose approval is required to consummate such transactions
(which does not include the Securities and Exchange Commission) or in the
judgment of such board of directors, made in good faith and based on the
advice of counsel, there is substantial likelihood that any such approval
will not be obtained or will be obtained only on a condition or conditions
which would be unduly burdensome, making it inadvisable to proceed with
the Purchase; or
|
|
(iii)
|
if
the LUCKYBULL Shareholder does not agree to the Purchase
Offer.
|
|
In
the event of termination pursuant to this paragraph, no obligation, right
or liability shall arise hereunder, and each party shall bear all of the
expenses incurred by it in connection with the negotiation, drafting, and
execution of this Agreement and the transactions herein
contemplated.
|
||
|
(b)
|
This
Agreement may be terminated by the Board of Directors of the Company at
any time prior to the Closing Date
if:
|
|
(i)
|
the Board
of Directors of the Company determines in good faith that one or more of
the Company's conditions to Closing has not occurred, through no fault of
the Company.
|
|
|
(ii)
|
The
Company takes the termination action specified in Section 1.17 as a result
of LUCKYBULL Schedules or updates thereto which the Company finds
unacceptable; or
|
|
|
(iii)
|
LUCKYBULL
shall fail to comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the representations or
warranties of LUCKYBULL contained herein shall be inaccurate in any
material respect, where such noncompliance or inaccuracy has not been
cured within ten (10) days after written notice
thereof.
|
|
If
this Agreement is terminated pursuant to this paragraph, this Agreement
shall be of no further force or effect, and no obligation, right or
liability shall arise hereunder, except that LUCKYBULL shall bear the
costs in connection with the negotiation, preparation, and execution of
this Agreement and qualifying the offer and sale of securities to be
issued in the Purchase under the registration requirements, or exemption
from the registration requirements, of state and federal securities
laws.
|
||
|
(c)
|
This
Agreement may be terminated by the Board of Directors of LUCKYBULL or by
the LUCKYBULL Shareholder at any time prior to the Closing Date
if:
|
|
(i)
|
the
Board of Directors of LUCKYBULL determines in good faith that one or more
of LUCKYBULL's conditions to Closing has not occurred, through no fault of
LUCKYBULL;
|
-13-
|
(ii)
|
LUCKYBULL
takes the termination action specified in Section 2.17 as a result of the
Company Schedules or updates thereto which LUCKYBULL finds
unacceptable;
|
|
|
(iii)
|
on
or before ___________, 2007, if LUCKYBULL notifies the Company that
LUCKYBULL's investigation pursuant to Section 4.01 below has uncovered
information which it finds unacceptable by the same criteria set forth
herein; or
|
|
|
(iv)
|
The
Company shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of the Company contained herein shall be
inaccurate in any material respect, where such noncompliance or inaccuracy
has not been cured within ten (10) days after written notice
thereof.
|
|
If
this Agreement is terminated pursuant to this paragraph, this Agreement
shall be of no further force or effect, and no obligation, right or
liability shall arise hereunder.
|
||
|
No
revenue ruling or opinion of counsel will be sought as to the tax-free
nature of the subject Purchase and such tax treatment is not a condition
to Closing herein.
|
||
|
ARTICLE
IV
|
||
|
SPECIAL
COVENANTS
|
||
|
Section
4.01
|
Access to Properties
and Records. The Company and LUCKYBULL will each
afford to the officers and authorized representatives of the other full
access to the properties, books and records of the Company or LUCKYBULL,
as the case may be, in order that each may have a full opportunity to make
such reasonable investigation as it shall desire to make of the affairs of
the other, and each will furnish the other with such additional financial
and operating data and other information as to the business and properties
of the Company or LUCKYBULL, as the case may be, as the other shall from
time to time reasonably request. Any such investigation and
examination shall be conducted at reasonable times and under reasonable
circumstances, and each party hereto shall cooperate fully
therein. No investigation by a party hereto shall, however,
diminish or waive in any way any of the representations, warranties,
covenants or agreements of the other party under this
Agreement. In order that each party may investigate as it may
wish the business affairs of the other, each party shall furnish the other
during such period with all such information and copies of such documents
concerning the affairs of it as the other party may reasonably request,
and cause its officer, employees, consultants, agents, accountants, and
attorneys to cooperate fully in connection with such review and
examination, and to make full disclosure to the other parties all material
facts affecting its financial condition, business operations, and the
conduct of operations.
|
|
|
Section
4.02
|
Delivery of Books and
Records. At the Closing, LUCKYBULL shall deliver
to the Company copies of the corporate minute books, books of account,
contracts, records, and all other books or documents of LUCKYBULL now in
the possession of LUCKYBULL or its representatives.
|
|
|
Section
4.03
|
Third Party Consents
and Certificates. The Company and LUCKYBULL agree
to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein
contemplated.
|
|
|
Section
4.04
|
Consent of LUCKYBULL
Shareholder. LUCKYBULL shall use its best efforts
to obtain the consent of the LUCKYBULL Shareholder to participate in the
Purchase.
|
|
|
Section
4.05
|
Exclusive Dealing
Rights. Until 5:00 P.M. Eastern Daylight Time on
________, 2007.
|
-14-
|
(a)
|
In
recognition of the substantial time and effort which the Company has spent
and will continue to spend in investigating LUCKYBULL and its business and
in addressing the matters related to the transactions contemplated herein,
each of which may preempt or delay other management activities, neither
LUCKYBULL, nor any of its officers, employees, representatives or agents
will directly or indirectly solicit or initiate any discussions or
negotiations with, or, except where required by fiduciary obligations
under applicable law as advised by counsel, participate in any
negotiations with or provide any information to or otherwise cooperate in
any other way with, or facilitate or encourage any effort or attempt by,
any corporation, partnership, person or other entity or group (other than
the Company and its directors, officers, employees, representatives and
agents) concerning any merger, sale of substantial assets, sale capital
shares, (including without limitation, any public or private offering of
the common shares of LUCKYBULL) or similar transactions involving
LUCKYBULL (all such transactions being referred to as " LUCKYBULL
Acquisition Transactions"). If LUCKYBULL receives any proposal
with respect to a LUCKYBULL Acquisition Transaction, it will immediately
communicate to the Company the fact that it has received such proposal and
the principal terms thereof.
|
|
|
(b)
|
In
recognition of the substantial time and effort which LUCKYBULL has spent
and will continue to spend in investigating the Company and its business
and in addressing the matters related to the transactions contemplated
herein, each of which may preempt or delay other management activities,
neither the Company, nor any of its officers, employees, representatives,
shareholders or agents will directly or indirectly solicit or initiate any
discussions or negotiations with, or, except where required by fiduciary
obligations under applicable law as advised by counsel, participate in any
negotiations with or provide any information to or otherwise cooperate in
any other way with, or facilitate or encourage any effort or attempt by,
any corporation, partnership, person or other entity or group (other than
LUCKYBULL and its directors, officers, employees, representatives and
agents) concerning any merger, sale of substantial assets, sale of capital
shares, (including without limitation, any public or private offering of
the Common Shares of the Company or similar transactions involving the
Company (all such transactions being referred to as "Company Acquisition
Transactions"). If the Company receives any proposal with
respect to a Company Acquisition Transaction, it will immediately
communicate to LUCKYBULL the fact that it has received such proposal and
the principal terms thereof.
|
-15-
| Section 4.06 |
Actions Prior to
Closing.
|
|
(a)
|
From
and after the date of this Agreement until the Closing Date and except as
set forth in the Company Schedules or LUCKYBULL Schedules or as permitted
or contemplated by this Agreement, the Company and LUCKYBULL respectively
(subject to paragraph (b) below), will
each:
|
|
(i)
|
carry
on its business in substantially the same manner as it has
heretofore;
|
|
|
(ii)
|
maintain
and keep its properties in states of good repair and condition as at
present, except for depreciation due to ordinary wear and tear and damage
due to casualty;
|
|
|
(iii)
|
maintain
in full force and effect insurance comparable in amount and in scope of
coverage to that now maintained by it;
|
|
|
(iv)
|
perform
in all material respects all of its obligations under material contracts,
leases, and instruments relating to or affecting its assets, properties,
and business;
|
|
|
(v)
|
use
its best efforts to maintain and preserve its business organization
intact, to retain its key employees, and to maintain its relationship with
its material suppliers and customers; and
|
|
|
(vi)
|
fully
comply with and perform in all material respects all obligations and duties
imposed on it by all federal and state laws and all rules, regulations,
and orders imposed by federal or state governmental
authorities.
|
-16-
|
(b)
|
From
and after the date of this Agreement until the Closing Date, neither the
Company nor LUCKYBULL will:
|
|
(i)
|
make
any changes in their Certificate of Incorporation or Memorandum and
Articles of Association, except as otherwise provided in this
Agreement;
|
|
|
(ii)
|
take
any action described in Section 1.07 in the case of LUCKYBULL, or in
Section 2.07, in the case of the Company (all except as permitted therein
or as disclosed in the applicable party's schedules);
|
|
|
(iii)
|
enter
into or amend any contract, agreement, or other instrument of any of the
types described in such party's schedules, except that a party may enter
into or amend any contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or services;
or
|
|
|
(iv)
|
sell
any assets or discontinue any operations, sell any capital shares or
conduct any similar transactions other than in the ordinary course of
business.
|
|
Section
4.07
|
Indemnification.
|
|
(a)
|
The
Company hereby agrees to indemnify LUCKYBULL and each of the officers,
agents, and directors of LUCKYBULL and the LUCKYBULL Shareholder as of the
date of execution of this Agreement against any loss, liability, claim,
damage, or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever),
to which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentation made by the Company under
this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this
Agreement.
|
|
Section
4.08
|
[Intentionally
Removed.]
|
||
|
Section
4.09
|
Indemnification of
Subsequent Corporate
Actions.
|
||
|
(a)
|
No
officer, director, controlling shareholder, agent or representative of the
Company, or any other person currently affiliated with the Company, has
offered or agreed to assist in the promotion, market making, development,
enhancement, or support of the Company’s business, capital raising, or
securities market.
|
|
|
(b)
|
LUCKYBULL
hereby represents and warrants that it will indemnify and hold harmless
any officer, director, controlling shareholder, agent or representative of
the Company, or any other person affiliated with the Company, from any
decisions, activities, or conduct of the Company contemporaneous with, or
subsequent to this Agreement, unless any such decisions, activities or
conduct were made or taken (as the case may be) in a negligent manner by
any officer, director, controlling shareholder, agent or representative of
the Company, or any other person affiliated with the
Company.
|
|
|
ARTICLE
V
|
||
|
CONDITIONS
PRECEDENT TO OBLIGATIONS OF THE COMPANY
|
||
|
The
obligations of the Company under this Agreement are subject to the
satisfaction, at or before the
Closing Date, of the following
conditions:
|
||
-17-
|
Section
5.01
|
Accuracy of
Representations and Performance of Covenants. The
representations and warranties made by LUCKYBULL in this Agreement were
true when made and shall be true at the Closing Date with the same force
and effect as if such representations and warranties were made at and as
of the Closing Date (except for changes therein permitted by this
Agreement). LUCKYBULL shall have performed or complied with all
covenants and conditions required by this Agreement to be performed or
complied with by LUCKYBULL prior to or at the Closing. The
Company shall be furnished with a certificate, signed by a duly authorized
executive officer of LUCKYBULL and dated the Closing Date, to the
foregoing effect].
|
|
|
Section
5.02
|
Officer's
Certificate. The Company shall have been
furnished with a certificate dated the Closing Date and signed by a duly
authorized officer of LUCKYBULL to the effect that no litigation,
proceeding, investigation, or inquiry is pending, or to the best knowledge
of LUCKYBULL threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this
Agreement, or, to the extent not disclosed in the LUCKYBULL Schedules, by
or against LUCKYBULL, which might result in any material adverse change in
any of the assets, properties, business, or operations of
LUCKYBULL.
|
|
|
Section
5.03
|
No Material Adverse
Change. Prior to the Closing Date, there shall
not have occurred any material change in the financial condition,
business, or operations of LUCKYBULL nor shall any event have occurred
which, with the lapse of time or the giving of notice, is determined to be
unacceptable using the criteria set forth in Section
1.17.
|
|
|
Section
5.04
|
Approval by
LUCKYBULL Shareholder. The
Purchase shall have been approved, and shares delivered in accordance with
Section 3.01, by the LUCKYBULL Shareholder.
|
|
|
Section
5.05
|
No Governmental
Prohibition. No order, statute, rule, regulation,
executive order, injunction, stay, decree, judgment or restraining order
shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits
the consummation of the transactions contemplated
hereby.
|
|
|
Section
5.06
|
Consents. All
consents, approvals, waivers or amendments pursuant to all contracts,
licenses, permits, trademarks and other intangibles in connection with the
transactions contemplated herein, or for the continued operation of the
Company and LUCKYBULL after the Closing Date on the basis as presently
operated shall have been obtained.
|
|
|
ARTICLE
VI
|
||
|
CONDITIONS
PRECEDENT TO OBLIGATIONS OF LUCKYBULL AND
THE LUCKYBULL SHAREHOLDER
|
||
|
The
obligations of LUCKYBULL and the LUCKYBULL Shareholder under this
Agreement are subject to the satisfaction, at or before the Closing Date,
of the following conditions:
|
||
|
Section
6.01
|
Accuracy of
Representations and Performance of Covenants. The
representations and warranties made by the Company in this Agreement were
true when made and shall be true as of the Closing Date (except for
changes therein permitted by this Agreement) with the same force and
effect as if such representations and warranties were made at and as of
the Closing Date. Additionally, the Company shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by the Company and shall have
satisfied all conditions set forth herein prior to or at the
Closing. LUCKYBULL shall have been furnished with a
certificate, signed by duly authorized executive officers of the Company
and dated the Closing Date, to the foregoing effect.
|
|
|
Section
6.02
|
Officer's
Certificate. LUCKYBULL shall have been furnished with a
dated
the Closing Date and signed by the duly authorized executive officer of
the Company, to the effect that no litigation, proceeding, investigation
or inquiry is pending, or to the best knowledge of the Company threatened,
which might result in an action to enjoin or prevent the consummation of
the transactions contemplated by this Agreement or, to the
extent not disclosed in the Company Schedules, by or against the Company,
which might result in any material adverse change in any of the assets,
properties or operations of the Company.
|
|
-18-
|
Section
6.03
|
No Material Adverse
Change. Prior to the Closing Date, there shall
not have occurred any change in the financial condition, business or
operations of the Company nor shall any event have occurred which, with
the lapse of time or the giving of notice, is determined to be
unacceptable using the criteria set forth in Section
2.17.
|
|
|
Section
6.04
|
No Governmental
Prohibition. No order, statute, rule, regulation,
executive order, injunction, stay, decree, judgment or restraining order
shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits
the consummation of the transactions contemplated
hereby.
|
|
|
Section
6.05
|
Consents. All
consents, approvals, waivers or amendments pursuant to all contracts,
licenses, permits, trademarks and other intangibles in connection with the
transactions contemplated herein, or for the continued operation of the
Company and LUCKYBULL after the Closing Date on the basis as presently
operated shall have been obtained.
|
|
|
Section
6.06
|
Other
Items. LUCKYBULL shall have received further
opinions, documents, certificates, or instruments relating to the
transactions contemplated hereby as LUCKYBULL may reasonably
request.
|
|
|
ARTICLE
VII
|
||
|
MISCELLANEOUS
|
||
|
Section
7.01
|
No Bankruptcy and No
Criminal Convictions. None of the Parties to the
Agreement, nor their officers, directors or affiliates, promoters,
beneficial shareholders or control persons, nor any predecessor thereof
have been subject to the following:
|
|
|
(a)
|
Any
bankruptcy or insolvency petition filed by or against any business of
which such person was a general partner or executive officer within the
past five (5) years;
|
|
|
|
|
|
|
(b)
|
Any
conviction in a criminal proceeding or being subject to a pending criminal
proceeding (excluding traffic violations and other minor
offenses);
|
|
|
|
|
|
|
(c)
|
Being
subject to any order, judgment, or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining, barring, suspending or otherwise limiting his
involvement in any type of business, securities or banking activities;
and
|
|
|
(d)
|
Being
found by a court of competent jurisdiction (in a civil action), the
Securities and Exchange Commission (the “SEC”) or the Commodity Futures
Trading Commission to have violated a federal or state securities or
commodities law, and the judgment has not been reversed, suspended, or
vacated.
|
|
|
|
|
|
Section
7.02
|
Broker/Finder’s
Fee. No broker’s or finder’s fee will be paid in
connection with the transaction contemplated by this Agreement other than
fees payable to persons registered as broker-dealers pursuant to Section
15 of the United States Securities Exchange Act of 1934. The
Company and LUCKYBULL agree that, except as set forth herein and on
Schedule 7.02 attached hereto, there were no brokers or finders involved
in bringing the parties together or who were instrumental in the
negotiation, execution or consummation of this Agreement. The
Company and LUCKYBULL each agree to indemnify the
other against any claim by any third person other than those described
above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or
understanding between the indemnifying party and such third person,
whether express or implied from the actions of the indemnifying
party.
|
-19-
|
Section
7.03
|
Governing Law and
Arbitration. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the
United States of America and, with respect to the matters of state law,
with the laws of the State of New York without giving effect to principles
of conflicts of law thereunder. All controversies, disputes or
claims arising out of or relating to this Agreement shall be resolved by
binding arbitration. The arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. All arbitrators shall possess such
experience in, and knowledge of, the subject area of the controversy or
claim so as to qualify as an “expert” with respect to such subject matter.
The governing law for the purposes of any arbitration arising hereunder
shall be in New York. The prevailing party shall be entitled to
receive its reasonable attorney’s fees and all costs relating to the
arbitration. Any award rendered by arbitration shall be final
and binding on the parties, and judgment thereon may be entered in any
court of competent jurisdiction.
|
|
|
Section
7.04
|
Notices. Any
notice or other communications required or permitted hereunder shall be in
writing and shall be sufficiently given if personally delivered to it or
sent by telecopy, overnight courier or registered mail or certified mail,
postage prepaid, addressed as
follows:
|
|
If
to the Company, to:
|
Mopie
(BVI) Limited
|
|
▇.▇.
▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
If
to LUCKYBULL, to:
|
LUCKYBULL
LIMITED
|
|
Kingston
▇▇▇▇▇▇▇▇, P. O. Box 173,
|
|
|
Road
Town, Tortola
|
|
|
British
Virgin Islands
|
|
|
With
copies to:
|
▇▇▇▇▇
▇. ▇▇▇▇
|
|
The
Loev Law Firm, PC
|
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
|
|
|
▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
or
such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given (i) upon receipt, if personally
delivered, (ii) on the day after dispatch, if sent by overnight courier,
(iii) upon dispatch, if transmitted by telecopy and receipt is confirmed
by telephone and (iv) three (3) days after mailing, if sent by registered
or certified mail.
|
||
|
Section
7.05
|
Attorney's
Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be
reimbursed by the losing party for all costs, including reasonable
attorney's fees, incurred in connection therewith and in enforcing or
collecting any judgment rendered therein.
|
|
|
Section
7.06
|
Confidentiality. Each
party hereto agrees with the other that, unless and until the transactions
contemplated by this Agreement have been consummated, it and its
representatives will hold in strict confidence all data and information
obtained with respect to another party or any subsidiary thereof from any
representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not
use such data or information or disclose the same to others, except
(i) to the extent such data or information is published, is a matter of
public knowledge, or is required by law to be published; or (ii) to the
extent that such data or information must be used or disclosed in order to
consummate the transactions contemplated by this Agreement. In
the event of the termination of this Agreement, each party shall return to
the other party all documents and other materials obtained by it or on its
behalf and shall destroy all copies, digests, work papers, abstracts or
other materials relating thereto, and each party will continue to comply
with the confidentiality provisions set forth
herein.
|
|
-20-
|
Section
7.07
|
Public Announcements
and Filings. Unless required by applicable law or
regulatory authority, none of the parties will issue any report, statement
or press release to the general public, to the trade, to the general trade
or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby)
or file any document, relating to this Agreement and the transactions
contemplated hereby, except as may be mutually agreed by the
parties. Copies of any such filings, public announcements or
disclosures, including any announcements or disclosures mandated by law or
regulatory authorities, shall be delivered to each party at least one (1)
business day prior to the release thereof.
|
|
|
Section
7.08
|
Schedules;
Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules
delivered pursuant to this Agreement.
|
|
|
Section
7.09
|
Third Party
Beneficiaries. This contract is strictly between
the Company and LUCKYBULL and the LUCKYBULL Shareholder, and, except as
specifically provided, no director, officer, shareholder (other than the
LUCKYBULL Shareholder), employee, agent, independent contractor or any
other person or entity shall be deemed to be a third party beneficiary of
this Agreement.
|
|
|
Section
7.10
|
Expenses. The
Company and LUCKYBULL each hereto agree to pay its own costs and expenses
incurred in negotiating this Agreement including legal, accounting and
professional fees, incurred in connection with the Purchase or any of the
other transactions contemplated hereby, and those costs and expenses
incurred in consummating the transactions described
herein.
|
|
|
Section
7.11
|
Entire
Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written
or oral, with respect to such subject matter.
|
|
|
Section
7.12
|
Survival;
Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two
(2) years.
|
|
|
Section
7.13
|
Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument.
|
|
|
Section
7.14
|
Amendment or
Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith,
and no waiver by any party of the performance of any obligation by the
other shall be construed as a waiver of the same or any other default
then, theretofore, or thereafter occurring or existing. At any
time prior to the Closing Date, this Agreement may by amended by a writing
signed by all parties hereto, with respect to any of the terms contained
herein, and any term or condition of this Agreement may be waived or the
time for performance may be extended by a writing signed by the party or
parties for whose benefit the provision is intended.
|
|
|
Section
7.15
|
Best
Efforts. Subject to the terms and conditions
herein provided, each party shall use its best efforts to perform or
fulfill all conditions and obligations to be performed or fulfilled by it
under this Agreement so that the transactions contemplated hereby shall be
consummated as soon as practicable. Each party also agrees that
it shall use its best efforts to take, or cause to be taken, all actions
and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective
this Agreement and the transactions contemplated
herein.
|
|
|
Section
7.16
|
Faxed
Copies. For purposes of this Agreement, a faxed
signature will constitute an
original signature.
|
|
|
Section
7.17
|
Severability. The
invalidity or unenforceability of any term, phrase, clause, paragraph,
restriction, covenant, agreement or other provision of this Agreement
shall in no way affect the validity or enforcement of any other provision
or any part thereof.
|
-21-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers, hereunto duly authorized, as of the date first-above
written.
|
MOPIE
(BVI) LIMITED
|
|
|
BY:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Director
|
|
|
LUCKYBULL
LIMITED
|
|
|
BY:
/s/ Tan ▇▇▇
▇▇▇▇
|
|
|
Tan
▇▇▇ ▇▇▇▇, President
|
|
LUCKYBULL
SHAREHOLDER:
/s/
Tan ▇▇▇ ▇▇▇▇
Tan ▇▇▇
▇▇▇▇
-22-