Attached files
EXCHANGE
AGREEMENT
This
EXCHANGE AGREEMENT, dated as of October 1, 2010 (the “Agreement”) by
and among G2 VENTURES, INC., a Texas corporation (“G2”), DYNAMIC ELITE
INTERNATIONAL LIMITED (“Dynamic”) and CRYSTAL GLOBE LIMITED (“Crystal
”), the sole shareholder of all the shares of common stock of
Dynamic.
WHEREAS,
Crystal owns 100% of the issued and outstanding shares of common stock, par
value $1 per share, of Dynamic (the "Dynamic Shares");
WHEREAS,
Crystal believes it is in its best interest to exchange the Dynamic Shares for
certain restricted shares of common stock of G2 and G2 believes it is in its
best interests to acquire the Dynamic Shares in exchange for its shares of
common stock, upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS,
it the intention of the parties that: (i) G2 shall acquire 100% of the Dynamic
Shares in exchange solely for the restricted shares of G2; (ii) said exchange
of shares of G2 for Dynamic Shares shall not qualify as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended (the “Code”); and (iii) said exchange shall qualify as a transaction
in securities exempt from registration or qualification under the Securities Act
of 1933, as amended and in effect on the date of this Agreement (the “Securities
Act”).
NOW,
THEREFORE, in consideration of the mutual terms, conditions and other agreements
set forth herein, the parties hereto hereby agree as follows:
ARTICLE
I
EXCHANGE
OF SHARES FOR COMMON STOCK
Section
1.1
Agreement
to Exchange Dynamic Shares for G2 Shares. On the Closing Date (as hereinafter
defined) and upon the terms and subject to the conditions set forth in this
Agreement, Crystal shall sell, assign, transfer, convey and deliver the Dynamic
Shares (representing 10,000 Dynamic Shares, par value $1 per share or 100% of
the issued and outstanding Dynamic Shares) to G2, and G2 shall accept the
Dynamic Shares from Crystal in exchange for the issuance to Crystal 15,215,426
restricted shares of common stock of G2 (the “G2 Shares”).
Section
1.2
Capitalization. On the Closing Date, immediately after
the transactions to be consummated pursuant to this Agreement, G2 shall have
authorized 200,000,000 shares of common stock, par value $.001 per share, of
which 20,000,000 shares shall be issued and outstanding, all of which are
duly authorized, validly issued and fully paid.
Section
1.3
Closing. The closing of the exchange to be
made pursuant to this Agreement (the "Closing") shall take place at 10:00 a.m.
E.D.T. on the date of this Agreement and upon the conditions to closing set
forth in Articles V and VI have been satisfied or waived, or at such other time
and date as the parties hereto shall agree in writing (the "Closing Date"), at
the offices of Sichenzia Ross Friedman Ference LLP, 61 Broadway, 32nd Floor, New York, NY 10006. At the
Closing, Crystal shall deliver to G2 the stock certificate(s) representing 100%
of the Dynamic Shares, duly endorsed in blank for transfer or accompanied by
appropriate stock powers duly executed in blank. In full consideration and
exchange for the Dynamic Shares, G2 shall issue and exchange with Crystal the G2
Shares.
Section
1.4
Tax
Treatment. The exchange
described herein is not intended to comply with Section 368(a)(1)(B) of the
Code, and all applicable regulations thereunder.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF G2
G2 hereby
represents, warrants and agrees as follows:
Section
2.1
Corporate
Organization
a. G2 is a corporation duly organized,
validly existing and in good standing under the laws of Texas, and has all
requisite corporate power and authority to own its properties and assets and to
conduct its business as now conducted and is duly qualified to do business in
good standing in each jurisdiction in which the nature of the business conducted
by G2 or the ownership or leasing of its properties makes such qualification and
being in good standing necessary, except where the failure to be so qualified
and in good standing will not have a material adverse effect on the business,
operations, properties, assets, condition or results of operation
of G2 (a "G2 Material Adverse Effect");
b. Copies of the Articles of Incorporation
and By-laws of G2, with all amendments thereto to the date hereof, have been
furnished by G2 to Crystal, and such copies are accurate and complete as of the
date hereof. The minute books of G2 are current as required by law, contain the
minutes of all meetings of the Board of Directors and shareholders of G2 from
its date of incorporation to the date of this Agreement, and adequately reflect
all material actions taken by the Board of Directors and shareholders of
G2.
Section
2.2
Capitalization of G2.
The authorized capital stock of G2 consists of (a) 200,000,000 shares
of common stock, par value $.001 per share, of which 4,784,574 shares
are issued and outstanding, all of which are duly authorized, validly issued and
fully paid. As of the date of this Agreement there are and as of the Closing
Date, there will be, no outstanding options, warrants, agreements, commitments,
conversion rights, preemptive rights or other rights to subscribe for, purchase
or otherwise acquire any shares of capital stock or any un-issued or treasury
shares of capital stock of G2.
Section
2.3
Subsidiaries
and Equity Investments. G2
has no subsidiaries or equity interest in any corporation, partnership or joint
venture.
Section
2.4
Authorization
and Validity of Agreements. G2 has all corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by G2 and the consummation by G2 of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action of G2, and no other corporate proceedings on the part of G2 are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby.
Section 2.5
No Conflict
or Violation. The
execution, delivery and performance of this Agreement by G2 does not and will
not violate or conflict with any provision of its Articles of Incorporation or
By-laws, and does not and will not violate any provision of law, or any order,
judgment or decree of any court or other governmental or regulatory authority,
nor violate or result in a breach of or constitute (with due notice or lapse of
time or both) a default under, or give to any other entity any right of
termination, amendment, acceleration or cancellation of, any contract, lease,
loan agreement, mortgage, security agreement, trust indenture or other agreement
or instrument to which G2 is a party or by which it is bound or to which any of
their respective properties or assets is subject, nor will it result in the
creation or imposition of any lien, charge or encumbrance of any kind whatsoever
upon any of the properties or assets of G2, nor will it result in the
cancellation, modification, revocation or suspension of any of the licenses,
franchises, permits to which G2 is bound.
Section
2.6
Consents
and Approvals. No consent,
waiver, authorization or approval of any governmental or regulatory authority,
domestic or foreign, or of any other person, firm or corporation, is required in
connection with the execution and delivery of this Agreement by G2 or the
performance by G2 of its obligations hereunder.
Section
2.7
Absence of
Certain Changes or Events.
Since its inception:
a. G2 has operated in the ordinary course
of business consistent with past practice and there has not been any material
adverse change in the assets, properties, business, operations, prospects, net
income or condition, financial or otherwise of G2. As of the date of this
Agreement, G2 does not know or have reason to know of any event, condition,
circumstance or prospective development which threatens or may threaten to have
a material adverse effect on the assets, properties, operations, prospects, net
income or financial condition of G2;
b. there has not been any declaration,
setting aside or payment of dividends or distributions with respect to shares of
capital stock of G2 or any redemption, purchase or other acquisition of any
capital stock of G2 or any other of G2’s securities;
and
c. there has not been an increase in the
compensation payable or to become payable to any director or officer of
G2.
Section
2.8 Disclosure. This Agreement and any certificate
attached hereto or delivered in accordance with the terms hereby by or on behalf
of G2 in connection with the transactions contemplated by this Agreement, when
taken together, do not contain any untrue statement of a material fact or omit
any material fact necessary in order to make the statements contained herein
and/or therein not misleading.
Section
2.9 Survival. Each of the representations and
warranties set forth in this Article II shall be deemed represented and made by
G2 at the Closing as if made at such time and shall survive the Closing for a
period terminating on the second anniversary of the date of this
Agreement.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF DYNAMIC AND CRYSTAL
Dynamic
and Crystal, jointly and severally, represent, warrant and agree as
follows:
Section
3.1
Corporate
Organization.
a. Dynamic is a newly-formed corporation.
It is duly organized, validly existing and in good standing under the laws of
the British Virgin Islands and has all requisite corporate power and authority
to own its properties and assets and to conduct its business as now conducted
and is duly qualified to do business in good standing in each jurisdiction in
where the nature of the business conducted by Dynamic or the ownership or
leasing of its properties makes such qualification and being in good standing
necessary, except where the failure to be so qualified and in good standing will
not have a material adverse effect on the business, operations, properties,
assets, condition or results of operation of Dynamic (a "Dynamic
Material Adverse Effect").
b. Copies of the Certificate of
Incorporation and By-laws of Dynamic, with all amendments thereto to the date
hereof, have been furnished to G2, and such copies are accurate and complete as
of the date hereof. The minute books of Dynamic are current as required by law,
contain the minutes of all meetings of the Board of Directors and shareholders
of Dynamic, and committees of the Board of Directors of Dynamic from the date of
incorporation to the date of this Agreement, and adequately reflect all material
actions taken by the Board of Directors, shareholders and committees of the
Board of Directors of Dynamic.
Section
3.2
Capitalization
of Dynamic; Title to the Dynamic Shares. On the Closing Date, immediately
before the transactions to be consummated pursuant to this Agreement, Dynamic
shall have authorized Fifty Thousand (50,000) Dynamic Shares, of which 10,000
Dynamic Shares will be issued and outstanding. The Dynamic Shares are the sole
outstanding shares of capital stock of Dynamic, and there are no outstanding
options, warrants, agreements, commitments, conversion rights, preemptive rights
or other rights to subscribe for, purchase or otherwise acquire any shares of
capital stock or any un-issued or treasury shares of capital stock of
Dynamic.
Section
3.3
Subsidiaries
and Equity Investments; Assets. As of the date hereof and on the
Closing Date, except for Tianjian Junhe Enterprise Management Consulting Co.,
Ltd, a PRC wholly-foreign owned entity, Dynamic does not and will not directly
or indirectly, own any shares of capital stock or any other equity interest in
any entity or any right to acquire any shares or other equity interest in any
entity and Dynamic does not and will not have any assets or
liabilities.
Section 3.4
Authorization and Validity
of Agreements. Dynamic has all corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Dynamic and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action and no other
corporate proceedings on the part of Dynamic are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. Crystal has
approved this Agreement and no other stockholder approvals are required to
consummate the transactions contemplated hereby.
Section
3.5
No Conflict
or Violation. The
execution, delivery and performance of this Agreement by Dynamic and Crystal do
not and will not violate or conflict with any provision of the constituent
documents of Dynamic, and do not and will not violate any provision of law, or
any order, judgment or decree of any court or other governmental or regulatory
authority, nor violate, result in a breach of or constitute (with due notice or
lapse of time or both) a default under or give to any other entity any right of
termination, amendment, acceleration or cancellation of any contract, lease,
loan agreement, mortgage, security agreement, trust indenture or other agreement
or instrument to which Dynamic or Crystal is a party or by which it/her is bound
or to which any of its respective properties or assets is subject, nor result in
the creation or imposition of any lien, charge or encumbrance of any kind
whatsoever upon any of the properties or assets of Dynamic or Crystal, nor
result in the cancellation, modification, revocation or suspension of any of the
licenses, franchises, permits to which Dynamic or Crystal is
bound.
Section
3.6
Investment
Representations. (a) The
G2 Shares will be acquired hereunder solely for the account of Crystal, for
investment, and not with a view to the resale or distribution thereof. Crystal
understands and is able to
bear any economic risks associated with its investment in the G2 Shares. G2 has
had full access to all the information G2 considers necessary or
appropriate to make an informed investment decision with respect to the G2
Shares to be acquired under this Agreement. Crystal further has had an
opportunity to ask questions and receive answers from G2’s directors regarding
G2 and to obtain additional information (to the extent G2’s directors possessed
such information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to Crystal or to which Crystal had
access. Crystal (as such term is hereinafter defined) is an
“accredited investor” (as such term is defined in Rule 501(a) of Regulation D
promulgated by the Securities and Exchange Commission under the Securities
Act).
(b) No
offer to enter into this Agreement has been made by G2 to Crystal in the United
States. At the times of the offer and execution of this Agreement, Crystal was
domiciled outside the United States.Crystal, nor any affiliate of Crystal, nor
any person acting on behalf of Crystal or on behalf of any such affiliate, has
engaged or will engage in any activity undertaken for the purpose of, or that
reasonably could be expected to have the effect of, conditioning the markets in
the United States for the G2 Shares, including, but not limited to, effecting
any sale or short sale of securities through Crystal or any affiliate
of Crystal prior to the expiration of any restricted period contained
in Regulation S promulgated under the Securities Act (any such activity being
defined herein as a “Directed Selling Effort”). To the best knowledge of
Crystal, this Agreement and the transactions contemplated herein are not part of
a plan or scheme to evade the registration provisions of the Securities Act, and
the G2 Shares are being acquired for investment purposes by Crystal. Crystal
agrees that all offers and sales of the G2 Shares from the date hereof and
through the expiration of the any restricted period set forth in Rule 903 of
Regulation S (as the same may be amended from time to time hereafter) shall not
be made to U.S. Persons or for the account or benefit of U.S. Persons and shall
otherwise be made in compliance with the provisions of Regulation S and any
other applicable provisions of the Securities Act. Neither Crystal nor the
representatives of Crystal have conducted any Directed Selling Effort
as that term is used and defined in Rule 902 of Regulation S and Crystal will
not engage in any such Directed Selling Effort within the United States through
the expiration of any restricted period set forth in Rule 903 of Regulation
S.
Section
3.7
Brokers’
Fees. Neither Dynamic nor Crystal has any
liability to pay any fees or commissions or other consideration to any broker,
finder, or agent with respect to the transactions contemplated by this
Agreement.
Section
3.8
Disclosure. This Agreement, the schedules hereto
and any certificate attached hereto or delivered in accordance with the terms
hereby by or on behalf of Dynamic or Crystal in connection with the
transactions contemplated by this Agreement, when taken together, do not contain
any untrue statement of a material fact or omit any material fact necessary in
order to make the statements contained herein and/or therein not
misleading.
Section
3.8
Survival. Each of the representations and
warranties set forth in this Article III shall be deemed represented and made by
Dynamic and Crystal at the Closing as if made at such time and shall survive the
Closing for a period terminating on the second anniversary of the date of this
Agreement.
ARTICLE
IV
COVENANTS
Section
4.1
Certain
Changes and Conduct of Business.
a. From and after the date of this
Agreement and until the Closing Date, G2 shall conduct its business solely in
the ordinary course consistent with past practices and, in a manner consistent
with all representations, warranties or covenants of G2, and without the prior
written consent of Crystal will not, except as required or permitted
pursuant to the terms hereof:
|
|
i.
|
make any material change in the
conduct of its businesses and/or operations or enter into any transaction
other than in the ordinary course of business consistent with past
practices;
|
|
|
ii.
|
make any change in its Articles
of Incorporation or By-laws; issue any additional shares of capital stock
or equity securities or grant any option, warrant or right to acquire any
capital stock or equity securities or issue any security convertible into
or exchangeable for its capital stock or alter in any material term of any
of its outstanding securities or make any change in its outstanding shares
of capital stock or its capitalization, whether by reason of a
reclassification, recapitalization, stock split or combination, exchange
or readjustment of shares, stock dividend or
otherwise;
|
|
|
iii.
|
A.
|
incur, assume or guarantee any
indebtedness for borrowed money, issue any notes, bonds, debentures or
other corporate securities or grant any option, warrant or right to
purchase any thereof, except pursuant to transactions in the ordinary
course of business consistent with past practices;
or
|
|
|
B.
|
issue any securities convertible
or exchangeable for debt or equity securities
of G2;
|
|
|
iv.
|
make any sale, assignment,
transfer, abandonment or other conveyance of any of its assets or any part
thereof, except pursuant to transactions in the ordinary course of
business consistent with past
practice;
|
|
|
v.
|
subject any of its assets, or any
part thereof, to any lien or suffer such to be imposed other than such
liens as may arise in the ordinary course of business consistent with past
practices by operation of law which will not have an G2 Material Adverse
Effect;
|
|
|
vi.
|
acquire any assets, raw materials
or properties, or enter into any other transaction, other than in the
ordinary course of business consistent with past
practices;
|
|
|
vii.
|
enter into any new (or amend any
existing) employee benefit plan, program or arrangement or any new (or
amend any existing) employment, severance or consulting agreement, grant
any general increase in the compensation of officers or employees
(including any such increase pursuant to any bonus, pension,
profit-sharing or other plan or commitment) or grant any increase in the
compensation payable or to become payable to any employee, except in
accordance with pre-existing contractual provisions or consistent with
past practices;
|
|
|
viii.
|
make or commit to make any
material capital
expenditures;
|
|
|
ix.
|
pay, loan or advance any amount
to, or sell, transfer or lease any properties or assets to, or enter into
any agreement or arrangement with, any of its
affiliates;
|
|
|
x.
|
guarantee any indebtedness for
borrowed money or any other obligation of any other
person;
|
|
|
xi.
|
fail to keep in full force and
effect insurance comparable in amount and scope to coverage maintained by
it (or on behalf of it) on the date
hereof;
|
|
|
xii.
|
take any other action that would
cause any of the representations and warranties made by it in this
Agreement not to remain true and correct in all material
aspect;
|
|
|
xiii.
|
make any material loan, advance
or capital contribution to or investment in any
person;
|
|
|
xiv.
|
make any material change in any
method of accounting or accounting principle, method, estimate or
practice;
|
|
|
xv.
|
settle, release or forgive any
claim or litigation or waive any
right;
|
|
|
xvi.
|
commit itself to do any of the
foregoing.
|
b. From
and after the date of this Agreement, Dynamic will:
|
|
1.
|
continue to maintain, in all
material respects, its properties in accordance with present practices in
a condition suitable for its current
use;
|
|
|
2.
|
file, when due or required,
federal, state, foreign and other tax returns and other reports required
to be filed and pay when due all taxes, assessments, fees and other
charges lawfully levied or assessed against it, unless the validity
thereof is contested in good faith and by appropriate proceedings
diligently conducted;
|
|
|
3.
|
continue to conduct its business
in the ordinary course consistent with past
practices;
|
|
|
4.
|
keep its books of account,
records and files in the ordinary course and in accordance with existing
practices; and
|
|
|
5.
|
continue to maintain existing
business relationships with
suppliers.
|
Section
4.2
Access to
Properties and Records.
Dynamic shall afford G2’s accountants, counsel and authorized
representatives, and G2 shall afford to Dynamic’s accountants, counsel and
authorized representatives full access during normal business hours throughout
the period prior to the Closing Date (or the earlier termination of this
Agreement) to all of such parties’ properties, books, contracts, commitments and
records and, during such period, shall furnish promptly to the requesting party
all other information concerning the other party's business, properties and
personnel as the requesting party may reasonably request, provided that no
investigation or receipt of information pursuant to this Section 4.2 shall
affect any representation or warranty of or the conditions to the obligations of
any party.
Section
4.3
Negotiations. From and after the date hereof until
the earlier of the Closing or the termination of this Agreement, no party to
this Agreement nor its officers or directors (subject to such director's
fiduciary duties) nor anyone acting on behalf of any party or other persons
shall, directly or indirectly, encourage, solicit, engage in discussions or
negotiations with, or provide any information to, any person, firm, or other
entity or group concerning any merger, sale of substantial assets, purchase or
sale of shares of capital stock or similar transaction involving any party. A
party shall promptly communicate to any other party any inquiries or
communications concerning any such transaction which they may receive or of
which they may become aware of.
Section
4.4
Consents
and Approvals. The parties
shall:
|
|
i.
|
use their reasonable commercial
efforts to obtain all necessary consents, waivers, authorizations and
approvals of all governmental and regulatory authorities, domestic and
foreign, and of all other persons, firms or corporations required in
connection with the execution, delivery and performance by them of this
Agreement; and
|
|
|
ii.
|
diligently assist and cooperate
with each party in preparing and filing all documents required to be
submitted by a party to any governmental or regulatory authority, domestic
or foreign, in connection with such transactions and in obtaining any
governmental consents, waivers, authorizations or approvals which may be
required to be obtained connection in with such
transactions.
|
Section
4.5 Public
Announcement. Unless
otherwise required by applicable law, the parties hereto shall consult with each
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and shall not issue any such press release or
make any such public statement prior to such
consultation.
Section
4.6
Stock
Issuance. From and after
the date of this Agreement until the Closing Date, neither G2 nor Dynamic shall
issue any additional shares of its capital stock.
Section
4.7
Notwithstanding anything to the
contrary contained herein, it is herewith understood and agreed that both G2 and
Dynamic may enter into and conclude agreements and/or financing transactions as
same relate to and/or are contemplated by any separate written agreements
either: (a) annexed hereto as exhibits; or (b) entered into by G2 with Dynamic
executed by both parties subsequent to the date hereof. These Agreements shall
become, immediately upon execution, part of this Agreement and subject to all
warranties, representations and conditions contained herein.
ARTICLE
V
CONDITIONS
TO OBLIGATIONS OF DYNAMIC AND CRYSTAL
The
obligations of Dynamic and Crystal to consummate the transactions contemplated
by this Agreement are subject to the fulfillment, at or before the Closing Date,
of the following conditions, any one or more of which may be waived by both
Dynamic and Crystal in their sole discretion:
Section
5.1
Representations
and Warranties of G2. All
representations and warranties made by G2 in this Agreement shall be true and
correct on and as of the Closing Date as if again made by G2 as of such
date.
Section
5.2
Agreements
and Covenants. G2 shall
have performed and complied in all material respects to all agreements and
covenants required by this Agreement to be performed or complied with by it on
or prior to the Closing Date.
Section
5.3
Consents
and Approvals. Consents,
waivers, authorizations and approvals of any governmental or regulatory
authority, domestic or foreign, and of any other person, firm or corporation,
required in connection with the execution, delivery and performance of this
Agreement shall be in full force and effect on the Closing
Date.
Section
5.4
No
Violation of Orders. No
preliminary or permanent injunction or other order issued by any court or
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, which declares this
Agreement invalid in any respect or prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition
of G2 shall be in effect; and no action or proceeding before any
court or governmental or regulatory authority, domestic or foreign, shall have
been instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this
Agreement.
Section
5.5
Other
Closing Documents. Dynamic
and Crystal shall have received such other certificates, instruments and
documents in confirmation of the representations and warranties of G2
or in furtherance of the transactions contemplated by this Agreement as Dynamic,
Crystal or its counsels may reasonably request.
ARTICLE
VI
CONDITIONS
TO OBLIGATIONS OF G2
The
obligations of G2 to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing Date, of the
following conditions, any one or more of which may be waived by G2 in its sole
discretion:
Section
6.1
Representations
and Warranties of Dynamic.
All representations and warranties made by Dynamic in this Agreement shall be
true and correct on and as of the Closing Date as if again made by Dynamic on
and as of such date.
Section
6.2
Agreements
and Covenants. Dynamic
shall have performed and complied in all material respects to all agreements and
covenants required by this Agreement to be performed or complied with by it on
or prior to the Closing Date.
Section
6.3
Consents
and Approvals. All
consents, waivers, authorizations and approvals of any governmental or
regulatory authority, domestic or foreign, and of any other person, firm or
corporation, required in connection with the execution, delivery and performance
of this Agreement, shall have been duly obtained and shall be in full force and
effect on the Closing Date.
Section
6.4
No
Violation of Orders. No
preliminary or permanent injunction or other order issued by any court or other
governmental or regulatory authority, domestic or foreign, nor any statute,
rule, regulation, decree or executive order promulgated or enacted by any
government or governmental or regulatory authority, domestic or foreign, that
declares this Agreement invalid or unenforceable in any respect or which
prevents the consummation of the transactions contemplated hereby, or which
materially and adversely affects the assets, properties, operations, prospects,
net income or financial condition of Dynamic, taken as a whole, shall be in
effect; and no action or proceeding before any court or government or regulatory
authority, domestic or foreign, shall have been instituted or threatened by any
government or governmental or regulatory authority, domestic or foreign, or by
any other person, or entity which seeks to prevent or delay the consummation of
the transactions contemplated by this Agreement or which challenges the validity
or enforceability of this Agreement.
Section
6.5.
Other
Closing Documents. G2
shall have received such other certificates, instruments and documents in
confirmation of the representations and warranties of Dynamic or in
furtherance of the transactions contemplated by this Agreement as G2 or its
counsel may reasonably request.
ARTICLE
VII
TERMINATION
AND ABANDONMENT
SECTION
7.1 Methods of
Termination. This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time before the Closing:
a. By the mutual written consent of
Crystal, G2 and Dynamic;
b. By G2, upon a material breach of any
representation, warranty, covenant or agreement on the part of Crystal or
Dynamic set forth in this Agreement, or if any representation or warranty
of Dynamic or Crystal shall become untrue, in either case such that
any of the conditions set forth in Article VI hereof would not be satisfied (an
"Dynamic Breach"), and such breach shall, if capable of cure, has not been cured
within ten (10) days after receipt by the party in breach of a notice from the
non-breaching party setting forth in detail the nature of such
breach;
c. By Dynamic, upon a material breach of
any representation, warranty, covenant or agreement on the part of G2 set forth
in this Agreement, or, if any representation or warranty of G2 shall
become untrue, in either case such that any of the conditions set forth in
Article V hereof would not be satisfied (a "G2 Breach"), and such
breach shall, if capable of cure, not have been cured within ten (10) days after
receipt by the party in breach of a written notice from the non-breaching party
setting forth in detail the nature of such breach;
d. By either G2 or Dynamic, if the Closing
shall not have consummated before ninety (90) days after the date hereof;
provided, however, that this Agreement may be extended by written notice of
either G2 or Dynamic, if the Closing shall not have been consummated as a result
of G2 or Dynamic having failed to receive all required regulatory approvals or
consents with respect to this transaction or as the result of the entering of an
order as described in this Agreement; and further provided, however, that the
right to terminate this Agreement under this Section 7.1(d) shall not be
available to any party whose failure to fulfill any obligations under this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur on or before this date.
e. By either Dynamic or G2 if a court of
competent jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any other
action (which order, decree or ruling the parties hereto shall use its best
efforts to lift), which permanently restrains, enjoins or otherwise prohibits
the transactions contemplated by this Agreement.
Section
7.2 Procedure
Upon Termination. In the
event of termination and abandonment of this Agreement by G2 or Dynamic pursuant
to Section 7.1, written notice thereof shall forthwith be given to the other
parties and this Agreement shall terminate and the transactions contemplated
hereby shall be abandoned, without further action. If this Agreement is
terminated as provided herein, no party to this Agreement shall have any
liability or further obligation to any other party to this Agreement; provided,
however, that no termination of this Agreement pursuant to this Article VII
shall relieve any party of liability for a breach of any provision of this
Agreement occurring before such termination.
ARTICLE
VIII
POST-CLOSING
AGREEMENTS
Section
8.1 Consistency
in Reporting. Each party
hereto agrees that if the characterization of any transaction contemplated in
this agreement or any ancillary or collateral transaction is challenged, each
party hereto will testify, affirm and ratify that the characterization
contemplated in such agreement was the characterization intended by the party;
provided, however, that nothing herein shall be construed as giving rise to any
obligation if the reporting position is determined to be incorrect by final
decision of a court of competent jurisdiction.
ARTICLE
IX
MISCELLANEOUS
PROVISIONS
Section
9.1 Survival of
Provisions. The respective
representations, warranties, covenants and agreements of each of the parties to
this Agreement (except covenants and agreements which are expressly required to
be performed and are performed in full on or before the Closing Date) shall
survive the Closing Date and the consummation of the transactions contemplated
by this Agreement, subject to Sections 2.9, 3.8 and 8.2. In the event of a
breach of any of such representations, warranties or covenants, the party to
whom such representations, warranties or covenants have been made shall have all
rights and remedies for such breach available to it under the provisions of this
Agreement or otherwise, whether at law or in equity, regardless of any
disclosure to, or investigation made by or on behalf of such party on or before
the Closing Date.
Section
9.2 Publicity. No party shall cause the publication
of any press release or other announcement with respect to this Agreement or the
transactions contemplated hereby without the consent of the other parties,
unless a press release or announcement is required by law. If any such
announcement or other disclosure is required by law, the disclosing party agrees
to give the non-disclosing parties prior notice and an opportunity to comment on
the proposed disclosure.
Section
9.3 Successors
and Assigns. This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors and assigns; provided, however, that no party
shall assign or delegate any of the obligations created under this Agreement
without the prior written consent of the other parties.
Section
9.4 Fees and
Expenses. Except as
otherwise expressly provided in this Agreement, all legal and other fees, costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fees, costs or
expenses.
Section
9.5 Notices. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been given or made if in writing and delivered personally or sent by registered
or certified mail (postage prepaid, return receipt requested) to the parties at
the following addresses:
If to
Dynamic or Crystal, to:
P.O.
Box 957, Offshore Incorporations Centre
Road
Town, Tortola, British Virgin Islands
If to G2,
to:
G2
Ventures, Inc.
16th Floor,
Tianjin Global Zhiye Square,
309 Nanjing Road
Nankai
District, Tianjin, PRC 300100
or to
such other persons or at such other addresses as shall be furnished by any party
by like notice to the others, and such notice or communication shall be deemed
to have been given or made as of the date so delivered or mailed. No change in
any of such addresses shall be effective insofar as notices under this Section
9.5 are concerned unless such changed address is located in the United States of
America and notice of such change shall have been given to such other party
hereto as provided in this Section 9.5
Section
9.6 Entire
Agreement. This Agreement,
together with the exhibits hereto, represents the entire agreement and
understanding of the parties with reference to the transactions set forth herein
and no representations or warranties have been made in connection with this
Agreement other than those expressly set forth herein or in the exhibits,
certificates and other documents delivered in accordance herewith. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the subject matter of this Agreement and all prior drafts of this Agreement, all
of which are merged into this Agreement. No prior drafts of this Agreement and
no words or phrases from any such prior drafts shall be admissible into evidence
in any action or suit involving this Agreement.
Section
9.7 Severability. This Agreement shall be deemed
severable, and the invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of this Agreement or of
any other term or provision hereof. Furthermore, in lieu of any such invalid or
unenforceable term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms to such
invalid or unenforceable provision as may be possible so as to be valid and
enforceable.
Section
9.8 Titles and
Headings. The Article and
Section headings contained in this Agreement are solely for convenience of
reference and shall not affect the meaning or interpretation of this Agreement
or of any term or provision hereof.
Section
9.9 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
Section
9.10 Convenience
of Forum; Consent to Jurisdiction. The parties to this Agreement, acting
for themselves and for their respective successors and assigns, without regard
to domicile, citizenship or residence, hereby expressly and irrevocably elect as
the sole judicial forum for the adjudication of any matters arising under or in
connection with this Agreement, and consent and subject themselves to the
jurisdiction of, the courts of the State of New York located in County of New
York, and/or the United States District Court for the Southern District of New
York, in respect of any matter arising under this Agreement. Service of process,
notices and demands of such courts may be made upon any party to this Agreement
by personal service at any place where it may be found or giving notice to such
party as provided in Section 9.5.
Section
9.11 Enforcement
of the Agreement. The
parties hereto agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereto, this
being in addition to any other remedy to which they are entitled at law or in
equity.
Section
9.12 Governing
Law. This Agreement shall
be governed by and interpreted and enforced in accordance with the laws of the
State of New York without giving effect to the choice of law provisions
thereof.
Section
9.13 Amendments
and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by all
of the parties hereto.. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
G2
VENTURES, INC.
|
By:
|
/s/ Jinghe Zhang
|
|
Jinghe
Zhang
|
|
|
Title:
Chief Executive Officer
|
|
DYNAMIC
ELITE INTERNATIONAL LIMITED
|
By:
|
/s/ Lionel Evan Liu
|
|
Name:
Lionel Evan Liu
|
|
|
Title:
Director
|
|
CRYSTAL
GLOBE LIMITED
|
By:
|
/s/ Lionel Evan Liu
|
|
Name:
Lionel Evan Liu
|
|
|
Title:
Director
|
|