EXHIBIT 2.1
STOCK EXCHANGE AGREEMENT
This Agreement dated as of the 2nd day of June, 2006, by and among Franklyn
Resources III, Inc., a Nevada corporation whose address is P. O. Box 461029,
Glendale, Colorado 80246 (the "Issuer"), Sinoenergy Holding Limited, a
corporation organized under the laws of the British West Indies with offices at
Akara Building, 24 De Castro Street, Wickhams Cay I, Road Town, Tortola, British
Virgin Islands ("Sinoenergy"), Skywide Capital Management Limited, a corporation
organized under the laws of the British West Indies with offices at Portcullis
TrustNet Chambers, Road Town, Tortola, British Virgin Islands ("Skywide"), and
Eastpride Capital Limited, a corporation organized under the laws of the British
West Indies with offices at Akara Building, 24 De Castro Street, Wickhams Cay I,
Road Town, Tortola, British Virgin Islands ("Eastpride," and, together with
Skywide, the "Stockholders" and each, individually, a "Stockholder").
W I T N E S S E T H:
WHEREAS, the Stockholders are the holders of all of the issued and
outstanding capital of Sinoenergy (the "Sinoenergy Shares"); and
WHEREAS, the Issuer desires to acquire all of the Sinoenergy Shares, which
represent all of the capital stock of Sinoenergy, from the Stockholders, and is
willing to issue shares of its common stock, par value $.001 per share ("Common
Stock"), to the Stockholders in exchange for the Sinoenergy Shares on and
subject to the terms and conditions of this Agreement; and
WHEREAS, this Agreement sets forth the terms and conditions on which the
Stockholders are transferring the Sinoenergy Shares to the Issuer; and
WHEREAS, Sinoenergy owns all of the issued and outstanding capital stock
of Qingdau Sinogas General Machinery Corporation, a Chinese corporation which is
qualified as a WOFE ("Sinogas"),
NOW, THEREFORE, for the mutual consideration set out herein, the parties
agree as follows:
1. Exchange of Shares.
(a) Issuance of Shares by Issuer. On and subject to the conditions
set forth in this Agreement, the Issuer will issue to Stockholders, in exchange
for all of the capital of Sinoenergy, which is represented by the Sinoenergy
Shares, an aggregate of 14,215,385 shares of Common Stock (the "Shares"). The
Shares will be issued to the Stockholders in the amounts set forth after their
respective names in Schedule A to this Agreement.
(b) Transfer of Sinoenergy Shares by the Stockholders. On and
subject to the conditions set forth in this Agreement, the Stockholders will
transfer to the Issuer all of the Sinoenergy Shares in exchange for the Shares.
Each Stockholder holds the number of Sinoenergy Shares set forth after his or
her name in Schedule A to this Agreement.
(c) Closing. The issuance of the Shares to the Stockholders and
the transfer of the Sinoenergy Shares to the Issuer will take place at a closing
(the "Closing") to be held at the office of Katsky Korins LLP, 605 Third Avenue,
New York, New York 10158 as soon as possible after or contemporaneously with the
satisfaction or waiver of all of the conditions to closing set forth in Sections
4 and 5 of this Agreement.
2. Representations and Warranties of the Issuer. The Issuer hereby
represents and warrants to the Stockholders as follows:
(a) General.
(i) The Issuer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. The Issuer
does not have any equity investment or other interest, direct or indirect, in,
or any outstanding loans, advances or guarantees to or on behalf of, any
domestic or foreign corporation, limited liability company, association,
partnership, joint venture or other entity.
(ii) Complete and correct copies of the Issuer's certificate
of incorporation and by-laws are available for review on the Edgar system
maintained by the United States Securities and Exchange Commission (the
"Commission").
(iii) The has authorized capital stock consisting of
25,000,000 shares of Common Stock, of which 3,336,000 shares, including the
Shares, are presently issued and outstanding. Each Seller owns the Shares listed
after such Seller's name on Exhibit A to this Agreement, free and clear of all
any and all liens, claims, encumbrances, preemptive rights, right of first
refusal and adverse interests of any kind. Pursuant to a separate agreement, the
Issuer is acquiring 3,305,000 shares of Common Stock contemporaneously with the
Closing.
(iv) The Issuer has full power and authority to carry out the
transactions provided for in this Agreement, and this Agreement constitutes the
legal, valid and binding obligations of the Issuer, enforceable in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency and other laws of general application affecting the
enforcement of creditor's rights and except that any remedies in the nature of
equitable relief are in the discretion of the court. All necessary action
required to be taken by the Issuer for the consummation of the transactions
contemplated by this Agreement has been taken.
(v) The Shares, when issued pursuant to this Agreement, will
be duly and validly authorized and issued, fully paid and non-assessable. The
issuance of the Shares to Stockholders is exempt from the registration
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to an exemption provided by Section 4(2) thereunder.
(vi) Except as contemplated by this Agreement and except as
contemplated by a securities purchase agreement dated the date of this Agreement
among the Issuer, Barron Partners LP and JCAR Funds Ltd., the Issuer is not a
party to any agreement or understanding pursuant to which any securities of any
class of capital stock are to be issued or created or transferred, and the
Issuer does not have any agreements, plans, understandings or proposals, whether
formal or informal or whether oral or in writing, pursuant to which it or he
granted or may have issued or granted any individual or entity any Convertible
Securities or any interest in the Issuer or the Issuer's earnings or profits,
however defined. As used in this Agreement, the term "Convertible Securities"
shall mean any options, rights, warrants, convertible debt, equity securities or
other instrument or agreement upon the exercise or conversion of which or upon
the exchange of which or pursuant to the terms of which additional shares of any
class of capital stock of the Issuer may be issued.
(b) Financial. The Issuer's audited balance sheet at December 31,
2005 and the results of its operations and cash flows for the years ended
December 31, 2005 and 2004, and for the period from inception (March 2, 1999) to
December 31, 2005, audited by Comiskey & Company, are included in the Issuer's
Form 10-KSB for the year ended December 31, 2005, and its unaudited balance
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sheet at March 31 2006 and the related statements of operations and cash flows
for the three months ended March 31, 2006 and 2005 are included in the Issuer's
Form 10-QSB for the quarter ended March 31, 2006. Such financial statements are
collectively referred to as the "Issuer Financial Statement" and have been made
available to the Stockholder on the Edgar system of the Commission. The Issuer
Financial Statements are in accordance with all books, records and accounts of
the Issuer, have been prepared in accordance with generally accepted accounting
principles, consistently applied, except that the Issuer Financial Statements
for the period ended March 31, 2006 and 2005 do not include statements or other
information which is not required to be included in a Form 10-QSB. Comiskey &
Company is independent as to the Issuer under the rules of the Commission
pursuant to the Securities Act. The Issuer Financial Statements present fairly
the financial position of the Issuer at the respective balance sheet dates, and
fairly present the results of the Issuer's operations, changes in stockholders'
equity and cash flows for the periods covered in accordance with generally
accepted accounting principles consistently applied. The Issuer Financial
Statements for the periods ended March 31, 2006 and 2005 include all adjustments
(which include only normal recurring adjustments) necessary to present fairly
the information for such period.
(i) At the close of business on March 31, 2006, the Issuer
did not have any material liabilities, absolute or contingent, of the type
required to be reflected on balance sheets prepared in accordance with generally
accepted accounting principles which are not fully reflected, reserved against
or disclosed on the March 31, 2006 balance sheet. The Issuer has not guaranteed
or assumed or incurred any obligation with respect to any debt or obligations of
any Person, except endorsements made in the ordinary course of business in
connection with the deposit of items for collection and except as disclosed in
the Issuer Financial Statements and the SEC Documents, as hereinafter defined.
The Issuer has no debts, contracts, guaranty, standby, indemnity or hold
harmless commitments, liabilities or obligations of any kind, character or
description, whether accrued, absolute, contingent or otherwise, or due or to
become due except to the extent set forth or noted in the Issuer Financial
Statement, and not heretofore paid or discharged. As used in this Agreement, the
term "Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or a
governmental entity (or any department, agency or political subdivision
thereof).
(ii) Since March 31, 2006, there has not been any Material
Adverse Change affecting the Issuer or any damage or destruction, whether
covered by insurance or not, affecting the business, property or assets of the
Issuer, it being understood that the Issuer is not engaged in any active
business activity, but is incurring expenses in the normal course of operations
as a public company. A Material Adverse Change, with respect to any party to
this Agreement, means any material adverse change in the business, operations,
assets, financial condition, operating results, liabilities, employee relations
or prospects of such party or which would affect the ability of a party to
consummate the transactions contemplated by this Agreement. For purposes of this
Agreement, a change in a party's prospects shall not be deemed a Material
Adverse Change if such change resulted from general economic conditions,
including economic conditions applicable to a specific industry.
(c) SEC Documents. The Issuer is registered pursuant to Section 12
of the Exchange Act and it current with its reporting obligations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). None of the
Issuer's filings made pursuant to the Exchange Act (collectively, the "Issuer
SEC Documents") contains any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Issuer SEC Documents, as of their respective dates, complied
in all material respects with the requirements of the Exchange Act, and the
rules and regulations of the Commission thereunder, and are available on the
Commission's EDGAR system.
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(d) Property. The Issuer does not owns any real property or
intellectual property rights.
(e) Litigation. There are no material claims, actions, suits,
proceedings, inquiries, labor disputes or investigations (whether or not
purportedly on behalf of the Issuer) pending or, to the Issuer's Best Knowledge,
threatened against the Issuer or any of its assets, at law or in equity or by or
before any governmental entity or in arbitration or mediation. No bankruptcy,
receivership or debtor relief proceedings are pending or, to the best of the
Issuer's knowledge, threatened against the Issuer.
(f) Compliance with Laws. The Issuer has complied with, is not in
violation of, and has not received any notices of violation with respect to, any
federal, state, local or foreign Law, judgment, decree, injunction or order,
applicable to it, the conduct of its business, or the ownership or operation of
its business. References in this Agreement to "laws" shall refer to any laws,
rules or regulations of any Chinese or United States, as the case may be,
federal, state or local government or any governmental or quasi-governmental
agency, bureau, commission, instrumentality or judicial body (including, without
limitation, any federal or state securities law, regulation, rule or
administrative order).
(g) No Broker. The Issuer has not employed or engaged any broker
or finder or incurred any liability for any brokerage fees, commissions or
finders' fees in connection with the transactions contemplated by this
Agreement. The Issuer shall indemnify and hold Sinoenergy and the Stockholders
harmless from and against any manner of loss, damage, liability or expense,
including reasonable fees and expenses of counsel, as a result of any fees or
commissions due to any finder or broker for compensation in connection with the
transactions contemplated by this Agreement. The obligations of the Issuer
pursuant to this Section 2(i) shall survive the Closing.
(h) Reliance by Stockholders. The representations and warranties
set forth in this Section 3, taken together, do not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements contained herein and therein, when taken together, not misleading.
Notwithstanding the foregoing, Stockholders acknowledges that no representation
or warranty is made by the Issuer with respect to any projections made by the
Issuer.
3. Representations and Warranties of Stockholders. The Stockholders
jointly and severally (except as to Section 3(b),of this Agreement as to which
the representations and warranties are several) represent and warrant to the
Issuer as follows:
(a) Organization.
(i) Sinoenergy is a company, duly organized, validly
existing and in good standing under the laws of the British West Indies and it
owns all of the capital stock and equity of Qingdau Sinogas General Machinery
Corporation, a corporation organized under the laws of the People's Republic of
China and it has full power and authority to carry on its business as and where
such business is operated. All necessary company action required to be taken by
Sinoenergy and the Stockholders relating to the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement has been duly and validly taken, and this Agreement constitutes the
legal, valid and binding and enforceable obligation of Stockholders, except as
enforceability may be limited by bankruptcy, insolvency and other laws of
general application affecting the enforcement of creditor's rights and that any
remedies in the nature of equitable relief are in the discretion of the court.
All necessary action required to be taken by Stockholders for the consummation
of the transactions contemplated by this Agreement has been taken, and all
regulatory approval of .
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(ii) The execution and performance of this Agreement will not
violate or conflict with any provision of Sinoenergy's certificate of
incorporation, by-laws or other organizational documents. No approval or consent
of, or notice to or filing with, any Person not a party to this Agreement or any
governmental or quasi-governmental agency, is necessary to authorize the
execution or delivery of this Agreement or the consummation of any of the
transactions contemplated herein by Stockholders other than approvals which have
been obtained or will have been obtained at or prior to Closing.
(iii) The capital of Sinoenergy is represented solely by the
Sinoenergy Shares. Sinoenergy is not a party to any agreement or understanding
pursuant to which any securities of any class of capital stock or any interest
in the capital of Sinoenergy is to be issued or created or transferred, and
Sinoenergy does not have any agreements, plans, understandings or proposals,
whether formal or informal or whether oral or in writing, pursuant to which it
or he granted or may have issued or granted any individual or entity any
Convertible Securities or any interest in Sinoenergy or Sinoenergy's earnings or
profits, however defined.
(b) Several Representations by the Stockholders. Each Stockholder,
for itself:
(i) Is the sole record and beneficial owner of the
Sinoenergy Shares set forth after his or her name in Schedule A to this
Agreement, subject to no Claim.
(ii) Is a British West Indies corporation.
(iii) Has full power and authority to carry out the
transactions provided for in this Agreement, and this Agreement constitutes the
legal, valid and binding obligations of such Stockholder, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency and other laws of general application affecting the
enforcement of creditor's rights and that any remedies in the nature of
equitable relief are in the discretion of the court. All necessary action
required to be taken by Stockholders for the consummation of the transactions
contemplated by this Agreement has been taken.
(iv) Is an accredited investor within the meaning of Rule 501
of the Commission pursuant to the Securities Act;
(v) Is acquiring the Shares pursuant to this Agreement for
investment and not with a view to the sale or distribution thereof;
(vi) Understands that the Shares constitute restricted
securities within the meaning of Rule 144 of the Commission pursuant to the
Securities Act and may not be sold or otherwise transferred except pursuant to
an effective registration statement or an exemption from the registration
requirements of the Securities Act;
(vii) Has been advised by counsel as to the meaning and
implication of the acquisition of restricted securities and the illiquid nature
of the Shares;
(viii) Acknowledges that the certificate or certificates for
the Shares will bear the Issuer's customary Securities Act restrictive legend;
(ix) Represents that he or she understands that an investment
in the Shares involves a high degree of risk; and
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(x) Represents that the execution and performance of this
Agreement will not constitute a breach of any contract to which such Stockholder
is a party or by which he or she is bound, and will not violate any judgment,
decree, order, writ, rule, statute, or regulation applicable to such
Stockholders or his or her properties.
(c) Financial Statements.
(i) Sinoenergy has delivered to the Issuer the following
financial statements (collectively, the "Sinoenergy Financial Statements") of
Sinogas: Audited balance sheet at December 31, 2005 and the statements of
operations, stockholders' equity, cash flow and notes thereto for the two years
in the period then ended, certified by Schwartz Levitsky Feldman, LLP, and the
unaudited balance sheet as of March 31, 2006 and the statements of operations,
cash flows and notes to financial statements for the three months ended March
31, 2006 and 2005 and stockholders' equity for the three months ended September
30, 2005, which have been reviewed, but not audited, by Schwartz Levitsky
Feldman, LLP. The Sinoenergy Financial Statements are in accordance with all
books, records and accounts of Sinoenergy, have been prepared in accordance with
United States generally accepted accounting principles consistently applied and
the requirements of the PACOB, except that the Sinoenergy Financial Statements
for the period ended September 30, 2005 do not include information which is not
required to be included in a Form 10-Q. Schwartz Levitsky Feldman, LLP is
independent as to the Issuer under the rules of the Commission pursuant to the
Securities Act. The Sinoenergy Financial Statements present fairly the financial
position of Sinogas at the respective balance sheet dates, and fairly present
the results of Sinogas' operations, changes in stockholders' equity and cash
flows for the periods covered in accordance with generally accepted accounting
principles consistently applied. The Sinoenergy Financial Statements for the
periods ended March 31, 2006 and 2005 include all adjustments (which include
only normal recurring adjustments) necessary to present fairly the information
for such period.
(ii) At the close of business on March 31, 2006, Sinoenergy
did not have any material liabilities, absolute or contingent, of the type
required to be reflected on balance sheets prepared in accordance with generally
accepted accounting principles which are not fully reflected, reserved against
or disclosed on the March 31, 2006 balance sheet. Sinogas has not guaranteed or
assumed or incurred any obligation with respect to any debt or obligations of
any Person, except endorsements made in the ordinary course of business in
connection with the deposit of items for collection and except as disclosed in
the Sinoenergy Financial Statements. Sinogas has no debts, contracts, guaranty,
standby, indemnity or hold harmless commitments, liabilities or obligations of
any kind, character or description, whether accrued, absolute, contingent or
otherwise, or due or to become due except to the extent set forth or noted in
the Sinoenergy Financial Statement, and not heretofore paid or discharged.
(iii) Except as disclosed in the Sinoenergy Financial
Statements, since March 31, 2006, there has not been any Material Adverse Change
affecting Sinoenergy or Sinogas or any damage or destruction, whether covered by
insurance or not, affecting the business, property or assets of Sinoenergy or
Sinogas.
(d) Litigation. There are no material claims, actions, suits,
proceedings, inquiries, labor disputes or investigations (whether or not
purportedly on behalf of Sinoenergy) pending or, to Sinoenergy's or any
Stockholder's Best Knowledge, threatened against Sinogas or Sinoenergy or any of
their respective assets, at law or in equity or by or before any governmental
entity or in arbitration or mediation. No bankruptcy, receivership or debtor
relief proceedings are pending or, to the best of Stockholder's knowledge,
threatened against Sinoenergy.
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(e) No Broker. Neither the Stockholders nor Sinoenergy has
employed or engaged any broker or finder or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with the transactions
contemplated by this Agreement. Stockholders shall indemnify and hold the Issuer
harmless from and against any manner of loss, damage, liability or expense,
including reasonable fees and expenses of counsel, as a result of any fees or
commissions due to any finder or broker for compensation in connection with the
transactions contemplated by this Agreement as a result of the conduct by, or
agreements entered into by, Stockholders. This obligations of Stockholders
pursuant to this Section 3(k) shall survive the Closing.
(f) Reliance by the Issuer. The representations and warranties set
forth in this Section 3 do not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements contained
herein and therein, when taken together, not misleading.
(g) Registration Rights. The Stockholders shall have the
registration rights with respect to the Shares as are set forth in Exhibit B to
this Agreement. The shares shall be subject to a lock-up, as provided in said
Exhibit B.
4. Conditions to the Obligation of the Issuer. The obligations of the
Issuer under this Agreement are subject to the satisfaction of the following
conditions unless waived by the Issuer:
(a) Representations and Warranties. On the Closing Date, the
representations and warranties of Stockholders shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as if made on such date, and Stockholders shall have performed all of its
obligations required to be performed by it pursuant to this Agreement at or
prior to the Closing Date, and the Issuer shall have received the certificate of
Stockholders to such effect and as to matters set forth in Section 4(b) of this
Agreement..
(b) No Material Adverse Change. No Material Adverse Change in the
business or financial condition of Sinoenergy or Sinogas shall have occurred or
be threatened since the date of this Agreement, and no action, suit or
proceedings shall be threatened or pending before any court of governmental
agency or authority or regulatory body seeking to restraint, prohibition or the
obtain damages or other relief in connection with this Agreement or the
consummation of the transactions contemplated by this Agreement or that, if
adversely decided, has or may have a material adverse effect on any of the
assets, properties, business, prospects, operations or financial condition of
Sinoenergy.
5. Conditions to the Obligation of Stockholders. The obligations of
Stockholders under this Agreement are subject to the satisfaction of the
following conditions unless waived by Stockholders:
(a) Representations and Warranties. On the Closing Date, the
representations and warranties of the Issuer shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as if made on such date, and the Issuer shall have performed all of its
respective obligations required to be performed by it pursuant to this Agreement
at or prior to the Closing Date, and Stockholders shall have received the
certificate of the Issuer to such effect and as to matters set forth in Section
5(b) of this Agreement.
(b) No Material Adverse Change. No Material Adverse Change in the
business or financial condition of the Issuer shall have occurred or be
threatened since the date of this Agreement, and no action, suit or proceedings
shall be threatened or pending before any court of governmental agency or
authority or regulatory body seeking to restraint, prohibition or the obtain
damages or other relief in connection with this Agreement or the consummation of
the transactions contemplated by this
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Agreement or that, if adversely decided, has or may have a material adverse
effect on any of the assets, properties, business, prospects, operations or
financial condition of the Issuer.
(c) Investment by Barron Partners. Barron Partners shall have
invested not less than US$3,400,000 in the Issuer pursuant to the Barron
Agreement, the net proceeds of which are to be used to provide Sinoenergy with
working capital.
(d) SEC Filings. The Issuer shall be current with its filings
pursuant to the Exchange Act.
(e) Other Instruments. the Issuer shall have delivered such other
documents as counsel for Stockholders may reasonably request.
6. Termination.
(a) Basis For Termination. This Agreement may be terminated prior
to the Closing Date:
(i) By the written agreement of the parties.
(ii) By either party in the event that the other party shall
have breached its representations, warranties, covenants and agreements in any
material respect or failed to comply in any material respect with their
respective obligations pursuant to this Agreement in any material respect, and
such failure shall have continued for more than thirty (30) days after notice
thereof, in reasonable detail, shall have been given by the party seeking to
terminate this Agreement.
(iii) By either party if the conditions to such party's
obligation to close shall not have been satisfied or waived.
(iv) By either party if the Closing shall not have taken
place by June 15, 2006 other than as a result of a breach by the party seeking
to terminate this Agreement pursuant to this Section 6(a)(iv).
(b) Effect of Termination. In the event of a termination of this
Agreement pursuant to this Section 6, neither party shall have any obligation or
liability to the other, and each party shall bear its own expenses.
7. Miscellaneous.
(a) Entire Agreement. This Agreement, including the Exhibits and
the Schedule, which constitutes integral parts of this Agreement, constitutes
the entire agreement of the parties, superseding and terminating any and all
prior or contemporaneous oral and written agreements, understandings or letters
of intent between or among the parties with respect to the subject matter of
this Agreement. No part of this Agreement may be modified or amended, nor may
any right be waived, except by a written instrument which expressly refers to
this Agreement, states that it is a modification or amendment of this Agreement
and is signed by the parties to this Agreement, or, in the case of waiver, by
the party granting the waiver. No course of conduct or dealing or trade usage or
custom and no course of performance shall be relied on or referred to by any
party to contradict, explain or supplement any provision of this Agreement, it
being acknowledged by the parties to this Agreement that this Agreement is
intended to be, and is, the complete and exclusive statement of the agreement
with respect to its subject matter. Any waiver shall be limited to the express
terms thereof and shall not
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be construed as a waiver of any other provisions or the same provisions at any
other time or under any other circumstances.
(b) Severability. If any section, term or provision of this
Agreement shall to any extent be held or determined to be invalid or
unenforceable, the remaining sections, terms and provisions shall nevertheless
continue in full force and effect.
(c) Notices. All notices provided for in this Agreement shall be
in writing signed by the party giving such notice, and delivered personally or
sent by overnight courier, mail or messenger against receipt thereof or sent by
registered or certified mail, return receipt requested, or by facsimile
transmission or similar means of communication if receipt is confirmed or if
transmission of such notice is confirmed by mail as provided in this Section
7(c). Notices shall be deemed to have been received on the date of personal
delivery or telecopy or attempted delivery. Notice shall be delivered to the
parties at the following addresses:
If to the Issuer:
c/o Asher S. Levitsky PC
Katsky Korins LLP
605 Third Avenue
New York, New York 10158
Facsimile: 212/716-3239
If to Sinoenergy or the Stockholders: To their respective address set forth
at the beginning of this agreement, to
the attention of the person signing
this Agreement.
With a copy to: Asher S. Levitsky P.C.
Katsky Korins LLP
605 Third Avenue
New York, New York 10158
Facsimile: 212/716-3239
Any party may, by like notice, change the address, person or telecopier number
to which notice shall be sent.
(d) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York applicable to agreements
executed and to be performed wholly within such State, without regard to any
principles of conflicts of law; provided, however, that the transfer of the
Sinoenergy Shares to the Issuer shall be in compliance with the law of the
British West Indies. Each of the parties hereby irrevocably consents and agrees
that any legal or equitable action or proceeding arising under or in connection
with this Agreement shall be brought in the federal or state courts located in
the County of New York in the State of New York, by execution and delivery of
this Agreement, irrevocably submits to and accepts the jurisdiction of said
courts, (iii) waives any defense that such court is not a convenient forum, and
(iv) consent to any service of process made either (x) in the manner set forth
in Section 7(c) of this Agreement (other than by telecopier), or (y) any other
method of service permitted by law.
(e) Survival of Representations and Warranties. The
representations and warranties shall terminate at, and shall not survive, the
Closing, except that the representations set forth in Sections 2(g) and 3(e)
shall survive the Closing.
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(f) Waiver of Jury Trial. EACH PARTY HEREBY EXPRESSLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN THE EVENT OF ANY SUIT, ACTION OR PROCEEDING TO
ENFORCE THIS AGREEMENT OR ANY OTHER ACTION OR PROCEEDING WHICH MAY ARISE OUT OF
OR IN ANY WAY BE CONNECTED WITH THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS.
(g) Parties to Pay Own Expenses. Each of the parties to this
Agreement shall be responsible and liable for its own expenses incurred in
connection with the preparation of this Agreement, the consummation of the
transactions contemplated by this Agreement and related expenses.
(h) Tax Consequences. Each party to this Agreement is relying on
his or its own tax advisors as to the tax consequences of this Agreement and the
transactions contemplated by this Agreement, and no party is making any
representations or warranties of any kind as to such tax consequences to any
other party.
(i) Successors. This Agreement shall be binding upon the parties
and their respective heirs, executors, administrators, legal representatives,
successors and assigns; provided, however, that Stockholders may not assign this
Agreement or any of its rights under this Agreement without the prior written
consent of the Issuer.
(j) Further Assurances. Each party to this Agreement agrees,
without cost or expense to any other party, to deliver or cause to be delivered
such other documents and instruments as may be reasonably requested by any other
party to this Agreement in order to carry out more fully the provisions of, and
to consummate the transaction contemplated by, this Agreement.
(k) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
(l) No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties with the advice of
counsel to express their mutual intent, and no rules of strict construction will
be applied against any party.
(m) Headings. The headings in the Sections of this Agreement are
inserted for convenience only and shall not constitute a part of this Agreement.
(n) Exhibits; Schedules. One complete set of the Exhibits and
Schedules has been marked for identification and delivered by each of the
parties to the other on or before the execution and delivery of this Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
FRANKLYN HOLDINGS III, INC.
By:___________________________________
Name:
Title:
STOCKHOLDERS
SINOENERGY HOLDING LIMITED
By:___________________________________
Name:
Title:
SKYWIDE CAPITAL MANAGEMENT LIMITED
By:___________________________________
Name:
Title:
EASTPRIDE CAPITAL LIMITED
By:___________________________________
Name:
Title:
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Schedule A
Information Concerning Stockholders
Name and Address Sinoenergy Shares Shares
- ---------------------------------- ----------------- ----------
Skywide Capital Management Limited 45 12,793,847
Eastpride Capital Limited 5 1,421,538
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