SHARE PURCHASE AGREEMENT by and among JINMIMI NETWORK INC. a Nevada Corporation; and HONG KONG ACTIVE CHOICE LIMITED a Hong Kong Corporation; and the Shareholders of HONG KONG ACTIVE CHOICE LIMITED Dated as of January 14, 2009
Exhibit
10.1
by and
among
a Nevada
Corporation;
and
HONG
KONG ACTIVE CHOICE LIMITED
a Hong
Kong Corporation;
and
the
Shareholders of HONG KONG
ACTIVE CHOICE LIMITED
Dated as
of January 14, 2009
STOCK
PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT,
made and entered into this 14th day of
January, 2009 (the “Agreement”), by and
among Jinmimi Network Inc., a Nevada corporation (“JINMIMI”) with its
principal executive offices at 6G, West Building, Changxing Plaza, Changxing Rd,
Nanshan District, Shenzhen, Guangdong, 518051 P.R. China; Hong Kong Active
Choice Limited (“HKAC”), a Hong Kong
Corporation with its principle places of business at Unite 8/F, Wing ▇▇▇ Comm
▇▇▇▇, ▇ ▇▇▇▇ ▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇▇, ▇▇, and the shareholders of HKAC named on the
signature page of this Agreement (individually, a “HKAC Stockholder”,
and collectively, the “HKAC
Stockholders”).
Premises
A. This
Agreement provides for the acquisition of HKAC whereby HKAC shall become a
wholly owned subsidiary of JINMIMI and in connection therewith.
B. The boards
of directors of HKAC and JINMIMI have determined, subject to the terms and
conditions set forth in this Agreement, that the transaction contemplated hereby
is desirable and in the best interests of their stockholders,
respectively. This Agreement is being entered into for the purpose of
setting forth the terms and conditions of the proposed acquisition.
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 here from, it is
hereby agreed as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
HONG
KONG ACTIVE CHOICE LIMITED
As an inducement to and to obtain the
reliance of JINMIMI, HKAC represents and warrants as follows:
Section
1.1 Organization. HKAC
is a corporation duly organized, validly existing, and in good standing under
the Hong Kong 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
jurisdiction 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 Schedules attached hereto (hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not violate any provision of HKAC's articles of incorporation or
bylaws. HKAC has full power, authority and legal right and has taken
all action required by law, its articles of incorporation, its bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
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Section
1.2 Capitalization. The
authorized Capitalization of HKAC consists of 10,000 Common Shares, HKD1.00 par
value per share and no Preferred Shares. As of the date hereof, HKAC
has 10,000 shares of common stock outstanding.
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. HKAC has no securities, warrants or options authorized
or issued.
Section
1.3 Subsidiaries. HKAC
has one subsidiary – Shenzhen Chuangding Investment Consulting Co., Ltd., a Hong
Kong Corporation (SZCD) with its registered address at Room 604, Jindi Hotel,
Shazui Road, Futian District, Shenzhen, Guangdong, P.R. China.
Section 1.4 Tax
Matters: Books and Records.
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(a) The
books and records, financial and others, of HKAC are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) HKAC
has no liabilities with respect to the payment of any country, federal,
state, county, or local taxes (including any deficiencies, interest or
penalties).
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(c) HKAC
shall remain responsible for all debts incurred by HKAC prior to the date
of closing.
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Section 1.5 Litigation and
Proceedings. There are no actions, suits, proceedings or
investigations pending or threatened by or against or affecting HKAC 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
that would have a material adverse affect on the business, operations, financial
condition or income of HKAC. HKAC is not in default with respect to
any judgment, order, writ, 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.
Section
1.6 Material Contract
Defaults. HKAC is not in default in any material 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 HKAC, and there is no event of default in any material respect
under any such contract, agreement, lease or other commitment in respect of
which HKAC has not taken adequate steps to prevent such a default from
occurring.
Section
1.7 Information. The information
concerning HKAC as set forth in this Agreement and in the attached 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.
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Section
1.8 Title and Related
Matters. HKAC has good and marketable title to and is the sole
and exclusive owner of all of its properties, inventory, interest in properties
and assets, real and personal (collectively, the “Assets”) free and clear of all
liens, pledges, charges or encumbrances. HKAC owns free and clear of
any liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized in
connection with HKAC business. No third party has any right to,
and HKAC has not received any notice of infringement of or conflict with
asserted rights of other with respect to any product, technology, data, trade
secrets, know-how, proprietary techniques, trademarks, service marks, trade
names or copyrights which, singly on in the aggregate, if the subject of an
unfavorable decision ruling or finding, would have a materially adverse affect
on the business, operations, financial conditions or income of HKAC or any
material portion of its properties, assets or rights.
Section
1.9 Contracts On
the closing date:
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(a) There
are no material contracts, agreements franchises, license agreements, or
other commitments to which HKAC is a party or by which it or any of its
properties are bound:
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(b) HKAC
is not a party to any contract, agreement, commitment or instrument or
subject to any charter or other corporate restriction or any judgment,
order, writ, injunction, decree or award materially and adversely affects,
or in the future may (as far as HKAC now foresee) materially and adversely
affect, the business, operations, properties, assets or conditions of
HKAC; and
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(c) HKAC
is not a party to any material oral or written: (I) contract for the
employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension benefit or
retirement plan, agreement or arrangement covered by Title IV of the
Employee Retirement Income Security Act, as amended;
(iii) agreement, contract or indenture relating to the
borrowing of money; (iv) guaranty of any obligation for the borrowing of
money or otherwise, excluding endorsements made for collection and other
guaranties, of obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than one year
or providing for payments in excess of $10,000 in the aggregate; (vi)
collective bargaining agreement; (vii) contract, agreement or other
commitment involving payments by it for more than $10,000 in the
aggregate.
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Section 1.10
Compliance With Laws and Regulations. To the best
of HKAC’s knowledge and belief, HKAC has complied with all applicable statutes
and regulations of any federal, state or other 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
HKAC or would not result in HKAC incurring material liability.
Section 1.11
Insurance. All of the insurable
properties of HKAC are insured for HKAC‘s benefit under valid and enforceable
policy or policies containing substantially equivalent coverage and will be
outstanding and in full force at the Closing Date.
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Section 1.12 Approval of
Agreement. The directors of HKAC have authorized
the execution and delivery of the Agreement by and have approved the
transactions contemplated hereby.
Section 1.13 Material
Transactions or Affiliations. Except as otherwise
disclosed, there are no material contracts or agreements of arrangement between
HKAC and any person, who was at the time of such contract, agreement or
arrangement an officer, director or person owning of record, or known to
beneficially own ten percent (10%) or more of the issued and outstanding Common
Shares of HKAC and which is to be performed in whole or in part after the date
hereof. HKAC has no commitment, whether written or oral, to lend any
funds to, borrow any money from or enter into material transactions with any
such affiliated person.
Section
1.14 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, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which HKAC is a
party or to which any of its properties or operations are subject.
Section 1.15 Governmental
Authorizations. HKAC has all licenses, franchises,
permits or other governmental authorizations 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
HKAC of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF
As an inducement to, and to obtain the
reliance of HKAC, JINMIMI represents and warrants as follows:
Section
2.1 Organization.
JINMIMI is a corporation duly organized, validly existing and in good standing
under the laws of Nevada 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 entity in the
country or states 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 Attached Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of JINMIMI's certificate of incorporation or
bylaws. JINMIMI has full power, authority and legal right and has
taken all action required by law, its articles of incorporation, bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
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Section
2.2 Capitalization. The
authorized Capitalization of JINMIMI consists of 100,000,000 Common Shares,
$0.0001 par value per share and 10,000,000 Preferred Shares, par value
$0.0001. As of the date of the merger agreement, there were
20,000,000 common shares outstanding.
All issued and outstanding common shares have been legally issued, fully paid,
are nonassessable and not issued in violation of the preemptive rights of any
other person. JINMIMI has no other securities, warrants or options
authorized or issued.
Section
2.3 Subsidiaries. JINMIMI
has no subsidiaries.
Section
2.4 Tax Matters; Books &
Records
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(a) The
books and records, financial and others, of JINMIMI are in all material
respects complete and correct and have been maintained in accordance with
good business accounting practices;
and
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(b) JINMIMI
has no liabilities with respect to the payment of any country, federal,
state, county, local or other taxes (including any deficiencies, interest
or penalties).
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(c) JINMIMI
shall remain responsible for all debts incurred prior to the
closing.
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Section
2.5 Information. The
information concerning JINMIMI as set forth in this Agreement and in the
attached 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.
Section 2.6 Title and Related
Matters. JINMIMI has good and marketable title to and is the
sole and exclusive owner of all of its properties, inventory, interests in
properties and assets, real and personal (collectively, the "Assets") free and
clear of all liens, pledges, charges or encumbrances. Except as set
forth in the Schedules attached hereto, JINMIMI owns free and clear of any
liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized in
connection with JINMIMI's business. Except as set forth in the
attached Schedules, no third party has any right to, and JINMIMI 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, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of JINMIMI or any material portion of
its properties, assets or rights.
Section
2.7 Litigation and
Proceedings. There are no actions, suits or proceedings pending or
threatened by or against or affecting JINMIMI, at law or in equity, before any
court or other governmental agency or instrumentality, domestic or foreign or
before any arbitrator of any kind that would have a material adverse effect on
the business, operations, financial condition, income or business prospects of
JINMIMI. JINMIMI does not have any 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.
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Section
2.8 Contracts. On
the Closing Date:
(a) There
are no material contracts, agreements, franchises, license agreements, or other
commitments to which JINMIMI is a party or by which it or any of its properties
are bound;
(b) JINMIMI
is not a party to any contract, agreement, commitment or instrument or subject
to any charter or other corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely affects, or in the
future may (as far as JINMIMI can now foresee) materially and adversely affect,
the business, operations, properties, assets or conditions of JINMIMI;
and
(c)JINMIMI
is not a party to any material oral or written: (i) contract for the
employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension, benefit or
retirement plan, agreement or arrangement covered by Title IV of the Employee
Retirement Income Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding endorsements made
for collection and other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other contract with an
unexpired term of more than one year or providing for payments in excess of
$10,000 in the aggregate; (vi) collective bargaining
agreement; (vii) contract, agreement, or other commitment involving payments by
it for more than $10,000 in the aggregate.
Section
2.9 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, or constitute an event of default under, any material
indenture, mortgage, deed of trust or other material contract, agreement or
instrument to which JINMIMI is a party or to which any of its properties or
operations are subject.
Section
2.10 Material Contract
Defaults. To the best of JINMIMI's knowledge and belief, it is
not in default in any material 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 JINMIMI, and there is
no event of default in any material respect under any such contract, agreement,
lease or other commitment in respect of which JINMIMI has not taken adequate
steps to prevent such a default from occurring.
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Section 2.11 Governmental ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇ the best of JINMIMI’s knowledge, JINMIMI 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, 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 JINMIMI of the transactions contemplated hereby.
Section
2.12 Compliance With Laws and
Regulations. To the best of JINMIMI's knowledge and belief,
JINMIMI has complied with all applicable statutes and regulations of any
federal, state or other 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 JINMIMI or would not
result in JINMIMI's incurring any material liability.
Section 2.13 Insurance. All of
the insurable properties of JINMIMI are insured for JINMIMI‘s benefit under
valid and enforceable policy or policies containing substantially equivalent
coverage and will be outstanding and in full force at the Closing
Date.
Section 2.14 Approval of Agreement. The
directors of JINMIMI have authorized the execution and delivery of the Agreement
and have approved the transactions contemplated hereby.
Section
2.15 Material Transactions or
Affiliations. As of the Closing Date, except as otherwise
disclosed, there will exist no material contract, agreement or arrangement
between JINMIMI 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
JINMIMI to own beneficially, ten percent (10%) or more of the issued and
outstanding Common Shares of JINMIMI and which is to be performed in whole or in
part after the date hereof except with regard to an agreement with the JINMIMI
shareholders providing for the distribution of cash to provide for payment of
federal and state taxes on Subchapter S income. JINMIMI has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into any other material transactions with, any such affiliated
person.
ARTICLE
III
EXCHANGE PROCEDURE AND OTHER
CONSIDERATION
Section
3.1 Share Exchange/Delivery of JINMIMI
Securities. On the Closing Date, the holders of all of the HKAC Common
Shares shall deliver to JINMIMI (i) certificates or other documents evidencing
all of the issued and outstanding HKAC Common Shares, duly endorsed in blank or
with executed power attached thereto in transferable form. On the
Closing Date, all previously issued and outstanding Common Shares of HKAC shall
be transferred to JINMIMI, so that HKAC shall become a wholly owned subsidiary
of JINMIMI.
Section
3.2 Delivery of JINMIMI Promissory
Note. In exchange for JINMIMI acquiring all of the HKAC Common
Shares tendered pursuant to Section 3.1, JINMIMI shall deliver to the HKAC
Shareholders the purchase price of $438,975 (RMB3,000,000) (the “Purchase
Price”) by delivering to the HKAC Shareholders a promissory note in the form set
forth in Exhibit “A” (the “Purchase Money Promissory Note”).
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Section
3.3 Events Prior to
Closing. Upon execution hereof or as soon thereafter as
practical, management of HKAC and JINMIMI shall execute, acknowledge and deliver
(or shall cause 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,
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, subject only to the conditions to Closing
referenced herein below.
Section
3.4 Closing. The closing
("Closing") of the transactions contemplated by this Agreement shall be January
14, 2009.
Section
3.5 Termination.
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(a) This
Agreement may be terminated by the board of directors or majority interest
of shareholders of either HKAC or JINMIMI, respectively, at any time prior
to the Closing Date if:
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(i) there
shall be any 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 on the advice of its legal
counsel, makes it inadvisable to proceed with the exchange contemplated by
this Agreement; or
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(ii) any
of the transactions contemplated hereby are disapproved by any regulatory
authority whose approval is required to consummate such
transactions.
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In the event of termination pursuant to
this paragraph (a) of this Section 3.5, 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.
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(b) This
Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of HKAC if JINMIMI 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
JINMIMI contained herein shall be inaccurate in any material respect,
which noncompliance or inaccuracy is not cured after 20 days written
notice thereof is given to JINMIMI. If this Agreement is
terminated pursuant to this paragraph (b) of this Section 3.5, this
Agreement shall be of no further force or effect and no obligation, right
or liability shall arise hereunder.
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(c) This
Agreement may be terminated at any time prior to the Closing Date by
action of the board of directors of JINMIMI if HKAC 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 HKAC
contained herein shall be inaccurate in any material respect, which
noncompliance or inaccuracy is not cured after 20 days written notice
thereof is given to HKAC. If this Agreement is terminated
pursuant to this paragraph (d) of this Section 3.5, this Agreement shall
be of no further force or effect and no obligation, right or liability
shall arise hereunder.
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In the event of termination pursuant to
paragraph (b) and (c) of this Section 3.5, the breaching party shall bear all of
the expenses incurred by the other party in connection with the negotiation,
drafting and execution of this Agreement and the transactions herein
contemplated.
Section
3.6 Directors of JINMIMI After
Acquisition. After the Closing Date, ▇▇▇▇▇ ▇▇▇▇, shall remain
the only member of the Board of Directors of JINMIMI. Each director
shall hold office until his successor shall have been duly elected and shall
have qualified or until his earlier death, resignation or removal.
Section
3.7 Officers
of JINMIMI. Upon the closing, the following persons shall
remain the officers of JINMIMI:
| NAME | OFFICE | |
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▇▇▇▇▇
▇▇▇▇
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Chief
Executive Officer, President
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Shi
Jiangkun
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Chief
Financial Officer
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Zhao
Ping
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Secretary
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ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1 Access to Properties and
Records. Prior to closing, HKAC and JINMIMI
will each afford to the officers and authorized representatives of the other
full access to the properties, books and records of each other, in order that
each may have 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 each other, as the other shall from time to time
reasonably request.
Section
4.2 Availability of Rule
144. HKAC and JINMIMI shareholders holding “restricted
securities,” as that term is defined in Rule 144 promulgated pursuant to the
Securities Act will remain as “restricted securities”. HKAC is under
no obligation to register such shares under the Securities Act, or otherwise.
The stockholders of HKAC and JINMIMI holding restricted securities of HKAC and
JINMIMI as of the date of this Agreement and their respective heirs,
administrators, personal representatives, successors and assigns, are intended
third party beneficiaries of the provisions set forth herein. The
covenants set forth in this Section 4.2 shall survive the Closing and the
consummation of the transactions herein contemplated.
Section
4.3 Special Covenants and Representations
Regarding the HKAC Common Shares to be Issued in the
Exchange. The consummation of this Agreement, including the
issuance of the HKAC Common Shares to the Shareholders of JINMIMI as
contemplated hereby, constitutes the offer and sale of securities under the
Securities Act, and applicable state statutes. Such transaction shall
be consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, inter alia, upon the
circumstances under which the JINMIMI Shareholders acquire such
securities.
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Section
4.4 Third Party
Consents. HKAC and JINMIMI agree to cooperate with each
other in order to obtain any required third party consents to this Agreement and
the transactions herein contemplated.
Section
4.5 Actions Prior and Subsequent to
Closing.
(a) From
and after the date of this Agreement until the Closing Date, except as permitted
or contemplated by this Agreement, HKAC and JINMIMI will each use its best
efforts to:
(i) 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;
(ii)
maintain in full force and effect insurance comparable in amount and in scope of
coverage to that now maintained by it;
(iii)
perform in all material respects all of its obligations under material
contracts, leases and instruments relating to or affecting its assets,
properties and business;
(b) From
and after the date of this Agreement until the Closing Date, HKAC will not,
without the prior consent of JINMIMI:
(i)
except as otherwise specifically set forth herein, make any change in its
articles of incorporation or bylaws;
(ii)
declare or pay any dividend on its outstanding Common Shares, except as may
otherwise be required by law, or effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii)
enter into or amend any employment, severance or agreements or arrangements with
any directors or officers;
(iv)
grant, confer or award any options, warrants, conversion rights or other rights
not existing on the date hereof to acquire any Common Shares; or
(v)
purchase or redeem any Common Shares.
Section 4.6 Indemnification.
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(a) HKAC
hereby agrees to indemnify JINMIMI, each of the officers, agents and
directors and current shareholders of JINMIMI as of the Closing Date
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 to or rising out of or based on any inaccuracy appearing in or
misrepresentation made in 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;
and
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(b) JINMIMI
hereby agrees to indemnify HKAC, each of the officers, agents, directors
and current shareholders of HKAC as of the Closing Date 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 in 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.
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ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF HKAC
The obligations of HKAC under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section
5.1 Accuracy of
Representations. The representations and warranties made by
HKAC 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 the Closing Date (except for changes therein permitted by this
Agreement), and HKAC shall have performed or compiled with all covenants and
conditions required by this Agreement to be performed or complied with by HKAC
prior to or at the Closing. JINMIMI shall be furnished with a
certificate, signed by a duly authorized officer of HKAC and dated the Closing
Date, to the foregoing effect.
Section
5.2 Director Approval. The
Board of Directors of HKAC shall have approved this Agreement and the
transactions contemplated herein.
Section
5.3 Officer's
Certificate. JINMIMI shall have been furnished with a certificate
dated the Closing Date and signed by a duly authorized officer of HKAC to the
effect that: (a) the representations and warranties of
HKAC set forth in the Agreement and in all Exhibits, Schedules and other
documents furnished in connection herewith are in all material respects true and
correct as if made on the Effective Date; (b) HKAC has
performed all covenants, satisfied all conditions, and complied with all other
terms and provisions of this Agreement to be performed, satisfied or complied
with by it as of the Effective Date; (c) since such date
and other than as previously disclosed to JINMIMI, HKAC has not entered into any
material transaction other than transactions which are usual and in
the ordinary course if its business; and (d) no litigation,
proceeding, investigation or inquiry is pending or, to the best knowledge of
HKAC, 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 HKAC Schedules, by or against HKAC which might
result in any material adverse change in any of the assets, properties, business
or operations of HKAC.
Section
5.4 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time or
the giving of notice, may HKAC use or create any material adverse change in the
financial condition, business or operations of HKAC.
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Section
5.5 Other
Items. JINMIMI shall have received such further documents,
certificates or instruments relating to the transactions contemplated hereby as
JINMIMI may reasonably request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF JINMIMI
The obligations of JINMIMI under this
Agreement are subject to the satisfaction, at or before the Closing date (unless
otherwise indicated herein), of the following conditions:
Section
6.1 Accuracy of Representations.
The representations and warranties made by JINMIMI 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, and
JINMIMI shall have performed and complied with all covenants and conditions
required by this Agreement to be performed or complied with by JINMIMI prior to
or at the Closing. HKAC shall have been furnished with a certificate,
signed by a duly authorized executive officer of JINMIMI and dated the Closing
Date, to the foregoing effect.
Section
6.2 Director Approval. The
Board of Directors of JINMIMI shall have approved this Agreement and the
transactions contemplated herein.
Section
6.3 Officer's
Certificate. HKAC shall be furnished with a certificate dated
the Closing date and signed by a duly authorized officer of JINMIMI to the
effect that: (a) the representations and warranties of JINMIMI set
forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; and (b) JINMIMI had performed all covenants,
satisfied all conditions, and complied with all other terms and provisions of
the Agreement to be performed, satisfied or complied with by it as of the
Effective Date.
Section
6.4 No Material Adverse
Change. Prior to the Closing Date, there shall not have
occurred any material adverse change in the financial condition, business or
operations of nor shall any event have occurred which, with the lapse of time or
the giving of notice, may cause or create any material adverse change in the
financial condition, business or operations of JINMIMI.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Brokers and
Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or 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.
Section
7.2 Law, Forum and
Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Jersey, United
States of America.
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Section
7.3 Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by prepaid telegram addressed as
follows:
If to
HKAC: Unite
8/F, Wing ▇▇▇ Comm ▇▇▇▇
▇ ▇▇▇▇
▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇
▇▇▇▇
Attention:
Legal Representative
Telephone:
If to
JINMIMI: ▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Plaza
Changxing
Rd, Nanshan District
Shenzhen,
Guangdong, 518051
P.R.
China
Attention:
Chief Executive Officer
Telephone:
With a copy
to: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & Jaclin, LLP
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
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 as of the date so delivered, mailed or
telegraphed.
Section
7.4 Attorneys' Fees. In
the event that any party institutes any action or suit to enforce this Agreement
or to secure relief from any default hereunder or breach hereof, the breaching
party or parties shall reimburse the non-breaching party or parties for all
costs, including reasonable attorneys' fees, incurred in connection therewith
and in enforcing or collecting any judgment rendered therein.
Section
7.5 Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
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 is a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
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Section
7.6 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
7.7 Third Party
Beneficiaries. This contract is solely between HKAC and JINMIMI and
except as specifically provided, no director, officer, stockholder, employee,
agent, independent contractor or any other person or entity shall be deemed to
be a third party beneficiary of this Agreement.
Section
7.8 Entire
Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of
dealing, understanding, agreements, representations or warranties, written or
oral, except as set forth herein. This Agreement may not be amended
or modified, except by a written agreement signed by all parties
hereto.
Section
7.9 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 18 months.
Section
7.10 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 7.11 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 be 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 hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section
7.12 Expenses. Each
party herein shall bear all of their respective cost s and expenses incurred in
connection with the negotiation of this Agreement and in the consummation of the
transactions provided for herein and the preparation thereof.
Section 7.13 Headings;
Context. The headings of the sections and paragraphs contained
in this Agreement are for convenience of reference only and do not form a part
hereof and in no way modify, interpret or construe the meaning of this
Agreement.
Section
7.14 Benefit. This
Agreement shall be binding upon and shall inure only to the benefit of the
parties hereto, and their permitted assigns hereunder. This Agreement
shall not be assigned by any party without the prior written consent of the
other party.
Section 7.15 Public
Announcements. Except as may be required by law, neither party
shall make any public announcement or filing with respect to the transactions
provided for herein without the prior consent of the other party
hereto.
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Section
7.16 Severability. In
the event that any particular provision or provisions of this Agreement or the
other agreements contained herein shall for any reason hereafter be determined
to be unenforceable, or in violation of any law, governmental order or
regulation, such unenforceability or violation shall not affect the remaining
provisions of such agreements, which shall continue in full force and effect and
be binding upon the respective parties hereto.
Section
7.17 Failure of Conditions;
Termination. In the event of any of the conditions specified
in this Agreement shall not be fulfilled on or before the Closing Date, either
of the parties have the right either to proceed or, upon prompt written notice
to the other, to terminate and rescind this Agreement. In such event,
the party that has failed to fulfill the conditions specified in this Agreement
will liable for the other parties legal fees. The election to proceed
shall not affect the right of such electing party reasonably to require the
other party to continue to use its efforts to fulfill the unmet
conditions.
Section
7.18 No
Strict Construction. The language of this Agreement shall be
construed as a whole, according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.1
Execution Knowing
and Voluntary. In executing this Agreement, the parties
severally acknowledge and represent that each: (a) has fully and
HKACrefully read and considered this Agreement; (b) has been or has
had the opportunity to be fully apprized by its attorneys of the legal effect
and meaning of this document and all terms and conditions hereof; (c)
is executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
Section
7.20 Amendment. At any time after the Closing
Date, this Agreement may be amended by a writing signed by both parties, 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 hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.21 Conflict of
Interest. Both JINMIMI and HKAC understand that ▇▇▇▇▇▇ &
▇▇▇▇▇▇, LLP is representing both parties in this transaction which represents a
conflict of interest. Both JINMIMI and HKAC have the right to
different counsel due to this conflict of interest. Notwithstanding
the above, both JINMIMI and HKAC agree to waive this conflict and have ▇▇▇▇▇▇
& Jaclin, LLP represent both parties in the above-referenced
transaction. Both JINMIMI and HKAC agree to hold this law firm
harmless from any and all liabilities that may occur or arise due to this
conflict.
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IN WITNESS WHEREOF, the
corporate parties hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, and entered into as of the date
first above written.
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ATTEST:
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JINMIMI NETWORK,
INC.
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______________________________ By:_______________________
President
ATTEST: HONG KONG ACTIVE CHOICE
LIMITED
______________________________ By:_______________________
President
HKAC SHAREHOLDERS:
LI XI
__________________________
SILKY ROAD INTERNATIONAL
GROUP
LIMITED,
a BVI corporation
__________________________