Split-Off Agreement STOCK PURCHASE AGREEMENT
Exhibit
2.5
Split-Off
Agreement
THIS
STOCK PURCHASE AGREEMENT (this “Agreement”), dated as
of April __, 2008, is made by and between SmartHeat Inc., a Nevada corporation
(“Seller”), and
▇▇▇▇▇ Schlombs (“Buyer”).
RECITALS
A. Seller
owns one thousand (1,000) shares of common stock, $0.001 par value per share
(the “Shares”)
of PGR Holdings, Inc., a Delaware corporation (the “Company”), which
shares constitute, as of the date hereof, all of the issued and outstanding
capital stock of the Company.
B. Buyer
holds 2,500,000 shares of common stock, $0.001 par value per share, of Seller
(the “Purchase Price
Shares”), and Buyer has agreed to transfer such shares back to Seller for
immediate cancellation (the “Repurchase”).
C. In
connection with the Repurchase, Buyer wishes to acquire from Seller, and Seller
wishes to transfer to Buyer, the Shares, upon the terms and subject to the
conditions set forth herein.
Accordingly,
the parties hereto agree as follows:
1. Purchase and Sale of
Stock.
(a) Purchased Shares.
Subject to the terms and conditions provided below, Seller shall sell and
transfer to Buyer and Buyer shall purchase from Seller, on the Closing Date (as
defined in Section 1(c)), all of the Shares.
(b) Purchase
Price. The purchase price for the Shares shall be the transfer
and delivery by Buyer to Seller of the Purchase Price Shares, deliverable as
provided in Section 2(b).
(c) Closing. The closing
of the transactions contemplated in this Agreement (the “Closing”) shall take
place contemporaneously with the execution and delivery of this
Agreement. The date on which the Closing occurs shall be referred to
herein as the Closing Date (the “Closing
Date”).
2. Closing.
(a) Transfer of Shares.
At the Closing, Seller shall deliver to Buyer certificates representing the
Shares, duly endorsed to Buyer or as directed by Buyer, which delivery shall
vest Buyer with good and marketable title to all of the issued and outstanding
shares of capital stock of the Company, free and clear of all Liens and
encumbrances.
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(b) Payment of Purchase
Price. At the Closing, Buyer shall deliver to Seller a certificate or
certificates representing the Purchase Price Shares duly endorsed to Seller,
which delivery shall vest Seller with good and marketable title to the Purchase
Price Shares, free and clear of all Liens and encumbrances.
3. Representations and
Warranties of Seller. Seller represents and warrants to Buyer as of the
date hereof as follows:
(a) Corporate Authorization;
Enforceability. The execution, delivery and performance by Seller of this
Agreement is within its corporate powers and has been, duly authorized by all
necessary corporate action on the part of Seller. This Agreement has been duly
executed and delivered by Seller and constitutes the valid and binding agreement
of Seller, enforceable against Seller in accordance with its terms, except to
the extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors’ rights generally and by general equitable
principles.
(b) Governmental
Authorization. The execution, delivery and performance by Seller of this
Agreement requires no consent, approval, Order, authorization or action by or in
respect of, or filing with, any Governmental Authority.
(c) Non-Contravention;
Consents. The execution, delivery and performance by Seller of this
Agreement and the consummation of the transactions contemplated hereby do not
(i) violate the certificate of incorporation or bylaws of Seller or (ii) violate
any applicable law or order.
4. Representations and
Warranties of Buyer. Buyer represents and warrants to Seller as of the
date hereof as follows:
(a) Enforceability. The
execution, delivery and performance by Buyer of this Agreement are within
Buyer’s powers. This Agreement has been duly executed and delivered by Buyer and
constitutes the valid and binding agreement of Buyer, enforceable against Buyer
in accordance with its terms, except to the extent that its enforceability may
be subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(b) Governmental
Authorization. The execution, delivery and performance by Buyer of this
Agreement require no consent, approval, Order, authorization or action by or in
respect of, or filing with, any Governmental Authority.
(c) Non-Contravention;
Consents. The execution, delivery and performance by Buyer of this
Agreement, and the consummation of the transactions contemplated hereby do not
violate any applicable Law or Order.
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(d) Purchase for
Investment. Buyer is financially able to bear the economic
risks of acquiring an interest in the Company and the other transactions
contemplated hereby, and have no need for liquidity in this investment. Buyer
has such knowledge and experience in financial and business matters in general,
and with respect to businesses of a nature similar to the business of the
Company, so as to be capable of evaluating the merits and risks of, and making
an informed business decision with regard to, the acquisition of the Shares.
Buyer is acquiring the Shares solely for their own account and not with a view
to or for resale in connection with any distribution or public offering thereof,
within the meaning of any applicable securities laws and regulations, unless
such distribution or offering is registered under the Securities Act of 1933, as
amended (the “Securities Act”), or
an exemption from such registration is available. Buyer has (i) received all the
information they have deemed necessary to make an informed investment decision
with respect to the acquisition of the Shares, (ii) had an opportunity to make
such investigation as she has desired pertaining to the Company and the
acquisition of an interest therein, and to verify the information which is, and
has been, made available to her and (iii) had the opportunity to ask questions
of Seller concerning the Company. Buyer has received no public solicitation or
advertisement with respect to the offer or sale of the Shares. Buyer realizes
that the Shares are “restricted securities” as that term is defined in Rule 144
promulgated by the Securities and Exchange Commission under the Securities Act,
the resale of the Shares is restricted by federal and state securities laws and,
accordingly, the Shares must be held indefinitely unless their resale is
subsequently registered under the Securities Act or an exemption from such
registration is available for their resale. Buyer understands that any resale of
the Shares by her must be registered under the Securities Act (and any
applicable state securities law) or be effected in circumstances that, in the
opinion of counsel for the Company at the time, create an exemption or otherwise
do not require registration under the Securities Act (or applicable state
securities laws). Buyer acknowledges and consents that certificates now or
hereafter issued for the Shares will bear a legend substantially as
follows:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS (THE “STATE ACTS”), HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
QUALIFICATION UNDER THE STATE ACTS OR PURSUANT TO EXEMPTIONS FROM SUCH
REGISTRATION OR QUALIFICATION REQUIREMENTS (INCLUDING, IN THE CASE OF THE
SECURITIES ACT, THE EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT
AND RULE 144 THEREUNDER). AS A PRECONDITION TO ANY SUCH TRANSFER, THE ISSUER OF
THESE SECURITIES SHALL BE FURNISHED WITH AN OPINION OF COUNSEL OPINING AS TO THE
AVAILABILITY OF EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION AND/OR SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY THERETO THAT ANY SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES LAWS.
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Buyer
understands that the Shares are being sold to her pursuant to the exemption from
registration contained in Section 4(1) of the Securities Act and that Seller is
relying upon the representations made herein as one of the bases for claiming
the Section 4(1) exemption.
(e) Liabilities. Following
the Closing, Seller will have no debts, liabilities or obligations relating to
the Company or its business or activities, whether before or after the Closing,
and there are no outstanding guaranties, performance or payment bonds, letters
of credit or other contingent contractual obligations that have been undertaken
by Seller directly or indirectly in relation to the Company or its business and
that may survive the Closing.
(f) Title to Purchase Price
Shares. Buyer is the sole record and beneficial owner of the
Purchase Price Shares. At Closing, Buyer will have good and marketable title to
the Purchase Price Shares, which Purchase Price Shares are, and at the Closing
will be, free and clear of all options, warrants, pledges, claims, Liens and
encumbrances, and any restrictions or limitations prohibiting or restricting
transfer to Seller, except for restrictions on transfer as contemplated by
applicable securities laws.
(g) Capitalization. As of
the date hereof, Seller owns the Shares, which interests represent 100% of the
authorized, issued and outstanding capital stock of the Company. The Shares are
duly authorized, validly issued, fully-paid, non-assessable and free and clear
of any Liens.
5. Indemnification and
Release.
(a) Indemnification.
Buyer covenants and agrees to indemnify, defend, protect and hold harmless
Seller, and its officers, directors, employees, stockholders, agents,
representatives and affiliates (collectively, together with Seller, the “Seller Indemnified
Parties”) at all times from and after the date of this Agreement from and
against all losses, liabilities, damages, claims, actions, suits, proceedings,
demands, assessments, adjustments, costs and expenses (including specifically,
but without limitation, reasonable attorneys’ fees and expenses of
investigation), whether or not involving a third party claim and regardless of
any negligence of any Seller Indemnified Party (collectively, “Losses”), incurred by
any Seller Indemnified Party as a result of or arising from (i) any breach of
the representations and warranties of Buyer set forth herein or in certificates
delivered in connection herewith, (ii) any breach or nonfulfillment of any
covenant or agreement on the part of Buyer under this Agreement, (iii) any debt,
liability or obligation of the Company, whether incurred or arising prior to the
date hereof or after, (iv) any debt, liability or obligation of Seller for
actions taken prior to that certain share exchange transaction by the Seller
with the shareholders of Taiyu Machinery & Electronic Equipment Co.,
Ltd (the “Share Exchange”),
including, without limitation, any amounts due or owing to any former officer,
director or Affiliate of Seller, (v) the conduct and operations of the business
of the Company whether before or after the Closing, (vi) claims asserted against
the Company whether arising before or after the Closing, or (vii) any federal or
state income tax payable by Seller and attributable to the transaction
contemplated by this Agreement or activities prior to the Share Exchange or with
respect to the Company after the Share Exchange.
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(b) Third Party
Claims.
(i) If
any claim or liability (a “Third-Party Claim”)
should be asserted against any of the Seller Indemnified Parties (the “Indemnitee”) by a
third party after the Closing for which Buyer has an indemnification obligation
under the terms of Section 5(a), then the Indemnitee shall notify Buyer (the
“Indemnitor”)
within 20 days after the Third-Party Claim is asserted by a third party (said
notification being referred to as a “Claim Notice”) and
give the Indemnitor a reasonable opportunity to take part in any examination of
the books and records of the Indemnitee relating to such Third-Party Claim and
to assume the defense of such Third-Party Claim and in connection therewith and
to conduct any proceedings or negotiations relating thereto and necessary or
appropriate to defend the Indemnitee and/or settle the Third-Party Claim. The
expenses (including reasonable attorneys’ fees) of all negotiations,
proceedings, contests, lawsuits or settlements with respect to any Third-Party
Claim shall be borne by the Indemnitor. If the Indemnitor agrees to assume the
defense of any Third-Party Claim in writing within 20 days after the Claim
Notice of such Third-Party Claim has been delivered, through counsel reasonably
satisfactory to Indemnitee, then the Indemnitor shall be entitled to control the
conduct of such defense, and shall be responsible for any expenses of the
Indemnitee in connection with the defense of such Third-Party Claim so long as
the Indemnitor continues such defense until the final resolution of such
Third-Party Claim. The Indemnitor shall be responsible for paying all
settlements made or judgments entered with respect to any Third-Party Claim the
defense of which has been assumed by the Indemnitor. Except as provided in
subsection (ii) below, both the Indemnitor and the Indemnitee must approve any
settlement of a Third-Party Claim. A failure by the Indemnitee to timely give
the Claim Notice shall not excuse Indemnitor from any indemnification liability
except only to the extent that the Indemnitor is materially and adversely
prejudiced by such failure.
(ii) If
the Indemnitor shall not agree to assume the defense of any Third-Party Claim in
writing within 20 days after the Claim Notice of such Third-Party Claim has been
delivered, or shall fail to continue such defense until the final resolution of
such Third-Party Claim, then the Indemnitee may defend against such Third-Party
Claim in such manner as it may deem appropriate and the Indemnitee may settle
such Third-Party Claim, in its sole discretion, on such terms as it may deem
appropriate. The Indemnitor shall promptly reimburse the Indemnitee for the
amount of all settlement payments and expenses, legal and otherwise, incurred by
the Indemnitee in connection with the defense or settlement of such Third-Party
Claim. If no settlement of such Third-Party Claim is made, then the Indemnitor
shall satisfy any judgment rendered with respect to such Third-Party Claim
before the Indemnitee is required to do so, and pay all expenses, legal or
otherwise, incurred by the Indemnitee in the defense against such Third-Party
Claim.
(c) Non-Third-Party
Claims. Upon discovery of any claim for which Buyer has an
indemnification obligation under the terms of this Section 5 which does not
involve a claim by a third party against the Indemnitee, the Indemnitee shall
give prompt notice to Buyer of such claim and, in any case, shall give Buyer
such notice within 30 days of such discovery. A failure by Indemnitee to timely
give the foregoing notice to Buyer shall not excuse Buyer from any
indemnification liability except to the extent that Buyer is materially and
adversely prejudiced by such failure.
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(d) Release. Buyer,
on behalf of himself and his Related Parties (as defined below), hereby releases
and forever discharges Seller and its individual, joint or mutual, past and
present representatives, Affiliates, officers, directors, employees, agents,
attorneys, stockholders, controlling persons, subsidiaries, successors and
assigns (individually, a “Releasee” and
collectively, “Releasees”) from any
and all claims, demands, proceedings, causes of action, orders, obligations,
contracts, agreements, debts and liabilities whatsoever, whether known or
unknown, suspected or unsuspected, both at law and in equity, which Buyer or any
of his Related Parties now have or have ever had against any Releasee. Buyer
hereby irrevocably covenants to refrain from, directly or indirectly, asserting
any claim or demand, or commencing, instituting or causing to be commenced, any
proceeding of any kind against any Releasee, based upon any matter released
hereby. “Related
Parties” shall mean, with respect to Buyer, (i) any Person that directly
or indirectly controls, is directly or indirectly controlled by, or is directly
or indirectly under common control with Buyer, (ii) any Person in which Buyer
holds a Material Interest or (iii) any Person with respect to which Buyer serves
as a general partner or a trustee (or in a similar capacity). For purposes of
this definition, “Material Interest”
shall mean direct or indirect beneficial ownership (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of voting securities or
other voting interests representing at least ten percent (10%) of the
outstanding voting power of a Person or equity securities or other equity
interests representing at least ten percent (10%) of the outstanding equity
securities or equity interests in a Person.
6. Definitions. As used
in this Agreement:
(a) “Affiliate” means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with the first Person. For the purposes of
this definition, “Control,” when used
with respect to any Person, means the possession, directly or indirectly, of the
power to (i) vote 10% or more of the securities having ordinary voting power for
the election of directors (or comparable positions) of such Person or (ii)
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms “Controlling” and
“Controlled”
have meanings correlative to the foregoing;
(b) “Governmental
Authority” means any domestic or foreign governmental or regulatory
authority;
(c) “Law” means any
federal, state or local statute, law, rule, regulation, ordinance, code, Permit,
license, policy or rule of common law;
(d) “Lien” means, with
respect to any property or asset, any mortgage, lien, pledge, charge, security
interest, encumbrance or other adverse claim of any kind in respect of such
property or asset. For purposes of this Agreement, a Person will be deemed to
own, subject to a Lien, any property or asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
property or asset;
(e) “Order” means any
judgment, injunction, judicial or administrative order or decree;
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(f) “Permit” means any
government or regulatory license, authorization, permit, franchise, consent or
approval; and
(h) “Person” means an
individual, corporation, partnership, limited liability company, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
7. Miscellaneous.
(a) Counterparts. This
Agreement may be signed in any number of counterparts, each of which will be
deemed an original but all of which together shall constitute one and the same
instrument.
(b) Amendments and
Waivers.
(i) Any
provision of this Agreement may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
each party to this Agreement, or in the case of a waiver, by the party against
whom the waiver is to be effective.
(ii) No
failure or delay by any party in exercising any right, power or privilege
hereunder will operate as a waiver thereof nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
will be cumulative and not exclusive of any rights or remedies provided by
Law.
(c) Successors and
Assigns. The provisions of this Agreement will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided that
no party may assign, delegate or otherwise transfer (including by operation of
Law) any of its rights or obligations under this Agreement without the consent
of each other party hereto.
(d) No Third Party
Beneficiaries. This Agreement is for the sole benefit of the parties
hereto and their permitted successors and assigns and nothing herein expressed
or implied will give or be construed to give to any Person, other than the
parties hereto, those referenced in Section 5 above, and such permitted
successors and assigns, any legal or equitable rights hereunder.
(e) Governing Law. This
Agreement will be governed by, and construed in accordance with, the internal
substantive law of the State of Nevada.
(f) Headings. The
headings in this Agreement are for convenience of reference only and will not
control or affect the meaning or construction of any provisions
hereof.
(g) Entire Agreement.
This Agreement constitutes the entire agreement among the parties with respect
to the subject matter of this Agreement. This Agreement supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter hereof of this Agreement.
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(h) Severability. If any
provision of this Agreement or the application of any such provision to any
Person or circumstance is held invalid, illegal or unenforceable in any respect
by a court of competent jurisdiction, the remainder of the provisions of this
Agreement (or the application of such provision in other jurisdictions or to
Persons or circumstances other than those to which it was held invalid, illegal
or unenforceable) will in no way be affected, impaired or invalidated, and to
the extent permitted by applicable Law, any such provision will be restricted in
applicability or reformed to the minimum extent required for such provision to
be enforceable. This provision will be interpreted and enforced to give effect
to the original written intent of the parties prior to the determination of such
invalidity or unenforceability.
[Signature
Page Follows]
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[SIGNATURE
PAGE TO STOCK PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered, effective as of the date first above
written.
SmartHeat
Inc.
By:________________________________
▇▇▇▇▇
Schlombs
Chief
Executive Officer
____________________________________
▇▇▇▇▇
Schlombs
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Schedule
2.1
Shares of Purchaser to Be
Issued to Taiyu Shareholders
|
Total
Shell Shares Outstanding Prior to Closing
|
Shell
Shares to Be Cancelled Upon Closing
|
Percentage
of Current Taiyu shareholding
|
Shell
Issues New Shares to Taiyu holders
|
Total
Post Merger Shares Outstanding
|
||||||||||||||||
|
Shareholder
Names to Appear on New Certificates
|
6,549,900 | 2,500,000 | 18,500,000 | 22,549,900 | ||||||||||||||||
|
Beijing
YSKN Machinery & Electronic Equipment Co., Ltd
|
36.80 | % | 6,808,000 | |||||||||||||||||
|
Yang
In Cheol
|
20.80 | % | 3,848,000 | |||||||||||||||||
|
ShenYang
ZhiCe Investment Co., Ltd
|
16 | % | 2,960,000 | |||||||||||||||||
|
Advantage
Consultants Ltd.
|
4.10 | % | 758,500 | |||||||||||||||||
|
Song
▇▇▇▇ ▇▇▇
|
6 | % | 1,110,000 | |||||||||||||||||
|
Dong
Xin
|
5.40 | % | 999,000 | |||||||||||||||||
|
▇▇▇▇
▇▇▇ Yun
|
5.40 | % | 999,000 | |||||||||||||||||
|
▇▇
▇▇▇
|
3.90 | % | 721,500 | |||||||||||||||||
|
Yu
Ping
|
1.60 | % | 296,000 | |||||||||||||||||
|
Total
|
100.00 | % | 18,500,000 | |||||||||||||||||
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Schedule
2.4(a)
Appointees to Board of
Directors of Purchaser Post Closing
▇▇▇
▇▇▇▇
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Schedule
2.4(b)
Officers of Purchaser Post
Closing
▇▇▇ ▇▇▇▇,
President and Chief Executive Officer
▇▇▇▇▇▇▇
▇▇▇, Chief Financial Officer
Huajun
Ai, Corporate Secretary
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Schedule
4.2
Taiyu
Shareholders
|
Beijing
YSKN Machinery & Electronic Equipment Co., Ltd
|
36.80 | % | ||
|
Yang
In Cheol
|
20.80 | % | ||
|
ShenYang
ZhiCe Investment Co., Ltd
|
16 | % | ||
|
Advantage
Consultants Ltd.
|
4.10 | % | ||
|
Song
▇▇▇▇ ▇▇▇
|
6 | % | ||
|
Dong
Xin
|
5.40 | % | ||
|
▇▇▇▇
▇▇▇ Yun
|
5.40 | % | ||
|
▇▇
▇▇▇
|
3.90 | % | ||
|
Yu
Ping
|
1.60 | % |
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Schedule
4.3
Taiyu
Capitalization
See
Schedule 4.2
E-14
Schedule
4.6
Taiyu Financial
Information
See
attached Financial Statements
E-15
Schedule
4.7
Events Subsequent to Taiyu
Balance Sheet
None
E-16
Schedule
4.8
Taiyu Tax
Matters
None
E-17
Schedule
4.10
Taiyu Real
Property
Taiyu is
located at ▇-▇, ▇▇, ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Economic and Technological Development
Zone, Shenyang City, Liaoning Province, PRC. where it has leasehold on two
buildings which include the office headquarters and primary manufacturing
facilities as well as any other significant fixed assets or special equipment.
The Company has a leasehold to use the land in Shenyang by the Municipal
administration of state-owned land through June, 2055.
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Schedule
4.15
Taiyu
Litigation
None
E-19
Schedule
4.16
Taiyu Employment Benefit
Matters
None
E-20
Schedule
4.17
Taiyu
Insurance
None
E-21
Schedule
5.2(b)
Purchaser Financial
Information
See
attached Financial Statements
E-22
Schedule
5.2(g)
Real Property Owned By
Purchaser
None
E-23
Schedule
5.2(h)
Real Property Leased by
Purchaser
None
E-24
Schedule 5.2(i)(ii)
Tangible Personal Property
Used in the Purchaser Business
But Not in Possession of
Purchaser
None
E-25
Schedule
5.2(l)
Material Contracts of
Purchaser
Stock
Purchase Agreement with ▇▇▇▇▇ Schlombs of even date herewith transferring all of
the Assets of Purchaser to Schlombs in exchange for the transfer to Purchaser of
2,500,000 shares of common stock of Purchaser held by ▇▇▇▇▇ Schlombs for
immediate cancellation.
E-26
Schedule
5.2(n)
Purchaser
Litigation
None
E-27
Schedule
5.2(p)
List of Purchaser Insurance
Policies
None
E-28
Schedule
7.3
Material Transaction Prior
to Closing
Shortform
Merger of Purchaser with SmartHeat Inc., a wholly owned subsidiary of Purchaser,
merging SmartHeat Inc, into Purchaser in order to change name of Purchaser from
Pacific Goldrim Resources, Inc. to SmartHeat Inc.