Attached files
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (herein, together with all
Exhibits, "Agreement") is entered into as of January 19, 2011 by and
between Global Arena Holding Subsidiary Corp., a Delaware corporation
("Global Arena") and China Stationery and Office Supply, Inc., a
Delaware corporation ("China Stationery").
This Agreement sets forth the terms and conditions upon which Global
Arena will merge with and into China Stationery (the "Merger"),
pursuant to an Agreement and Plan of Merger (the "Merger Agreement") in
substantially the form attached hereto as Exhibit A, which provides,
among other things, for the conversion and exchange of all outstanding
shares of $.0001 par value common stock of Global Arena ("Global Arena
Stock") into eighteen million (18,000,000) shares of voting $.0001 par
value common stock of China Stationery ("China Stationery Common
Stock") (together, the "Merger Consideration").
The parties intend the merger to qualify as a tax-free reorganization
under Section 368 of the Internal Revenue Code of 1986, as amended (the
"Code")
In consideration of the mutual promises and covenants contained
herein, China Stationery and Global Arena agree as follows:
ARTICLE 1
Definitions
As used in this Agreement, the following terms (whether used in
singular or plural forms) shall have the following meanings:
"Charter Documents" shall mean the Articles or Certificate of
Incorporation and the Bylaws of the applicable corporation.
"Closing" means the delivery and execution of all monies, common
stock, agreements, consents, exhibits and any other documents to and
from all parties.
"Contract" means any written contract, mortgage, deed of trust,
bond, indenture, lease, license, note, franchise, certificate, option,
warrant, right, or other instrument, document or agreement, and any
oral obligation, right or agreement.
"GAAP" means generally accepted accounting principles, as that
term is defined by the Institute of Certified Public Accountants under
the first standard of reporting under its generally accepted accounting
standards.
"Income Tax" means any federal, state, local or foreign Tax or
Taxes (i) based upon, measured by, or calculated with respect to, net
income or net receipts, proceeds or profits, or (ii) based upon,
measured by, or calculated with respect to multiple bases (including,
but not limited to, corporate franchise or occupation Taxes, if such
Tax may be based upon, measured by, or calculated with respect to one
or more bases described in (i) above.
"Income Tax Return" includes all Tax Returns relating to Income
Taxes.
"Intellectual Property" means (i) patents, patent applications
and statutory invention registrations, in each case in the United
States and all other countries, (ii) any trademarks, service marks,
trade dress, logos, trade names, corporate names, and other source
identifiers, including any registrations and applications for
registration of any of the foregoing in the United States and any
foreign country, (iii) all rights under the copyright laws of the
United States and all other countries, including, without limitations,
all copyrightable works, copyrights, and registrations and applications
for registration thereof, and (iv) all confidential and proprietary
information, including trade secrets and know-how.
"Knowledge" of China Stationery of or with respect to any matter
means that any of the executive officers, directors of China Stationery
has, or after due inquiry and investigation would have, actual
awareness or knowledge of such matter, and "Knowledge" of Global Arena
of or with respect to any matter means that any of the executive
officers, directors of Global Arena has, or after due inquiry and
investigation would have, actual awareness or knowledge of such matter.
"Legal Requirements" means applicable common law and any statute,
ordinance, code or other law, rule, regulation, order, technical or
other standard, requirement, judgment, or procedure enacted, adopted,
promulgated, applied or followed by any governmental authority,
including Judgments.
"Lien" means any security agreement, financing statement filed
with any governmental authority, conditional sale statement filed with
any governmental authority, conditional sale or other title retention
agreement, any lease, consignment or bailment given for purposes of
security, any lien, mortgage, indenture, pledge, option, encumbrance,
adverse interest, constructive trust or other trust, claim, attachment,
exception to or defect in title or other ownership interest (including
but not limited to reservations, rights of entry, possibilities of
reverter, encroachments, easement, rights-of-way, restrictive covenants
leases and licenses) of any kind, which otherwise constitutes an
interest in or claim against property, whether arising pursuant to any
Legal Requirement, Contract or otherwise.
"Software" of a party means all material computer software owned,
controlled or licensed by or on behalf of such party and used,
manufactured, distributed, sold, licensed or marketed by such party.
"Stockholders Group" means any affiliated group" (a defined in
Section 1504(a) of the Code without regard to the limitations contained
in Section 1504(b) of the Code) that includes the stockholders or any
predecessor of or successor to the stockholders (or another such
predecessor or successor).
"Surviving Corporation" means China Stationery and Office Supply,
Inc.
"Tax" (including, with correlative meaning, the terms "Taxes" and
Taxable") includes all federal, state, local and foreign income tax,
profits, franchise, gross receipts, environmental, customs duty,
capital stock, communications services, severance, stamp, payroll,
sales, employment, unemployment, disability, use, property,
withholding, excise, production, value added, occupancy and other
taxes, duties or assessments of any nature whatsoever, together with
all interest, penalties and additions imposed with respect to such
amounts and any interest in respect to such penalties and additions,
and includes any liability for taxes of another person by contract, as
a transferee or successor, under Treasury Regulation Section 1.1502-6
or analogous state, local, or foreign law provision, or otherwise.
"Tax Return" includes all returns and reports (including
elections, declarations, disclosures, schedules, estimates and
information returns) required to be supplied to a Tax authority
relating to Taxes.
"Treasury Regulations" means the regulations prescribed under the
Code.
ARTICLE 2
Merger
Section 2.1 Merger. Subject to the terms and conditions contained
in this Agreement, Global Arena will be merged by statutory merger with
and into China Stationery pursuant to the Merger Agreement at a Closing
at the Effective Time of the Merger as defined in the Merger Agreement.
In the Merger, each share of Global Arena outstanding immediately prior
to the effective time of the Merger will be converted into and
exchanged for 1.5 common shares of China Stationery Common Stock.
Section 2.2 Name Change. The name of the Surviving Corporation
shall be amended to be Global Arena Holding Corp.
Section 2.3 Reverse Stock Split. China Stationery shall effectuate a
1 for 20 reserve stock split on its issuance and outstanding common
shares. As a result, at the time of the Merger, there shall only be
four hundred nine thousand, five hundred twenty four (409,524) common
shares issued and outstanding in China Stationery.
Section 2.4 The Closing.
Subject to the terms of this Agreement, the Closing of the transactions
contemplated hereby (the "Closing") shall take place at the offices of
Global Arena at such time and date as the parties may mutually agree
(the "Closing Date"). Notwithstanding the foregoing, for purposes of
allocating profits and/or losses of China Stationery only, the
effective date for change of control shall be deemed to be February 19,
2011.
Prior to Closing, all instruments and documents shall be held in escrow
with Jody M. Walker, Attorney At Law as escrow agent.
At the Closing, China Stationery shall deliver to Global Arena:
The Merger Consideration (as defined in Section 2.1)
China Stationery's Certificates referred to in Section 6.1(d);
Such other instruments and documents, in form and substance reasonably
acceptable to Global Arena, as may be necessary to affect the Closing.
At the Closing, Global Arena shall deliver to China Stationery:
Global Arena's Certificate referred to in Section 6.2(d);
The stockholder certificates evidencing common shares of Global Arena;
A certified copy of the "Charter Documents" of Global Arena, and a good
standing certificate for Global Arena issued by the Secretary of State
of the State of Delaware; and
Such other instruments and documents, in form and substance reasonably
acceptable to Global Arena, as may be necessary to affect the Closing.
Section 2.5 Warrants in Global Arena. The warrant holders in Global
Arena shall agree to exchange such Warrants and any rights attached
thereto for warrants of comparable value in China Stationery There
are currently Series A warrants to purchase one million, eight hundred
thirty two thousand, seven hundred fifty (1,832,750) common shares at
exercise prices ranging from $.46 to $1.00 per common share and Series
B warrants to purchase one million, eight hundred thirty two thousand,
seven hundred fifty (1,832,750) common shares at exercise prices
ranging from $.52 to $1.00 per common share.
Section 2.6 Mechanics for Closing Merger. At the Closing, each
party shall execute and deliver, or cause to be executed and delivered
to the other party, all monies, common stock, documents and
instruments, in form and substance satisfactory as reasonably required
to carry out or evidence the terms of this Agreement. Upon the
approval of the shareholders of Global Arena and China Stationery, the
executed Articles of Merger shall be filed with the Delaware Secretary
of State.
Section 2.7 Certificate of Incorporation of the Surviving
Corporation. At the "Effective Date" of the Merger, the Charter
Documents of China Stationery as in effect immediately prior to the
Effective Date shall be the Charter Documents of the Surviving
Corporation.
Section 2.8 Bylaws of the Surviving Corporation. At the Effective
Date of the Merger, the bylaws of China Stationery, as in effective
immediately prior to the Effective Date, shall be the bylaws of the
Surviving Corporation.
Section 2.9 Further Assurances. At or after the Closing, Global
Arena, at the request of China Stationery, shall promptly execute and
deliver, or cause to be executed and delivered, to China Stationery all
such documents and instruments, in form and substance satisfactory to
China Stationery, as China Stationery reasonably may request in order
to carry out or evidence the terms of this Agreement.
ARTICLE 3
Representations and Warranties of Global Arena
Global Arena represents and warrants to China Stationery that the
statements contained in Article 3 are true and complete and will be
correct and complete, as of the date of this Agreement and as of
Closing, as follows:
Section 3.1 Organization and Qualification of Global Arena. Global
Arena is duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all requisite
corporate power and authority to carry on its business as it is now
being conducted. Global Arena is duly qualified to do business and is
in good standing as a foreign corporation in all jurisdictions where
the nature of the property owned or leased by it, or the nature of the
business conducted by it, makes such qualification necessary and the
absence of such qualification would, individually or in the aggregate,
have a Material Adverse Effect (as hereinafter defined). The term
"Material Adverse Effect" means any adverse change or effect that when
taken individually or together with all other adverse changes an
effects, is or is reasonably likely to be materially adverse to the
business, operations, results of operations or financial condition of
Global Arena.
Section 3.2 Authority. Global Arena has all requisite corporate
power and authority to execute, deliver and perform this Agreement.
The execution, delivery and performance of this Agreement by Global
Arena have been duly and validly authorized by all necessary action on
the part of Global Arena. This Agreement has been duly and validly
executed and delivered by Global Arena, and is a valid and binding
obligation of Global Arena, enforceable against Global Arena in
accordance with its terms.
Section 3.3 Ownership and Number of Shares of Global Arena Stock.
The shareholders listed on Exhibit 3.3 own all of the issued and
outstanding shares the Global Arena Stock, beneficially and of record,
free and clear of all liens. The Global Arena Stock is not subject to,
or bound or affected by, any proxies, voting agreements, or other
restrictions on the incidents of ownership hereof. There are not, and
will not be at Closing more than twelve million (12,000,000)
outstanding common shares.
Section 3.4 Subsidiaries. Except as disclosed on Exhibit 3.4,
Global Arena does not control or hold direct or indirect equity
interests in, or hold rights to control or acquire direct or indirect
equity interests in, any corporation.
Section 3.5 Capitalization of Global Arena. The authorized capital
stock of Global Arena consists of fifteen million (15,000,000) shares
of common stock $.00001 par value per share, of which twelve million
(12,000,000) shares are validly issued and outstanding, fully paid and
non-assessable. There are Series A warrants to purchase up to one
million, eight hundred thirty two thousand, seven hundred fifty
(1,832,750) common shares at exercise prices ranging from $.46 to $1.00
per common share and Series B warrants to purchase up to one million,
eight hundred thirty two thousand, seven hundred fifty (1,832,750)
common shares at exercise prices ranging from $.52 to $1.00 per common
share. There are no other authorized or outstanding subscriptions,
options, convertible securities, warrants, calls or other rights of any
kind issued or granted by, or binding upon, Global Arena to purchase or
otherwise acquire any securities of or equity interest in Global Arena.
All of the issued and outstanding shares of Global Arena were issued in
compliance with all applicable state and federal securities laws, and
shall remain free from any encumbrances or Liens.
Section 3.6 No Conflicts; Required Consents. The execution,
delivery and performance by Global Arena of this Agreement will not:
conflict with or violate any provision of the articles or Charter
Documents of Global Arena;
- violate any Legal Requirements;
- result in the creation or imposition of any Lien against or upon
the Global Arena Stock or any of the assets or properties owned or
leased by Global Arena; or
- require any consent, approval, or authorization of, or filing of
any certificate, notice, application, report or other document with,
any governmental authority or other person.
Section 3.7 Litigation. Other than disclosed in Exhibit 3.7, there
is no litigation pending or, to Global Arena's knowledge, threatened,
by or before any governmental authority or private arbitration
tribunal, against Global Arena or its operations, nor, to Global
Arena's knowledge, is there any basis for any such litigation.
Section 3.8 Compliance with Applicable Legal Requirements. Conduct
by Global Arena of its activities as currently conducted does not
violate or infringe any Legal Requirements currently in effect, or, to
the knowledge of Global Arena, proposed to become effective; and Global
Arena has received no notice of any violation by Global Arena of any
Legal Requirements applicable to Global Arena or its activities as
currently conducted; and Global Arena knows of no basis for the
allegation of any such violation.
Section 3.9 Financial Statements. Global Arena will deliver to
China Stationery the audited financial statements from inception to
December 31, 2010 (the "Financial Statements"). The Financial
Statements will be prepared in accordance with GAAP and present fairly
the financial position of Global Arena as of the date indicated.
Section 3.10 Liabilities. Global Arena has no liabilities or
obligations, whether absolute, accrued, contingent or otherwise, that
are not reflected in the Financial Statements or non-delinquent
obligations for ordinary and recurring expenses, including in the
ordinary course of business of Global Arena since the date of the
Financial Statements.
Section 3.11 Taxes. Except as set forth in Exhibit 3.11(a), all Tax
Returns required to be filed by or with respect to Global Arena have
been properly and timely filed and all such Tax Returns are complete
and accurate in all material respects. Except to the extent reserved
or reflected against on the Financial Statements, all Taxes due with
respect to such Tax Returns or which are otherwise due and payable by
Global Arena have been paid in full. All Taxes required to be
withheld and paid over by Global Arena to any relevant Tax authority in
connection with payments to employees, independent contractors,
creditors, stockholders or to third parties have been so withheld and
paid over.
Except as set forth in Exhibit 3.11(b):
- no Tax authority in a jurisdiction where Global Arena does not
file Tax Returns has made a written claim, assertion or threat that
Global Arena is or may be subject to tax in such jurisdiction;
- no deficiencies for any tax have been threatened, proposed,
asserted or assessed against Global Arena that have not been satisfied;
- no audits or examinations with respect to Global Arena are
ongoing or have been threatened or proposed, in writing by the Internal
Revenue Service or the appropriate state, local or foreign Tax
authority;
- no waivers or extensions of statutes of limitation with respect
to Taxes have been given by or requested with respect to Global Arena;
- there are no Tax rulings, requests for rulings, closing
agreements relating to Global Arena that could affect the liability for
Taxes of Global Arena for any period (or portion of a period) after the
Closing; and
- no power of attorney has been granted by Global Arena with
respect to any matter relating to Taxes of Global Arena that is
currently in force.
Global Arena is not a party to or liable to under any tax sharing
agreement with respect to taxes of any consolidated, combined or
unitary group other than the consolidated, combined or unitary group
disclosed in Exhibit 3.11(c). Except as set forth in Exhibit 3.11(c),
Global Arena has not with respect to any taxable period for which the
applicable statute of limitations has not run, filed a combined
consolidated or unitary tax return with respect to any jurisdictions
(foreign and domestic) in which Global Arena has filed income tax
returns for taxable periods ending on or December 31, 2009. Global
Arena will not, in the absence of a closing agreement provided for in
the Treasury Regulations under Section 1503 of the Internal Revenue
Code of 1986. (the "Code"), trigger the recapture of any dual
consolidated losses (as defined in Section 1503 of the Code) by virtue
of the transactions contemplated by this Agreement.
There are no tax liens on any assets of Global Arena, except liens for
taxes not yet due and payable.
Section 3.12 Absence of Certain Changes or Events. Except as set
forth in Exhibit 3.12, since the date of the Financial Statements there
has not occurred:
(a) any material and adverse change in the financial condition
or operations of Global Arena;
(b) any damage, destruction or loss to or of any of the
material assets or properties owned or leased by Global Arena;
(c) the creation or attachment of any Lien against the capital
stock of Global Arena;
(d) any waiver, release, discharge, transfer, or cancellation
by Global Arena of any rights or claims of material value;
(e) any issuance by Global Arena of any securities, or any
merger or consolidation of Global Arena with any other Person, or any
acquisition by Global Arena of the business of any other Person;
(f) any incurrence, assumption or guarantee by Global Arena of
any indebtedness or liability;
(g) any declaration, setting aside or payment by Global Arena
of any dividends on, or any other distribution with respect to, any
capital stock of Global Arena or any repurchase, redemption, or other
acquisition of any capital stock of Global Arena;
(h) (A) any payment of any bonus, profit sharing, pension or
similar payment or arrangement or special compensation to any employee
of Global Arena, except in the ordinary course of the business of
Global Arena, or (B) any material increase in the compensation payable
or to become payable to any employee of Global Arena; or
(i) the entry by Global Arena into any Contract to do any of
the foregoing.
Section 3.13 Material Global Arena Contracts. As of the date of
this Agreement, Global Arena does not have except as disclosed in
Exhibit 3.13:
(a) contracts evidence or evidencing or relating to any
liabilities or obligations of Global Arena, whether absolute, accrued,
contingent or otherwise, or granting any Person a Lien or against any
properties or assets owned or leased by Global Arena;
(b) joint venture or partnership Contracts between Global Arena
and any other person;
(c) Contracts limiting the management of Global Arena to engage
in or to compete in any activity, or to use or disclose any information
in its possession;
(d) any other Contracts to which Global Arena is a party or by
which it or the assets or properties owned or leased by it are bound or
affected that are not set forth on other Exhibits hereto, which in the
aggregate contemplate payments to or by Global Arena exceeding $50,000
in any twelve-month period (collectively herein as the "Material Global
Arena Contract"). Global Arena has delivered to China Stationery true
and complete copies of each of the Material Global Arena Contracts,
including any amendments thereto or, in the case of oral Material
Global Arena Contracts, a written description and representation that
the contract is valid, in full force and effect and enforceable in
accordance with its terms against the parties thereto other than Global
Arena, and Global Arena has fulfilled when due, or has taken all action
necessary to enable it to fulfill when due, all of its obligations
thereunder);
(e) there has not occurred any default (without regard to lapse
of time, the giving of notice, or the election of any person other than
Global Arena, or any combination thereof) by Global Arena, nor, to the
knowledge of Global Arena, has there occurred any default (without
regard to lapse of time, the giving of notice, or the election of
Global Arena, or any combination thereof) by any other person, under
any of the Material Global Arena Contracts; and
(f) to the knowledge of Global Arena, there is no other person
in arrears in the performance or satisfaction of its obligations under
any of the Material Global Arena Contracts, and no waiver has been
granted by any of the parties thereto.
Section 3.14 Assets and Properties.
(a) Global Arena has good title to all of the material tangible
personal assets and properties which it purports to own (including
those reflected on the Financial Statement, except for assets and
properties sold, consumed or otherwise disposed of in the ordinary
course of business since the date of the Financial Statements, which
are not individually or in the aggregate material), free and clear of
all Encumbrances, except as set forth in Exhibit 3.14(a) and (b) liens
for taxes not yet due and payable or due but not delinquent or being
contested in good faith by appropriate proceedings. Except as set
forth in Exhibit 3.14(a), the assets owned or leased by Global Arena
constitute all the assets used in and necessary to conduct the business
as currently conducted.
(b) All material tangible property and assets owned or utilized by
Global Arena are in good operating condition and repair (except for
ordinary wear and tear), free from any defects (except such minor
defects as do not interfere with the use thereof in the conduct of the
normal operations), have been maintained consistent with the standards
generally followed in the industry and are sufficient to carry on the
business as presently conducted. All buildings, plants and other
structures owned or otherwise utilized by Global Arena are in good
condition and repair (except for ordinary wear and tear) in all
material respects.
(c) Global Arena owns no real property.
(d) Exhibit 3.14(d) sets forth a list of all real property leased by
Global Arena (the "Leased Real Property"). Global Arena has made
available to Global Arena true and complete copies of all leases and
subleases relating to the Leased Real Property. With respect to the
Leased Real Property:
Global Arena has good and valid leasehold estates in the Leased Real
Property, free and clear of all Encumbrances; and
- all existing water, sewer, gas, electricity, telephone and other
utilities required for the construction, use, occupancy, operation and
maintenance of the Leased Real Property are adequate in all material
respects for the use, occupancy, operation and maintenance thereof, as
currently conducted or currently exists. Except as set forth on
Exhibit 3.14(d),
- each such lease or sublease is legal, valid, binding and
enforceable and in full force and effect, and the consummation of the
transactions contemplated by this Agreement will not cause a material
breach under any such lease or sublease.
(e) Except as set forth on Exhibit 3.14(d):
(i) Global Arena has not received written notice of any pending
or threatened condemnation or eminent domain proceedings or their local
equivalent with respect to the Leased Real Property;
(ii) the Leased Real Property, the use and occupancy thereof by
Global Arena, and the conduct of the business thereon and therein does
not violate any deed restrictions, applicable law consisting of
building codes, zoning, subdivision or other land use or similar laws
the violation of which would materially adversely affect the use, value
or occupancy of any such property or the conduct of the business
thereon;
Global Arena has received, written notice of a material violation of
the restrictions or laws described in the foregoing clause (ii); and
none of the structures or improvements on any of the Leased Real
Property encroaches upon real property of another person or entity, and
no structure or improvement of another person or entity encroaches upon
any of the Leased Real Property, which would materially interfere with
the use thereof in the ordinary course of business.
Section 3.15 Books and Records. All of the books, records and
accounts of Global Arena are in all material respects true and
complete, are maintained in accordance with good business practice and
all applicable Legal Requirements, accurately present and reflect in
all material respects all of the transactions therein described, and
are reflected accurately in the Financial Statements. Global Arena has
previously delivered to Global Arena the complete stock record book of
Global Arena and true and complete copies of all of the minutes of
meetings and all other corporate actions of the stockholders, Board of
Directors and committees of the Board of Directors of Global Arena
since the date of its incorporation.
Section 3.16 Certain Interests. None of Global Arena or its
officers, directors, or holders of ten percent (10%) or more of Global
Arena Common Stock, directly or indirectly is, or owns any interest in,
or controls, or is an employee, officer, director or partner of or
participant in, or consultant to, any person that is a competitor,
supplier or customer of Global Arena.
Section 3.17 Bank Accounts. Exhibit 3.17 sets forth all bank
accounts, brokerage accounts, and safe deposit boxes of any kind
maintained by Global Arena and, in each case, identifies the persons
that are authorized signatories for, or which are authorized to have
access to, each of them.
Section 3.18 Changes in Circumstances. Global Arena has no
knowledge of:
- any current or future condition or state of facts or
circumstances which could reasonably be expected to result in a
material and adverse change in the financial condition of operations of
Global Arena; or
- any Legal Requirements currently in effect from which Global
Arena currently is, or any currently proposed Legal Requirements from
which Global Arena would be, exempt by reason of any "grandfather"
clauses or provisions contained therein, but which would be applicable
to Global Arena following closing.
Section 3.19 Intellectual Property.
(a) Exhibit 3.19(a) sets forth a true and complete list of all
Software, registered U.S. and foreign patents and patent applications,
registered U.S. and foreign trademark applications, registered U.S. and
foreign copyrights and copyright applications and other Intellectual
Property (as hereinafter defined), in each case owned by Global Arena
and material to the business of Global Arena ("Global Arena Owned
Intellectual Property"),
- licenses for the Software licensed to Global Arena or by Global
Arena to a third party (as hereinafter defined), in each case that are
material to the business of Global Arena ("Global Arena Licensed
Intellectual Property"), and
- all Software and Intellectual Property that is licensed by Global
Arena to a third party ("Third Party Licensed Intellectual Property").
(b) To the knowledge of Global Arena, the conduct of the business of
Global Arena as currently conducted does not infringe or misappropriate
the Intellectual Property rights of any third party, and no claim has
been asserted against Global Arena that the conduct of the business of
Global Arena as currently conducted infringes or may infringe or
misappropriate the Intellectual Property rights of any third party.
(c) With respect to each item of Global Arena Owned Intellectual
Property, Global Arena is the sole owner of the entire right, title and
interest in and to such Intellectual Property and without limitation of
the foregoing is entitled to use such Intellectual Property in the
continued operation of its business.
(d) With respect to each item of Global Arena Licensed Intellectual
Property, Global Arena has the right to use such Global Arena Licensed
Intellectual Property in the continued operation of its business in
accordance with the terms of the license agreement governing such
Global Arena Licensed Intellectual Property.
(e) To the knowledge of Global Arena, Global Arena Owned Intellectual
Property is valid and enforceable, and has not been adjudged invalid or
unenforceable in whole or part.
(f) To the knowledge of Global Arena, no person is engaging in any
activity that infringes upon Global Arena Owned Intellectual Property.
(g) To the knowledge of Global Arena, each license of Global Arena
Licensed Intellectual Property and Third Party Licensed Intellectual
Property is valid and enforceable, is binding on all parties to such
license, and is in full force and effect.
(h) To the knowledge of Global Arena, neither party to any license of
Global Arena Licensed Intellectual Property nor any Third Party
Licensed Intellectual Property is in breach thereof or default
thereunder.
(i) The Software of Global Arena is free of all viruses, worms,
trojan horses and other material known contaminants, and does not
contain any bugs, errors, or problems of a material nature that disrupt
its operation or have an adverse impact on the operation of other
software programs or operating systems.
(j) No rights in the Software of Global Arena have been transferred
to any third party except to the customers of Global Arena to whom
Global Arena has licensed the right to use all Software in the ordinary
course of business.
(k) Global Arena has the right to use all software development tools,
library functions, compilers, and other third party software that is
material to the business of Global Arena, or that is required to
operate or modify the Software of Global Arena.
Section 3.20 Commitments.
(a) Exhibit 3.20(a) sets forth, as of the date hereof, each contract
or agreement, whether written or oral (including any and all amendments
thereto), to which Global Arena is a party, or by which Global Arena is
bound (collectively, the "Commitments") of the following types:
(i) Commitments for the sale of any real or personal (tangible
or intangible) properties other than in the ordinary course of
business, or for the grant of any option or preferential rights to
purchase any such properties;
(ii) Commitments for the construction, modification or repair of
any building, structure or facility or for the incurrence of any
capital expenditures or for the acquisition of fixed assets, providing
for aggregate payments in excess of $50,000.00;
(iii) Commitments relating to the acquisition by Global Arena or
a Subsidiary of any operating business or the capital stock of any
other person or entity that have not been consummated or that have been
consummated but contain representations, covenants, guaranties,
indemnities or other obligations that remain in effect;
(iv) Commitments pursuant to which any party is required to
purchase or sell a stated portion of its requirements or output to
another party or perform a stated amount of service for, on behalf of,
or upon the referral of another party;
(v) Commitments relating to any Litigation (as defined
hereinafter in Section 3.7);
(vi) Commitments under which Global Arena agrees to indemnify
any person or entity;
(vii) Commitments containing covenants of Global Arena not to
compete do business in any line of business or in any geographical area
or with any person or entity, or to disclose certain information, or
covenants of any person or entity not to compete with Global Arena in
any line of business or in any geographical area or disclose
information concerning Global Arena;
(viii) Commitments pursuant to which Global Arena (A) leases,
subleases, licenses or otherwise has the right to use any personal
property or (B) is the lessor of any personal property;
(ix) Commitments in respect of any joint venture, partnership or
other similar arrangement (including, without limitation, any joint
development agreement);
(x) Commitments relating to any governmental or regulatory
authority;
(xi) Commitments for the lease or sub-lease of any real
property;
(xii) Commitments for the leasing of any personal property;
(xiii) Commitments relating to outstanding letters of credit or
performance bonds or creating any obligation or liability as guarantor,
surety, co-signer, endorser, co-maker, indemnitor or otherwise in
respect of the obligation of any person or entity, except as endorser
or maker of checks or letters of credit endorsed or made in the
ordinary course of business;
(xiv) Commitments that involve in excess of $50,000.00 in the
aggregate or that may not be terminated on less than ninety (90) days'
notice;
(xv) Commitments (other than those specified in any of clauses
(i) through (xiv) of this paragraph (a)) which relate to or affect the
business or any of the assets or properties of Global Arena in any way
that are material to the business; and
(xvi) Commitments currently in negotiation by Global Arena of a
type, which if entered into would be required to be listed on Exhibit
3.20(a) or to be disclosed on any other Schedule hereto.
Except as set forth in Exhibit 3.20(b), all of the Commitments referred
to in the preceding paragraph (a) are valid, binding, in full force and
effect and enforceable in accordance with their terms against Global
Arena, and to the knowledge of Global Arena, against the respective
counterparties to such Commitments. Complete copies (or, if oral, full
written descriptions) of all Commitments required to be so listed,
including all amendments thereto, and complete copies of all standard
form Commitments used in the conduct of the Business, have been
delivered to Global Arena. Except as set forth in Exhibit 3.20(b):
there is no breach, violation or default and no event which, with
notice or lapse of time or both, would constitute a breach, violation
or default, or give rise to any Encumbrance or right of termination,
modification, cancellation, prepayment, suspension, limitation,
revocation or acceleration under, any Commitment listed in Exhibit
3.20(a), except for breaches, violations and defaults, or Encumbrances
or rights of termination, modification, cancellation, prepayment,
suspension, limitation, revocation or acceleration which, individually
or in the aggregate, are not material; and neither Global Arena nor any
other party to any of the Commitments listed in Exhibit 3.20(a) is in
material arrears in respect of the performance or satisfaction of the
terms and conditions on its part to be performed or satisfied under any
of such Commitments and no material waiver or material indulgence has
been granted by any of the parties thereto.
Section 3.21 Compliance with Laws. Except as set forth in Exhibit
3.21, Global Arena has not received any written notice of any violation
of any applicable laws, rules, regulations and orders relating to the
operation, conduct or ownership of the business. Global Arena has all
permits, licenses, certificates and authorizations of governmental and
regulatory authorities necessary for the conduct of their business as
presently conducted, except where the failure to have any such permit,
certificate, or authorization would not have a Material Adverse Effect.
Section 3.22 Employee Benefit Plans; Labor Matters.
(a) With respect to each employee benefit plan, program, arrangement
and contract (including, without limitation, any "Employee Benefit
Plan", as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), maintained or contributed
to by Global Arena, or with respect to which Global Arena could incur
liability under Section 4069 or 4201(c) of ERISA (Global Arena Benefit
Plans"), Global Arena has made available to China Stationery a true and
correct copy of
- the most recent annual report (Form 5500) filed with the Internal
Revenue Service (the "IRS"),
- such Global Arena Benefit Plan,
- each trust agreement relating to such Global Arena Benefit Plan,
- the most recent summary plan described for each Global Arena
Benefit Plan for which a summary plan described is required,
the most recent actuarial report or valuation relating to a Global
Arena Benefit Plan subject to Title IV of ERISA, if any, and
- the most recent determination letter, if any, issued by the IRS
with respect to any Global Arena Benefit Plan qualified under Section
401 (a) of the Code.
(b) With respect to Global Arena Benefit Plans, no event has occurred
and, to the knowledge of Global Arena, there exists no condition or set
of circumstances, in connection with which Global Arena could be
subject to any liability under the terms of such Global Arena Benefit
Plans, ERISA, the Code or any other applicable law except as would not
have a Global Arena Material Adverse Effect. Global Arena has no
actual or contingent liability under Title IV of ERISA (other than the
payment of premiums to the Pension Benefit Guaranty Corporation) except
as would not have a Global Arena Material Adverse Effect.
(c) Global Arena has made available to Global Arena:
(i) copies of all employment agreements with officers or key
employees of Global Arena or any of its subsidiaries;
(ii) copies of all severance agreements, programs and policies
of Global Arena; and
copies of all plans, programs, agreements and other arrangements of
Global Arena, which contain change in control provisions.
(d) Except as set forth in Exhibit 3.22(d), neither the execution nor
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will:
- result in any material payment (including, without limitation,
severance, unemployment compensation, "golden parachute" or otherwise)
becoming due to any director, officer or employee of Global Arena under
any Global Arena Benefit Plan or otherwise;
- materially increase any benefits otherwise payable under any
Global Arena Benefit Plan; or
- result in any acceleration of the time of payment or vesting of
any material benefits.
(e) Except as set forth in Exhibit 3.22(e) or as required by law, no
Global Arena Benefit Plan provides retiree medical or retiree life
insurance benefits to any person.
(f) Global Arena
(i) is in material compliance with all applicable federal,
state and local laws, rules and regulations (domestic and foreign)
respecting employment, employment practices, labor, terms and
conditions of employment and wages and hours, in each case, with
respect to employees;
(ii) has withheld all amounts required by law or by agreement to
be withheld from the wages, salaries and other payments to employees;
is not liable for any arrears of wages or any taxes or any penalty for
failure to comply with any of the foregoing; and
(iii) is not liable for any payment to any trust or other fund or
to any governmental or administrative authority, with respect to
unemployment compensation benefits, social security or other benefits
for employees.
(g) No employees are currently represented by any labor union for
purposes of collective bargaining and to the knowledge of Global Arena,
no activities the purpose of which is to achieve such representation of
all or some of such employees are threatened or ongoing. No work
stoppage or labor strike against Global Arena by employees is pending
or to the knowledge of Global Arena threatened. Global Arena is not:
(i) involved in or threatened with any labor dispute,
grievance, or litigation relating to labor matters involving any
employees, including, without limitation, violation of any federal,
state or local labor, safety or employment laws (domestic or foreign),
charges of unfair labor practices or discrimination complaints;
(ii) engaged in any unfair labor practices within the meaning of
the National Labor Relations Act or the Railway Labor Act; or
(iii) presently, nor has it been in the past a party to, or bound by,
any collective bargaining agreement or union contract with respect to
employees and no such agreement or contract is currently being
negotiated by Global Arena or any of its affiliates.
(h) COBRA, FMLA, HIPAA, Cancer Rights. With respect to each Global
Arena Employee Plan, Global Arena has complied with:
(i) the applicable health care continuation and notice
provisions of the Consolidation Omnibus Budget Reconciliation Act of
1985 ("COBRA") and the regulations thereunder or any state law
governing health care coverage extension or continuation;
(ii) the applicable requirements of the Family and Medical Leave
Act of 1993 ("FMLA") and the regulations thereunder;
the applicable requirements of the Health Insurance Portability and
Accountability Act of 1996 ("HIPPAA"); and
(iii) the applicable requirements of the Cancer Rights Act of
1998, except to the extent that such failure to comply could not
reasonably be expected, individually or in the aggregate, to have
Material Adverse Effect on Global Arena. Global Arena has no material
unsatisfied obligations to any employees, former employees or qualified
beneficiaries pursuant to COBRA, HIPAA or any state law governing
health care coverage extension or continuation.
Section 3.23 Environmental Matters.
(a) To the knowledge of Global Arena, it is and has at all times been
in compliance with all environmental laws governing Global Arena and
its business, operations, properties and assets, except as would not
have a Material Adverse Effect.
(b) There are no judgments and no material non-compliance orders,
warning letters, notices of violation, claims, suits, actions,
penalties, fines, or administrative or judicial investigations of any
nature or to the knowledge of Global Arena proceedings pending or
threatened in writing against or involving Global Arena, any
Governmental Authority or third party with respect to any environmental
laws of licenses issued to Global Arena, except as would not have a
Material Adverse Effect.
Section 3.24 Insurance. All of the material assets of Global
Arena and all aspects of the business that are of insurable character
are covered by insurance with reputable insurers against risks of
liability, casualty and fire and other losses and liabilities
customarily obtained to cover comparable businesses and assets in
amounts, scope and coverage which are consistent with prudent industry
practice. Global Arena is not in default with respect to its
obligations under any material insurance policy maintained by it.
Exhibit 3.24 sets forth a list of all insurance coverage carried by
Global Arena, the carrier and the terms and amount of coverage. All
such policies and other instruments are in full force and effect and
all premiums with respect thereto have been paid. Global Arena has not
failed to give any notice or present any claim under any such insurance
policy in due and timely fashion or as required by any of such
insurance policies, and Global Arena has not otherwise, through any
act, omission or non-disclosure, jeopardized or impaired full recovery
of any claim under such policies, and there are no claims by Global
Arena under any of such policies to which any insurance company is
denying liability or defending under a reservation of rights or similar
clause. Global Arena has not received notice of any pending or
threatened termination of any of such policies or any premium increases
for the current policy period with respect to any of such policies and
the consummation of the transactions contemplated by this Agreement
will not result in any such termination or premium increase.
Section 3.25 Accuracy of Information. None of the written
information and documents which have been or will be furnished by
Global Arena or any representatives of Global Arena to China Stationery
or any of the representatives of Global Arena in connection with the
transactions contemplated by this Agreement contains or will contain,
as the case may be, any untrue statement of a material fact, or omits
or will omit to state a material fact necessary in order to make the
statements therein not misleading in light of the circumstances in
which made. To the knowledge of Global Arena, Global Arena has
disclosed to China Stationery as the purchaser of China Stationery
Common Stock all material information relating to Global Arena and its
activities as currently conducted.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CREATIVE
China Stationery represents and warrants to Global Arena that the
statements made in Article 4 are true and complete, as of the date of
this Agreement and will be correct and complete as of Closing, as
follows:
Section 4.1 Organization and Qualification of China Stationery.
China Stationery is a corporation duly organized, validly existing, and
in good standing under the laws of the state of Delaware, and has all
requisite corporate power and authority to own and lease the properties
and assets it currently owns and leases and to conduct its activities
as currently conducted. China Stationery is duly qualified to do
business as a foreign corporation in all jurisdictions in which the
ownership or leasing of the properties and assets owned or leased by it
or the nature of its activities makes such qualification necessary.
Section 4.2 Authority. China Stationery has all requisite corporate
power and authority to execute, deliver and perform this Agreement.
The execution, delivery, and performance of this Agreement by China
Stationery have been duly and validly authorized by all necessary
action on the part of China Stationery. This Agreement has been duly
and validly executed and delivered by China Stationery, and is the
valid and binding obligation of China Stationery, enforceable against
China Stationery in accordance with its terms.
Section 4.3 Capitalization of China Stationery. The authorized
capital stock of China Stationery consists of one hundred million
(100,000,000) authorized shares of common stock $.001 par value per
share of which eleven million, nine hundred eighty seven, four hundred
twenty seven (11,987,427) are issued and outstanding fully paid and non
assessable and two million (2,000,000) authorized shares, of preferred
shares .001 par value per share of which five hundred thousand
(500,000) are validly issued and outstanding. Except as listed in
Exhibit 4.3, there are no other authorized or outstanding
subscriptions, options, convertible securities, warrants, calls or
other rights of any kind issued or granted by, or binding upon, China
Stationery to purchase or otherwise acquire any securities of or equity
interest in China Stationery.
China Stationery shall effectuate a 1 for 20 reverse stock split prior
to the Merger. As a result, there will be no more than four hundred
nine thousand, five hundred twenty four (409,524) common shares issued
and outstanding at Closing.
Section 4.4 No Conflicts; Required Consents. The execution,
delivery and performance by China Stationery of this Agreement does not
and will not: (i) conflict with or violate any provisions of the
Charter Documents of China Stationery; (ii) violate any provision of
any Legal Requirements; or (iii) conflict with, violate, result in a
breach of, constitute a default under (without regard to requirements
of notice, lapse of time, or elections of other persons, or any
combination thereof) or accelerate or permit the acceleration of the
performance required by, any Contract or Lien to which China Stationery
is a party or by which China Stationery or the assets or properties
owned or leased by it are bound or affected; or (iv) require any
consent, approval or authorization, report or other document with, any
Governmental Authority or other person.
Section 4.5 Validity and Ownership of China Stationery Common Stock.
The China Stationery Common Stock received by the shareholders of
Global Arena at the Closing will be validly issued and outstanding,
fully paid and non-assessable. The China Stationery Common Stock will
not be subject to, nor bound or affected by, any proxies, voting
agreements, or other restrictions on the ownership thereof, and shall
remain free from any encumbrances or Liens.
Section 4.6 Subsidiaries. China Stationery does not control or hold
direct or indirect equity interests in, or hold rights to control or
acquire direct or indirect equity interests in, any corporation other
than described in Exhibit 4.6.
Section 4.7 Litigation. Other than disclosed in Exhibit 4.7, there
is no litigation pending or, to China Stationery's knowledge,
threatened, by or before any governmental authority or private
arbitration tribunal, against China Stationery or its operations, nor,
to China Stationery's knowledge, is there any basis for any such
litigation.
Section 4.8 Compliance with Applicable Legal Requirements. Conduct
by China Stationery of its activities as currently conducted does not
violate or infringe any Legal Requirements currently in effect, or, to
the knowledge of China Stationery, proposed to become effective; and
China Stationery has received no notice of any violation by China
Stationery of any Legal Requirements applicable to China Stationery or
its activities as currently conducted; and China Stationery knows of no
basis for the allegation of any such violation.
Section 4.9 Financial Statements. China Stationery has delivered to
Global Arena the audited financial statements of China Stationery as of
December 31, 2009 and the unaudited interim financial statements of
China Stationery as of September 30, 2010 (the "China Stationery
Financial Statements"). The Financial Statements were prepared in
accordance with GAAP and present fairly the financial position of China
Stationery as of the date indicated.
Section 4.10 Liabilities. China Stationery has no liabilities or
obligations, whether absolute, accrued, contingent or otherwise, that
are not reflected in the balance sheet or non-delinquent obligations
for ordinary and recurring expenses, including in the ordinary course
of business of China Stationery since the date of the Financial
Statements. At Closing, China Stationery shall have no liabilities or
obligations, including state and federal tax liabilities.
Section 4.11 Tax Returns and Payments. Except as set forth in Exhibit
4.11(a), all Tax Returns required to be filed by or with respect to
China Stationery have been properly and timely filed and all such Tax
Returns are complete and accurate in all material respects. Except to
the extent reserved or reflected against on the Financial Statements,
all Taxes due with respect to such Tax Returns or which are otherwise
due and payable by China Stationery have been paid in full. All Taxes
required to be withheld and paid over by China Stationery to any
relevant Tax authority in connection with payments to employees,
independent contractors, creditors, stockholders or to third parties
have been so withheld and paid over.
(b) Except as set forth in Exhibit 4.11(b):
(i) no Tax authority in a jurisdiction where China Stationery does
not file Tax Returns has made a written claim, assertion or threat that
Global Arena is or may be subject to tax in such jurisdiction;
(ii) no deficiencies for any tax have been threatened, proposed,
asserted or assessed against China Stationery that have not been
satisfied;
(iii) no audits or examinations with respect to China Stationery are
ongoing or have been threatened or proposed, in writing by the Internal
Revenue Service or the appropriate state, local or foreign Tax
authority;
(iv) no waivers or extensions of statutes of limitation with respect
to Taxes have been given by or requested with respect to China
Stationery;
(v) there are no Tax rulings, requests for rulings, closing
agreements relating to China Stationery that could affect the liability
for Taxes of China Stationery for any period (or portion of a period)
after the Closing; and
(iv) no power of attorney has been granted by China Stationery with
respect to any matter relating to Taxes of China Stationery that is
currently in force.
(c) China Stationery is not a party to or liable to under any tax
sharing agreement with respect to taxes of any consolidated, combined
or unitary group other than the consolidated, combined or unitary group
other than the consolidated, combined or unitary group disclosed in
Exhibit 4.11(c). Except as set forth in Exhibit 4.11(c), China
Stationery has not with respect to any taxable period for which the
applicable statute of limitations has not run, filed a combined
consolidated or unitary tax return with respect to any jurisdictions
(foreign and domestic) in which China Stationery has filed income tax
returns for taxable periods ending on or December 31, 2009. China
Stationery will not, in the absence of a closing agreement provided for
in the Treasury Regulations under Section 1503 of the Internal Revenue
Code of 1986. (the "Code"), trigger the recapture of any dual
consolidated losses (as defined in Section 1503 of the Code) by virtue
of the transactions contemplated by this Agreement.
(d) There are no tax liens on any assets of China
Stationery, except liens for taxes not yet due and payable.
Section 4.12 Absence of Certain Changes or Events. Except as listed
in Exhibit 4.12, since the date of the China Stationery Financial
Statements there has not occurred:
(a) any material and adverse change in the financial condition
or operations of China Stationery;
(b) any damage, destruction or loss to or of any of the
material assets or properties owned or leased by China Stationery;
(c) the creation or attachment of any Lien against the Common
Stock of China Stationery;
(d) any waiver, release, discharge, transfer, or cancellation
by China Stationery of any rights or claims of material value;
(e) any issuance by China Stationery of any securities, or any
merger or consolidation of China Stationery with any other Person, or
any acquisition by China Stationery of the business of any other
Person;
(f) any incurrence, assumption or guarantee by China Stationery
of any indebtedness or liability;
(g) any declaration, setting aside or payment by China
Stationery of any dividends on, or any other distribution with respect
to, any capital stock of China Stationery or any repurchase,
redemption, or other acquisition of any capital stock of China
Stationery;
(h) (A) any payment of any bonus, profit sharing, pension or
similar payment or arrangement or special compensation to any employee
of China Stationery, except in the ordinary course of the
administration of China Stationery, or (B) any increase in the
compensation payable or to become payable to any employee of China
Stationery; or
(i) the entry by China Stationery into any Contract to do any
of the foregoing.
Section 4.13 Material China Stationery Contracts. As of the date of
this Agreement, China Stationery does not have except as disclosed in
Exhibit 4.13:
(a) contracts evidence or evidencing or relating to any liabilities
or obligations of China Stationery, whether absolute, accrued,
contingent or otherwise, or granting any Person a Lien or against any
properties or assets owned or leased by China Stationery;
(b) joint venture or partnership Contracts between China Stationery
and any other person;
(c) contracts limiting the China Stationery to engage in or to
compete in any activity, or to use or disclose any information in its
possession;
(d) any other contracts to which China Stationery is a party or by
which it or the assets or properties owned or leased by it are bound or
affected that are not set forth on other Exhibits hereto, which in the
aggregate contemplate payments to or by China Stationery exceeding
$50,000 in any twelve-month period (collectively herein as the
"Material China Stationery Contract"). China Stationery has delivered
to Global Arena true and complete copies of each of the Material China
Stationery Contracts, including any amendments thereto (or, in the case
of oral Material China Stationery Contracts, a written description and
representation that the contract is valid, in full force and effect and
enforceable in accordance with its terms against the parties thereto
other than China Stationery, has fulfilled when due, or has taken all
action necessary to enable it to fulfill when due, all of its
obligations thereunder);
(e) there has not occurred any default (without regard to lapse of
time, the giving of notice, or the election of any person other than
China Stationery, or any combination thereof) by China Stationery, nor,
to the knowledge of China Stationery, has there occurred any default
(without regard to lapse of time, the giving of notice, or the election
of China Stationery, or any combination thereof) by any other person,
under any of the Material China Stationery Contracts; and
(f) neither China Stationery nor, to the knowledge of China
Stationery, any other person is in arrears in the performance or
satisfaction of its obligations under any of the Material China
Stationery Contracts, and no waiver has been granted by any of the
parties thereto.
Section 4.14 (a) Real Property. As of the date of this Agreement,
China Stationery does not own any real property.
(b) Leased Property. Exhibit 4.14(b) sets forth a list of all real
property leased by China Stationery (the "Leased Real Property").
China Stationery has made available to China Stationery true and
complete copies of all leases and subleases relating to the Leased Real
Property. With respect to the Leased Real Property except as set forth
on Exhibit 4.14(b)
(i) China Stationery has not received written notice of any pending
or, to the knowledge of the Stockholders, threatened condemnation or
eminent domain proceedings or their local equivalent with respect to
the Leased Real Property;
(ii) the Leased Real Property, the use and occupancy thereof by China
Stationery, and the conduct of the business thereon and therein does
not violate any deed restrictions, applicable law consisting of
building codes, zoning, subdivision or other land use or similar laws
the violation of which would materially adversely affect the use, value
or occupancy of any such property or the conduct of the business
thereon;
(iii) China Stationery has received, written notice of a material
violation of the restrictions or laws described in the foregoing clause
(ii); and
(iv) none of the structures or improvements on any of the Leased Real
Property encroaches upon real property of another person or entity, and
no structure or improvement of another person or entity encroaches upon
any of the Leased Real Property, which would materially interfere with
the use thereof in the ordinary course of business.
Section 4.15 Employees. As of the date of this Agreement, China
Stationery does not have any employees except as disclosed in Exhibit
4.15.
Section 4.16 Books and Records. All of the books, records and
accounts of China Stationery are in all material respects true and
complete, are maintained in accordance with good business practice and
all applicable Legal Requirements, accurately present and reflect in
all material respects all of the transactions therein described, and
are reflected accurately in the Financial Statements. China Stationery
has previously delivered to Global Arena the complete stock record book
of China Stationery and true and complete copies of all of the minutes
of meetings and all other corporate actions of the stockholders, Board
of Directors and committees of the Board of Directors of China
Stationery since the date of its incorporation.
Section 4.17 Certain Interests. None of China Stationery or its
officers, directors, or holders of ten percent (10%) or more of China
Stationery Common Stock, directly or indirectly is, or owns any
interest in, or controls, or is an employee, officer, director or
partner of or participant in, or consultant to, any person which is a
competitor, supplier or customer of China Stationery.
Section 4.18 Bank Accounts. Exhibit 4.18 sets forth all bank
accounts, brokerage accounts, and safe deposit boxes of any kind
maintained by China Stationery and, in each case, identifies the
persons that are authorized signatories for, or which are authorized to
have access to, each of them.
Section 4.19 Changes in Circumstances. China Stationery has no
knowledge of:
(i) any current or future condition or state of facts or
circumstances which could reasonably be expected to result in a
material and adverse change in the financial condition of operations of
China Stationery; or
(ii) any Legal Requirements currently in effect from which China
Stationery currently is, or any currently proposed Legal Requirements
from which China Stationery would be, exempt by reason of any
"grandfather" clauses or provisions contained therein, but which would
be applicable to China Stationery following closing.
Section 4.20 Insurance. All of the material assets of China
Stationery and all aspects of the business that are of insurable
character are covered by insurance with reputable insurers against
risks of liability, casualty and fire and other losses and liabilities
customarily obtained to cover comparable businesses and assets in
amounts, scope and coverage which are consistent with prudent industry
practice. China Stationery is not in default with respect to its
obligations under any material insurance policy maintained by it.
Exhibit 4.20 sets forth a list of all insurance coverage carried by
China Stationery, the carrier and the terms and amount of coverage.
All such policies and other instruments are in full force and effect
and all premiums with respect thereto have been paid. China Stationery
has not failed to give any notice or present any claim under any such
insurance policy in due and timely fashion or as required by any of
such insurance policies, and China Stationery has not otherwise,
through any act, omission or non-disclosure, jeopardized or impaired
full recovery of any claim under such policies, and there are no claims
by China Stationery under any of such policies to which any insurance
company is denying liability or defending under a reservation of rights
or similar clause. China Stationery has not received notice of any
pending or threatened termination of any of such policies or any
premium increases for the current policy period with respect to any of
such policies and the consummation of the transactions contemplated by
this Agreement will not result in any such termination or premium
increase.
Section 4.21 Accuracy of Information. None of the written
information and documents which have been or will be furnished by China
Stationery or any representatives of China Stationery to China
Stationery or any of the representatives of China Stationery in
connection with the transactions contemplated by this Agreement
contains or will contain, as the case may be, any untrue statement of a
material fact, or omits or will omit to state a material fact necessary
in order to make the statements therein not misleading in light of the
circumstances in which made. To the knowledge of China Stationery,
China Stationery has disclosed to China Stationery as the purchaser of
China Stationery Common Stock all material information relating to
China Stationery and its activities as currently conducted.
ARTICLE 5
Covenants of Global Arena and China Stationery
Section 5.1 Affirmative Covenants of Global Arena. Except as Global
Arena may otherwise consent in writing, between the dates of this
Agreement and Closing, Global Arena shall:
(a) conduct its business only in the usual, regular, and
ordinary course and in accordance with past practices:
(b) (i) duly comply with all applicable Legal Requirements;
(ii) perform all of its obligations under all Global Arena Contracts
without default; and
(iii) maintain its books, records, and accounts on a basis consistent
with past practices.
(c) (i) give to China Stationery and its counsel, accountants and
other representatives reasonable access during normal business hours to
the premises of Global Arena, all of the assets and properties owned or
leased by Global Arena, Global Arena's books and records, and Global
Arena's personnel;
(ii) furnish to China Stationery and such representatives all such
additional documents (certified by an officer of Global Arena, if
requested), financial information and other information as China
Stationery may from time to time reasonably request; and
(iii) cause Global Arena's accountants to permit China Stationery and
its accountants to examine the records and working papers pertaining to
Global Arena's Financial Statements' provided that no investigation by
Global Arena or its representatives will affect or limit the scope of
any of the representations and warranties of Global Arena herein or in
any Exhibit or other related document.
(d) use its best efforts to obtain in writing as promptly as possible
all approvals and consents required to be obtained by Global Arena in
order to consummate the transactions contemplated hereby and deliver to
Global Arena copies, satisfactory in form and substance to Global
Arena, of such approvals and consents;
(e) promptly deliver to China Stationery true and complete copies of
all monthly and quarterly financial statements of Global Arena and any
reports with respect to the activities of Global Arena which are
prepared by or for Global Arena at any time from the date hereof until
Closing; and
(f) promptly notify China Stationery of any circumstance, event or
action, by Global Arena or otherwise:
(i) which, if known at the date of this Agreement, would have been
required to be disclosed in or pursuant to this Agreement; or
(ii) the existence, occurrence or taking of which would result in any
of the representations and warranties of Global Arena in this Agreement
or any Exhibit not being true and correct in all material respects.
Section 5.2 Negative Covenants of Global Arena. Except as Global
Arena may otherwise consent in writing, between the dates of this
Agreement and Closing, Global Arena shall not:
(a) change the character of its business;
(b) incur any liability or obligation or enter into any
Contract except, in each case, in the ordinary course of business
consistent with prior practices and not prohibited by any other
provision hereof;
(c) incur, assume or guarantee any indebtedness or liability in
respect of borrowed money;
(d) make any capital expenditure or commitment for capital
expenditure exceeding $500,000 for a single project or $1,000,000 for
all projects, whether or not in the ordinary course of business;
(e) modify, terminate, or abrogate any Material Global Arena
Contract other than in the ordinary course of business, or waive,
lease, discharge, transfer or cancel any rights or claims of material
value;
(f) create or permit the creation or attachment of any Lien
against any of the assets or properties owned or leased by it;
(g) except as otherwise required by this Agreement, prepay any
material liabilities or obligations;
(h) issue any securities, or merge or consolidate with any
other person, or acquire any of the securities, partnership or joint
venture interests, or business of any other person;
(i) declare, set aside or pay any dividends on, or make any
other distribution with respect to, any of its capital stock, or
repurchase, redeem or otherwise acquire any of its capital stock; or
(j) enter into any transaction or permit the taking of any action
that would result in any of the representations and warranties in this
Agreement not being true and correct in all material respects at
Closing.
Section 5.3 Affirmative Covenants of China Stationery. Except as
Global Arena may otherwise consent in writing, between the dates of
this Agreement and Closing, China Stationery shall:
(a) conduct its business only in the usual, regular, and
ordinary course and in accordance with past practices;
(b) (i) duly comply with all applicable Legal Requirements;
(ii) perform all of its obligations under all China Stationery
Contracts without default; and
(iii) maintain its books, records, and accounts on a basis consistent
with past practices.
(c) (i) give to Global Arena and its counsel, accountants and
other representatives reasonable access during normal business hours to
the premises of China Stationery, all of the assets and properties
owned or leased by China Stationery, China Stationery's books and
records, and China Stationery's personnel:
(ii) furnish to Global Arena and such representatives all such
additional documents (certified by an officer of China Stationery, if
requested), financial information and other information as Global Arena
may from time to time reasonably request; and
cause China Stationery's accountants to permit Global Arena and its
accountants to examine the records and working papers pertaining to
China Stationery's Financial Statements' provided that no investigation
by Global Arena or its representatives will affect or limit the scope
of any of the representations and warranties of China Stationery herein
or in any Exhibit or other related document.
(d) use its best efforts to obtain in writing as promptly as possible
all approvals and consents required to be obtained by Global Arena in
order to consummate the transactions contemplated hereby and deliver to
Global Arena copies, satisfactory in form and substance to Global
Arena, of such approvals and consents;
(e) promptly deliver to Global Arena true and complete copies
of all monthly and quarterly financial statements of China Stationery
and any reports with respect to the activities of China Stationery
which are prepared by or for China Stationery at any time from the date
hereof until Closing; and
(f) promptly notify Global Arena of any circumstance, event or
action, by China Stationery or otherwise:
(i) which, if known at the date of this Agreement, would have been
required to be disclosed in or pursuant to this Agreement; or
(ii) the existence, occurrence or taking of which would result in any
of the representations and warranties of China Stationery in this
Agreement or in any Transaction Document not being true and correct in
all material respects.
Section 5.4 Negative Covenants of China Stationery. Except as
Global Arena may otherwise consent in writing, between the dates of
this Agreement and Closing, China Stationery shall not:
(a) change the character of its business;
(b) incur any liability or obligation or enter into any
Contract except, in each case, in the ordinary course of business
consistent with prior practices and not prohibited by any other
provision hereof;
(c) incur, assume or guarantee any indebtedness or liability in
respect of borrowed money;
(d) make any capital expenditure or commitment for capital
expenditure exceeding $5,000 for a single project or $10,000 for all
projects, whether or not in the ordinary course of business;
(e) modify, terminate, or abrogate any Material China
Stationery Contract other than in the ordinary course of business, or
waive, lease, discharge, transfer or cancel any rights or claims of
material value;
(f) create or permit the creation or attachment of any Lien
against any of the assets or properties owned or leased by it;
(g) except as otherwise required by this Agreement, prepay any
material liabilities or obligations;
(h) issue any securities, or merge or consolidate with any
other person, or acquire any of the securities, partnership or joint
venture interests, or business of any other person;
(i) declare, set aside or pay any dividends on, or make any
other distribution with respect to, any of its capital stock, or
repurchase, redeem or otherwise acquire any of its capital stock; or
(j) enter into any transaction or permit the taking of any
action that would result in any of the representations and warranties
in this Agreement not being true and correct in all material respects
at Closing.
Section 5.5 Joint Undertakings. Each of Global Arena and China
Stationery shall cooperate and exercise commercially reasonable efforts
to facilitate the consummation of the transactions contemplated by this
Agreement so as to permit Closing to take place on the date provided
herein and to cause the satisfaction of conditions to Closing set forth
in Article 6.
Section 5.6 Confidentiality.
(a) Any non-public information that China Stationery may obtain from
Global Arena in connection with this Agreement, including but not
limited to information concerning trade secrets, licenses, research
projects, costs, profits, markets, sales, customer lists, strategies,
plans for future development and any other information of a similar
nature, shall be deemed confidential and, unless and until Closing
shall occur, China Stationery shall not disclose any such information
to any third party (other than its directors, officers and employees,
and persons whose knowledge thereof is necessary to facilitate the
consummation of the transactions contemplated hereby) or use such
information to the detriment of Global Arena; provided that
(i) China Stationery may use and disclose any such information once
it has been publicly disclosed (other than by China Stationery in
breach of its obligations under this Section) or which rightfully has
come into the possession of China Stationery (other than from Global
Arena); and
(ii) to the extent that China Stationery may become compelled by Legal
Requirements to disclose any of such information, China Stationery may
disclose such information if it shall have used all reasonable efforts,
and shall have afforded Global Arena the opportunity, to obtain an
appropriate protective order, or other satisfactory assurance of
confidential treatment, for the information compelled to be disclosed.
In the event of termination of this Agreement, China Stationery shall
use all reasonable efforts to cause to be delivered to Global Arena,
and retain no copies of, any documents, work papers and other materials
obtained by China Stationery or on its behalf from Global Arena,
whether so obtained before or after the execution hereof.
(b) Any non-public information that Global Arena may obtain from
China Stationery in connection with this Agreement, including but not
limited to information concerning trade secrets, licenses, research
projects, costs, profits, markets, sales, customer lists, strategies,
plans for future development and any other information of a similar
nature, shall be deemed confidential and, unless and until Closing
shall occur, Global Arena shall not disclose any such information to
any third party (other than its directors, officers and employees, and
persons whose knowledge thereof is necessary to facilitate the
consummation of the transactions contemplated hereby) or use such
information to the detriment of China Stationery; provided that
(i) Global Arena may use and disclose any such information once it
has been publicly disclosed (other than by Global Arena in breach of
its obligations under this Section) or which rightfully has come into
the possession of Global Arena (other than from China Stationery); and
(ii) to the extent that Global Arena may become compelled by Legal
Requirements to disclose any of such information, Global Arena may
disclose such information if it shall have used all reasonable efforts,
and shall have afforded China Stationery the opportunity, to obtain an
appropriate protective order, or other satisfactory assurance of
confidential treatment, for the information compelled to be disclosed.
In the event of termination of this Agreement, Global Arena shall use
all reasonable efforts to cause to be delivered to China Stationery,
and retain no copies of, any documents, work papers and other materials
obtained by Global Arena or on its behalf from China Stationery,
whether so obtained before or after the execution hereof.
Section 5.7 Publicity. China Stationery and Global Arena shall each
consult with and obtain the consent of the other before issuing any
press release or making any other public disclosure concerning this
Agreement or the transactions contemplated hereby unless, in the
reasonable judgment of the disclosing party, a release or disclosure is
required to discharge its disclosure obligations under applicable Legal
Requirements, in which case it shall in good faith consult with the
other party about the form, content and timing of such release or
disclosure prior to its release or disclosure.
Section 5.8 Global Arena's Responsibility for Taxes; Returns; Audits.
(a) Tax Returns; Filing and Payments.
(i) Global Arena shall timely prepare (or cause to be prepared), and
shall timely file (or cause to be timely filed) all Income Tax Returns
of Global Arena for any taxable year or period ending on or before the
Closing Date which are not required to be filed on or before the
Closing Date.
(ii) Global Arena shall prepare (or cause to be prepared) and file (or
cause to be filed) all Income Tax Returns of Global Arena for any
Taxable year or period commencing prior to the Closing Date and ending
subsequent to the Closing Date.
(iii) The Tax Returns referred to in this Section 5.8(a)(i) and (ii),
shall, to the extent not otherwise required by law, be prepared in a
manner consistent with Global Arena's (as appropriate) past practice
(including any Tax elections and methods of accounting). With respect
to any Tax Return referred to in Sections 5.8(a)(i) and (ii) above, the
party preparing such return shall provide the other party a draft of
such Tax Return and Tax information (including, without limitation,
work papers and schedules) for review of such Tax Return in a timely
manner no later than thirty (30) days prior to the due date (taking
into account valid extensions) for the filing of such Tax Return. The
parties shall consult in good faith with regard to the form and content
of such Tax Returns, provided that, in the event of any disagreement,
the Tax Returns shall be filed in the form set forth by the party with
responsibility for the preparation of the Tax Return.
(b) Termination of Tax Sharing Agreements; Powers of Attorney.
(i) Any Tax Sharing Agreement to which Global Arena is a party shall
be terminated as of the Closing Date, and Global Arena shall have no
further obligations thereunder. For purposes of this Agreement, the
term "Tax Sharing Agreement" includes any agreement or arrangement,
whether or not written, providing for the sharing or allocation of
liability for Taxes of the parties thereto.
(ii) All powers of attorney granted by Global Arena with respect to
Taxes shall be revoked as of the Closing Date.
Between the date of the Agreement and the Closing Date, Global Arena
will not cause or permit Global Arena to:
(a) make any change in Global Arena's Tax accounting methods, any
new election with respect to Taxes or any modification or revocation of
any existing election with respect to Taxes; or
(b) settle or otherwise dispose of any Tax audit, dispute, or
other Tax proceeding, in each case without Global Arena' express
written consent thereto.
(c) Assistance and Cooperation.
(i) From and after the Closing Date, to the extent reasonably
requested by the other party, China Stationery and Global Arena shall
assist and cooperate with each other in the preparation of any Tax
Return which the other party is responsible to file pursuant to Section
5.8(a) herein and shall assist and cooperate with the other party in
preparing for any audits or disputes relating to Taxes for which the
other party is responsible pursuant to this Agreement. From and after
the Closing Date, China Stationery and Global Arena shall, pursuant to
the other party's reasonable request, make available to the other party
all information, records and documents reasonably available to that
party, which are necessary for the preparation of any Tax Return or
resolution of any audit or dispute. In all such cases, the party
seeking assistance or cooperation shall bear the expenses of the other
party incurred in connection with respect thereto.
(ii) From and after the Closing Date, China Stationery and Global
Arena shall provide timely notice to the other in writing of any
pending or threatened tax audits or assessments of Global Arena for
taxable periods for which the other is liable under this Agreement, and
shall furnish the other with copies of all correspondence received from
any taxing authority in connection with any tax audit or information
request with respect to any such taxable period.
Section 5.9 China Stationery's Responsibility for Taxes; Returns;
Audits.
Tax Returns; Filing and Payments.
(i) China Stationery shall timely prepare (or cause to be prepared),
and shall timely file (or cause to be timely filed) all Income Tax
Returns of China Stationery for any taxable year or period ending on or
before the Closing Date which are not required to be filed on or before
the Closing Date
(ii) The Tax Returns referred to in this Section 5.9 shall, to the
extent not otherwise required by law, be prepared in a manner
consistent with China Stationery's (as appropriate) past practice
(including any Tax elections and methods of accounting). With respect
to any Tax Return referred to in Sections 5.9 above, between the dates
of the Agreement and the Closing Date, Global Arena will not make any
change in China Stationery's Tax accounting methods, any new election
with respect to Taxes or any modification or revocation of any existing
election with respect to Taxes.
Section 5.10 Cooperation with Public Filings. Global Arena shall
cooperate with China Stationery and its affiliates and advisors in the
preparation and filing of any public filings (and any related
documentation or filings) in a timely fashion and shall use its
reasonable best efforts to assist China Stationery in having any such
registration statement declared effective by the Securities and
Exchange Commission as promptly as practicable and in maintaining the
effectiveness of any such registration statement. If Global Arena
shall obtain knowledge of any information pertaining to Global Arena
that would require any amendment or supplement to any registration
statement, Global Arena shall so advise China Stationery in writing and
shall promptly furnish China Stationery with all information as shall
be required for such amendment or supplement and shall promptly take
such action as shall be required to amend or supplement any such
registration statement.
Section 5.11 Tax Reorganization. Each party to this Agreement
hereby intends and agrees to take all reasonable actions to cause the
Merger to qualify as a reorganization within the meaning of Section
368(a) of the Code and will immediately notify each of the other
parties of any circumstance or condition of which it is or becomes
aware of which might cause the Merger to fail to so qualify. Global
Arena represents that it has not taken any action that would cause the
Merger to fail to so qualify as reorganization within the meaning of
Section 368(a) of the Code, and is not aware of any circumstances,
which would cause the Merger to fail to so qualify.
ARTICLE 6
Conditions Precedent
Section 6.1 Conditions to Global Arena's Obligations. The
obligations of Global Arena to consummate the transactions contemplated
by this Agreement are subject to the following conditions:
(a) Accuracy of Representations. The representations of
China Stationery in this Agreement or in any Exhibit hereto shall be
true and accurate in all material respects at and as of Closing with
the same effect as if made at and as of Closing, except as affected by
the transactions contemplated hereby.
(b) Performance of Agreements. China Stationery shall have
performed all obligations and agreements and complied with all
covenants in this Agreement to be performed and complied with by it at
or before Closing.
(c) Receipt of China Stationery Common Stock. China Stationery
shall have delivered to Global Arena at Closing, certificates
representing eighteen million (18,000,000) issued in the name of the
shareholders of Global Arena.
(d) Officer's Certificate. Global Arena shall have received a
certificate executed by an executive officer of China Stationery, dated
as of Closing, reasonably satisfactory in form and substance to Global
Arena certifying that the conditions stated in subparagraphs (a), (b)
and (c) of this Section have been satisfied.
(e) Legal Proceedings. There shall be no Legal Requirement,
and no judgment shall have been entered and not vacated by any
governmental authority of competent jurisdiction and no litigation
shall be pending which restrains, makes illegal or prohibits
consummation of the transactions contemplated hereby.
(f) Consents. Global Arena shall have obtained evidence, in
form and substance satisfactory to it, that there has been obtained all
consents, approvals and authorizations required by this Agreement.
(g) Resignation of Officers and Directors. Each of the
officers and directors of China Stationery whose written resignation
Global Arena has requested shall have delivered to Global Arena
effective as of the Closing.
(h) Legal Matters Satisfactory to Global Arena's Counsel. All
actions, proceedings, instruments and documents required to carry out
the transactions contemplated by this Agreement or incidental thereto
and all related legal matters shall be reasonably satisfactory to and
approved by Global Arena's counsel, and such counsel shall have been
furnished with such certified copies of actions and proceedings and
such other instruments and documents as it shall have reasonably
requested.
Section 6.2 Conditions to China Stationery's Obligations. The
obligations of China Stationery to consummate the transactions
contemplated by this Agreement are subject to the following conditions:
(a) Accuracy of Representations. The representations of Global
Arena in this Agreement or in any Exhibit hereto shall be true and
accurate (in all material respects) at and as of Closing with the same
effect as if they were made at and as of Closing, except as affected by
the transactions contemplated hereby.
(b) Performance of Agreements. Global Arena shall have performed
all obligations and agreements and complied with all covenants in this
Agreement or in any Transaction Document to which it is a party to be
performed and complied with by it at or before Closing.
(c) Delivery of Global Arena Stock. Global Arena shall have
delivered at Closing, certificates representing twelve million
(12,000,000) shares of common stock.
(d) Officer's Certificate. China Stationery shall have received a
certificate executed by an executive officer of Global Arena, dated as
of Closing, reasonably satisfactory in form and substance to China
Stationery, certifying that the conditions stated in subparagraphs (a)
and (b) of this Section have been satisfied.
(e) Legal Proceedings. There shall be no Legal Requirement, and no
judgment shall have been entered and not created by any governmental
authority of competent jurisdiction and no litigation shall be pending
which,
(i) restrains, make illegal or prohibits consummation of the
transactions contemplated hereby, or
(ii) could have a material adverse effect upon the operations or
financial condition of Global Arena.
(f) Consents. China Stationery shall have received evidence, in
form and substance satisfactory to it, that there have been obtained
all consents, approvals, and authorizations required by this Agreement.
(g) Legal Matters Satisfactory to China Stationery and its
Representatives. All actions, proceedings, instruments and documents
required to carry out the transactions contemplated by this Agreement
or incidental thereto and all related legal matters shall be reasonably
satisfactory to and approved by China Stationery's counsel, and such
counsel shall have been furnished with such certified copies of actions
and proceedings and such other instruments and documents as it shall
have reasonably requested.
ARTICLE 7
Termination
Section 7.1 Termination Events. This Agreement may be terminated
and the transactions contemplated hereby may be abandoned:
(a) at any time, by the mutual agreement of China Stationery
and Global Arena;
(b) by either China Stationery and Global Arena, if the other
is in material breach or default of its respective covenants,
agreements or other obligations hereunder or if any of its
representations and warranties herein are not true and accurate in all
material respects when made or when otherwise required by this
Agreement to be true and accurate.
(c) by China Stationery, if any of the conditions to its
obligations set forth in Section 6.1 shall not have been satisfied as
of Closing, unless satisfaction shall have been frustrated or made
impossible by an act or failure to act of Global Arena; or
(d) by Global Arena, if any of the conditions to its
obligations set forth in Section 6.2 shall not have been satisfied as
of Closing, unless satisfaction shall have been frustrated or made
impossible by an act or failure to act of China Stationery; or
Section 7.2 Effect of Termination. If this Agreement shall be
terminated, all obligations of the parties hereunder shall terminate,
except for the obligations set forth in Section 5.6 and 5.7. In such
event, Global Arena shall return any and all China Stationery Common
Stock received hereunder and both parties shall file the necessary
documents in the states of Delaware to complete the transfer of any and
all Global Arena shares of stock received by China Stationery hereunder
to the Principal Shareholders.
ARTICLE 8
Miscellaneous
Section 8.1 Waiver and Modifications. Any of the provisions of this
Agreement may be waived at any; time by the party entitled to the
benefit thereof, upon the authority of the Board of Directors of such
party; provided, however, that no waiver by Global Arena shall be
authorized after the last vote of the stockholders of Global Arena if
such waiver shall, in the judgment of the Board of Directors of China
Stationery, affect materially and adversely the benefits of the China
Stationery stockholders under this Agreement or the Agreement of
Merger. Any of the provisions of this Agreement (including the
exhibits and the Agreement of Merger) may be modified at any time prior
to and after the vote of the stockholders of Global Arena by agreement
in writing approved by the Board of Directors of each party and
executed in the same manner (but not necessarily by the same persons)
as this Agreement, provided that such modification, after the last vote
of the stockholders of China Stationery shall not, in the judgment of
the Board of Directors of Global Arena, affect material and adversely
the benefits of Global Arena's stockholders under this Agreement or the
Agreement of Merger. To the extent permitted by law, the powers of the
Board of Directors may be delegated by the Board of the Executive
Committee of such Board or by such Board (or by the Executive Committee
to the extent any matter has been delegated to such Committee by the
Board) to any officer or officers of such party, and any notices,
consents or other action referred to in this Agreement may be given or
taken by any officer so authorized.
Section 8.2 Finder Commissions. Global Arena represents and
warrants that no broker or finder is entitled to any brokerage or
finder's fee or other commission based on agreements, arrangements or
understandings made by it with respect to the transactions contemplated
by this Agreement or by the Agreement of Merger, other than set forth
in Exhibit 8.2.
Section 8.3 Notices. Any notice, request, instruction or other
document to be given hereunder or under the Agreement of Merger by any
party to another shall be in writing and delivered personally or sent
by registered or certified mail, postage prepaid,
if to Global Arena, addressed to:
John Matthews, Chief Executive Officer
Global Arena Holding Subsidiary Corp.
708 Third Avenue
New York City, NY 10017
With Copies To:
Jody M. Walker
Attorney At Law
7841 South Garfield Way
Centennial, CO 80122
if to China Stationery, addressed to:
John Matthews, Chief Executive Officer
China Stationery and Office Supply, Inc.
708 Third Avenue
New York City, NY 10017
With copies to:
Jody M. Walker, Esq.
7841 South Garfield Way
Centennial, Colorado 80122
Section 8.4 Entire Agreement. This Agreement including Exhibits and
referenced documents represents the entire agreement between the
parties. Any and all other oral or written agreements concerning this
merger shall be deemed null and void.
Section 8.5 Governing Law. This Agreement shall be governed by,
construed, and enforced in accordance with the laws of the state of
Delaware.
Section 8.6 Counterparts. In order to facilitate the filing and
recording of this Agreement the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
Section 8.7 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties hereto; provided,
however, that this Agreement may not be assigned by either party hereto
without the prior written consent of the other (except that China
Stationery may without the prior written consent of Global Arena assign
this Agreement to any affiliate of China Stationery so long as such
assignee shall execute a counterpart of this Agreement agreeing to be
bound by the provisions hereof as "China Stationery," and agreeing to
be jointly and severally liable with the assignor and any other
assignee for all of the obligations of the assignor hereunder), but no
such assignment of this Agreement or any of the rights or obligations
hereunder shall relieve China Stationery of its obligations under this
Agreement. Notwithstanding anything contained in this Agreement to
the contrary, nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Section 8.8 Headings. The headings of the Articles, Sections and
paragraphs of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect
the construction hereof.
Section 8.9 Modification and Waiver. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be
binding unless the same shall be in writing and duly executed by the
parties hereto, except that any of the terms or provisions of this
Agreement may be waived in writing at any time by the party which is
entitled to the benefits of such waived terms or provisions. No waiver
of any of the provisions of this Agreement shall be deemed to or shall
constitute a waiver of any other provision hereof (whether or not
similar). No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
Section 8.10 Expenses. Except as otherwise provided herein,
China Stationery and Global Arena shall pay all costs and expenses
incurred by them or it or on their or its behalf in connection with
this Agreement and the transactions contemplated hereby, including,
without limiting the generality of the foregoing, fees and expenses of
their respective financial consultants, accountants and counsel.
Section 8.11 Severability. If any provision of this Agreement is
held to be void, illegal or unenforceable under present or future laws,
such provision shall be fully severable and this Agreement shall be
construed and enforced as if such void, illegal or unenforceable
provision never comprised a part hereof, and the remaining provisions
of this Agreement shall remain in full force and effect and shall not
be affected in any way by the void, illegal or unenforceable provision
or by its severance herefrom. Furthermore, in lieu of such severed
provision, there shall be added automatically as part of this Agreement
a provision as similar in its terms to such severed provision as may be
possible and be valid, legal and enforceable
IN WITNESS WHEREOF, China Stationery and Global Arena, by their duly
authorized officers, have executed and delivered this Agreement
effective as of the date first above written.
Global Arena Holding Subsidiary Corp.
By: /s/John Matthews
--------------------------
John Matthews
Chief Executive Officer
Attest:
/s/Josh Winkler
---------------------------
Josh Winkler
Chief Financial Officer
China Stationery and Office Supply, Inc.
By: /s/John Matthews
--------------------------
John Matthews
Chief Executive Officer
Attest:
/s/Josh Winkler
---------------------------
Josh Winkler
Director
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