SHARE EXCHANGE AGREEMENT
GAS INVESTMENT CHINA CO., LTD.
FOR THE EXCHANGE OF
CAPITAL STOCK
OF
DOLCE VENTURES, INC.
DATED AS OF SEPTEMBER 7, 2006
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, dated as of September 7, 2006 (the
"Agreement") by and among, GAS INVESTMENT CHINA CO., LTD., an International
Business Company incorporated in the British Virgin Islands ("GIC"), DOLCE
VENTURES, INC., a Utah corporation ("Dolce"), and all of the members of GIC,
whose names are set forth on Exhibit A attached hereto ("SHAREHOLDERS").
WHEREAS, SHAREHOLDERS own 100% of the issued and outstanding capital stock
of GAS (the "GIC Shares");
WHEREAS, SHAREHOLDERS believe it is in their best interest to exchange the
GIC Shares for shares of Series A Convertible Preferred Stock, par value $.001
per share, of Dolce ("Dolce Shares"), and Dolce believes it is in its best
interests to acquire the GIC Shares in exchange for Dolce Shares, upon the terms
and subject to the conditions set forth in this Agreement; and
WHEREAS, it the intention of the parties that: (i) Dolce shall acquire
100% of the GIC Shares in exchange solely for the amount of Dolce Shares set
forth herein; (ii) said exchange of shares shall qualify as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended (the "Code"); and (iii) said exchange shall qualify as a transaction
in securities exempt from registration or qualification under the Securities Act
of 1933, as amended and in effect on the date of this Agreement (the "Securities
Act").
NOW, THEREFORE, in consideration of the mutual terms, conditions and other
agreements set forth herein, the parties hereto hereby agree as follows:
ARTICLE I
EXCHANGE OF SHARES FOR COMMON STOCK
Section 1.1 Agreement to Exchange GIC Shares for Dolce Shares. On the
Closing Date (as hereinafter defined) and upon the terms and subject to the
conditions set forth in this Agreement, SHAREHOLDERS shall sell, assign,
transfer, convey and deliver the GIC Shares, to Dolce, and Dolce shall accept
the GIC Shares from the SHAREHOLDERS in exchange for the issuance to the
SHAREHOLDERS of the number of Dolce Shares set forth opposite the names of the
SHAREHOLDERS on Exhibit A hereto.
Section 1.2 Capitalization. On the Closing Date, immediately before the
transactions to be consummated pursuant to this Agreement, Dolce shall have
authorized (a) 250,000,000 shares of Common Stock, par value $.001 per share, of
which 100,770,140 shares shall be issued and outstanding, all of which are duly
authorized, validly issued and fully paid; and (b) 100,000,000 shares of
Preferred Stock, $.001 par value, of which no shares are issued or outstanding,
but 20,000,000 shares shall have been designated as Series A Convertible
Preferred Stock and 5,000,000 shares shall have been designated as Series B
Convertible Preferred Stock, par value $.001 per share ("Series B Stock").
Section 1.3 Closing. The closing of the exchange to be made pursuant to
this Agreement (the "Closing") shall take place at 10:00 a.m. E.D.T. on the day
the conditions to closing set forth in Articles V and VI have been satisfied or
waived, or at such other time and date as the parties hereto shall agree in
writing (the "Closing Date"), at the offices of Guzov Ofsink, LLC, 600 Madison
Avenue, 14th Floor, New York, New York 10022. At the Closing, SHAREHOLDERS shall
deliver to Dolce the stock certificates representing 100% of the GIC Shares,
duly endorsed in blank for transfer or accompanied by appropriate stock powers
duly executed in blank. In full consideration and exchange for the GIC Shares,
Dolce shall issue and exchange with SHAREHOLDERS 14,599,942 Dolce Shares as set
forth on Exhibit A.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARALLEL
Dolce hereby represents, warrants and agrees as follows:
Section 2.1 Corporate Organization
a. Dolce is a corporation duly organized, validly existing and in
good standing under the laws of Utah, and has all requisite corporate power and
authority to own its properties and assets and to conduct its business as now
conducted and is duly qualified to do business in good standing in each
jurisdiction in which the nature of the business conducted by Dolce or the
ownership or leasing of its properties makes such qualification and being in
good standing necessary, except where the failure to be so qualified and in good
standing will not have a material adverse effect on the business, operations,
properties, assets, condition or results of operation of Dolce (a "Dolce
Material Adverse Effect");
b. Copies of the Articles of Incorporation and By-laws of Dolce as
well as the Certificates of Designation of the Series A Stock and the Series B
Stock, with all amendments thereto to the date hereof, have been furnished to
GIC and the SHAREHOLDERS, and such copies are accurate and complete as of the
date hereof. The minute books of Dolce are current as required by law, contain
the minutes of all meetings of the Board of Directors and shareholders of Dolce
from its date of incorporation to the date of this Agreement, and adequately
reflect all material actions taken by the Board of Directors and shareholders of
Dolce.
Section 2.2 Capitalization of Dolce. The authorized capital stock of Dolce
consists of (a) 250,000,000 shares of Common Stock, par value $.001 per share,
of which 100,770,140 shares are issued and outstanding, all of which are duly
authorized, validly issued and fully paid; and (b) 100,000,000 shares of
Preferred Stock, $.001 par value, of which no shares are issued or outstanding,
but of which 20,000,000 shares of Series A Stock and 5,000,000 shares of Series
B Stock have been designated. The parties agree that they have been informed of
the issuances of these Dolce Shares, and that all such issuances of Dolce Shares
pursuant to this Agreement will be in accordance with the provisions of this
Agreement. All of the Dolce Shares to be issued pursuant to this Agreement have
been duly authorized and will be validly issued, fully paid and non-assessable
and no personal liability will attach to the ownership thereof. As of the date
of this Agreement there are and as of the Closing Date, there will be, no
outstanding options, warrants, agreements, commitments, conversion rights,
preemptive rights or other rights to subscribe for, purchase or otherwise
acquire any shares of capital stock or any un-issued or treasury shares of
capital stock of Dolce.
Section 2.3 Subsidiaries and Equity Investments. Dolce has no subsidiaries
or equity interest in any corporation, partnership or joint venture other than
as set forth in its filings with the Securities and Exchange Commission.
Section 2.4 Authorization and Validity of Agreements. Dolce has all
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Dolce and the
consummation by Dolce of the transactions contemplated hereby have been duly
authorized by all necessary corporate action of Dolce, and no other corporate
proceedings on the part of Dolce are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby.
Section 2.5 No Conflict or Violation. The execution, delivery and
performance of this Agreement by Dolce does not and will not violate or conflict
with any provision of its Articles of Incorporation or By-laws, and does not and
will not violate any provision of law, or any order, judgment or decree of any
court or other governmental or regulatory authority, nor violate or result in a
breach of or constitute (with due notice or lapse of time or both) a default
under, or give to any other entity any right of termination, amendment,
acceleration or cancellation of, any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
Dolce is a party or by which it is bound or to which any of their respective
properties or assets is subject, nor will it result in the creation or
imposition of any lien, charge or encumbrance of any kind whatsoever upon any of
the properties or assets of Dolce, nor will it result in the cancellation,
modification, revocation or suspension of any of the licenses, franchises,
permits to which Dolce is bound.
Section 2.6 Consents and Approvals. No consent, waiver, authorization or
approval of any governmental or regulatory authority, domestic or foreign, or of
any other person, firm or corporation, is required in connection with the
execution and delivery of this Agreement by Dolce or the performance by Dolce of
its obligations hereunder.
Section 2.7 Absence of Certain Changes or Events. Since its inception:
a. Dolce has operated in the ordinary course of business consistent
with past practice and there has not been any material adverse
change in the assets, properties, business, operations, prospects,
net income or condition, financial or otherwise of Dolce. As of the
date of this Agreement, Dolce does not know or have reason to know
of any event, condition, circumstance or prospective development
which threatens or may threaten to have a material adverse effect on
the assets, properties, operations, prospects, net income or
financial condition of Dolce;
b. there has not been any declaration, setting aside or payment of
dividends or distributions with respect to shares of capital stock
of Dolce or any redemption, purchase or other acquisition of any
capital stock of Dolce or any other of Dolce's securities; and
c. there has not been an increase in the compensation payable or to
become payable to any director or officer of Dolce.
Section 2.8 Disclosure. This Agreement and any certificate attached hereto
or delivered in accordance with the terms hereby by or on behalf of Dolce in
connection with the transactions contemplated by this Agreement, when taken
together, do not contain any untrue statement of a material fact or omit any
material fact necessary in order to make the statements contained herein and/or
therein not misleading.
Section 2.9 Survival. Each of the representations and warranties set forth
in this Article II shall be deemed represented and made by Dolce at the Closing
as if made at such time and shall survive the Closing for a period terminating
on the second anniversary of the date of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GIC AND SHAREHOLDERS
GIC and each of the SHAREHOLDERS, severally, represent, warrant and agree
as follows:
Section 3.1 Corporate Organization. GIC is a company organized as an
International Business Company under the laws of the British Virgin Islands, is
duly formed or organized, validly existing and in good standing under the laws
of its jurisdiction of organization and has the requisite power and authority to
own, lease and operate its assets and properties and to carry on its business as
it is now being or currently planned by GIC to be conducted. GIC is in
possession of all franchises, grants, authorizations, licenses, permits,
easements, consents, certificates, approvals and orders ("Approvals") necessary
to own, lease and operate the properties it purports to own, operate or lease
and to carry on its business as it is now being conducted, and to consummate the
transactions contemplated under this Agreement, except where the failure to have
such Approvals could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
properties, assets, condition or results of operation of GIC. GIC has complete
and correct copies of the articles of organization and bylaws or similar
governing, organization or charter documents (collectively referred to herein as
"Charter Documents"). GIC is not in violation of any of the provisions of its
Charter Documents. GIC is in good standing in the British Virgin Islands. The
minute books or the equivalent contain true, complete and accurate records of
meetings and consents in lieu of meetings of its board of directors (and any
committees thereof), similar governing bodies and stockholders ("Corporate
Records") of GIC, since the time of its organization. The ownership records of
GIC's Shares are true, complete and accurate records of the ownership of the
Shares as of the date of such records and contain all transfers of such Shares
since the time of GIC's organization ("Share Records").
Section 3.2 Capitalization of GIC; Title to the GIC Shares. On the Closing
Date, immediately before the transactions to be consummated pursuant to this
Agreement, GIC shall have authorized _________________ (___________) GIC Shares,
of which ___________ GIC Shares will be issued and outstanding. The GIC Shares
are the sole outstanding shares of capital stock of GIC, and there are no
outstanding options, warrants, agreements, commitments, conversion rights,
preemptive rights or other rights to subscribe for, purchase or otherwise
acquire any shares of capital stock or any un-issued or treasury shares of
capital stock of GIC.
Section 3.3 Subsidiaries and Equity Investments; Assets. Each of the
subsidiaries and affiliated companies of GIC are set forth on Schedule 3.3.
Section 3.4 Authorization and Validity of Agreements. GIC has all
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by GIC and the consummation
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action and no other corporate proceedings on the part of GIC
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. The SHAREHOLDERS have approved this Agreement on behalf of
GIC and no other stockholder approvals are required to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by each SHAREHOLDER which is not a natural person ("Entity Shareholder") and the
consummation of the transactions contemplated hereby by each Entity Shareholder
have been duly authorized by all necessary action by the Entity Shareholder and
no other proceedings on the part of GIC or any SHAREHOLDER are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.
Section 3.5 No Conflict or Violation. The execution, delivery and
performance of this Agreement by GIC or any SHAREHOLDER does not and will not
violate or conflict with any provision of the constituent documents of GIC, and
does not and will not violate any provision of law, or any order, judgment or
decree of any court or other governmental or regulatory authority, nor violate,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under or give to any other entity any right of termination, amendment,
acceleration or cancellation of any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to which
GIC or any SHAREHOLDER is a party or by which it is bound or to which any of its
respective properties or assets is subject, nor result in the creation or
imposition of any lien, charge or encumbrance of any kind whatsoever upon any of
the properties or assets of GIC or any SHAREHOLDER, nor result in the
cancellation, modification, revocation or suspension of any of the licenses,
franchises, permits to which GIC or any SHAREHOLDER is bound.
Section 3.6 Investment Representations. (a) The Dolce Shares will be
acquired hereunder solely for the account of the SHAREHOLDERS, for investment,
and not with a view to the resale or distribution thereof. Each SHAREHOLDER
understands and is able to bear any economic risks associated with such
SHAREHOLDER'S investment in the Dolce Shares. Each SHAREHOLDER has had full
access to all the information such SHAREHOLDER considers necessary or
appropriate to make an informed investment decision with respect to the Dolce
Shares to be acquired under this Agreement. Each SHAREHOLDER further has had an
opportunity to ask questions and receive answers from Dolce's sole director
regarding Dolce and to obtain additional information (to the extent Dolce's
director possessed such information or could acquire it without unreasonable
effort or expense) necessary to verify any information furnished to such
SHAREHOLDER or to which such SHAREHOLDER had access. Each SHAREHOLDER , other
than a SHAREHOLDER which is also a SHAREHOLDER (as such term is hereinafter
defined) is an "accredited investor" (as such term is defined in Rule 501(a) of
Regulation D promulgated by the Securities and Exchange Commission under the
Securities Act).
(b) No offer to enter into this Agreement has been made by Dolce to any of
the SHAREHOLDERS in the United States. At the times of the offer and execution
of this Agreement, each SHAREHOLDER was domiciled and resided outside the United
States. No SHAREHOLDER, nor any affiliate of any SHAREHOLDER, nor any person
acting on behalf of any SHAREHOLDER or any behalf of any such affiliate, has
engaged or will engage in any activity undertaken for the purpose of, or that
reasonably could be expected to have the effect of, conditioning the markets in
the United States for the Dolce Shares, including, but not limited to, effecting
any sale or short sale of securities through any SHAREHOLDER or any of affiliate
of any SHAREHOLDER prior to the expiration of any restricted period contained in
Regulation S promulgated under the Securities Act (any such activity being
defined herein as a "Directed Selling Effort"). To the best knowledge of each of
the SHAREHOLDERs, this Agreement and the transactions contemplated herein are
not part of a plan or scheme to evade the registration provisions of the
Securities Act, and the Dolce Shares are being acquired for investment purposes
by the SHAREHOLDERs. Each SHAREHOLDER agrees that all offers and sales of Dolce
Shares from the date hereof and through the expiration of the any restricted
period set forth in Rule 903 of Regulation S (as the same may be amended from
time to time hereafter) shall not be made to U.S. Persons or for the account or
benefit of U.S. Persons and shall otherwise be made in compliance with the
provisions of Regulation S and any other applicable provisions of the Securities
Act. Neither any SHAREHOLDER nor the representatives of any SHAREHOLDER have
conducted any Directed Selling Effort as that term is used and defined in Rule
902 of Regulation S and no SHAREHOLDER nor any representative of any SHAREHOLDER
will engage in any such Directed Selling Effort within the United States through
the expiration of any restricted period set forth in Rule 903 of Regulation S.
Section 3.7 Brokers' Fees. No SHAREHOLDER has any liability to pay any
fees or commissions or other consideration to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
Section 3.8 Disclosure. This Agreement, the schedules hereto and any
certificate attached hereto or delivered in accordance with the terms hereby by
or on behalf of GIC or the SHAREHOLDERS in connection with the transactions
contemplated by this Agreement, when taken together, do not contain any untrue
statement of a material fact or omit any material fact necessary in order to
make the statements contained herein and/or therein not misleading.
Section 3.8 Survival. Each of the representations and warranties set forth
in this Article III shall be deemed represented and made by GIC and the
SHAREHOLDERS at the Closing as if made at such time and shall survive the
Closing for a period terminating on the second anniversary of the date of this
Agreement.
ARTICLE IV
COVENANTS
Section 4.1 Certain Changes and Conduct of Business.
a. From and after the date of this Agreement and until the
Closing Date, Dolce shall conduct its business solely in the
ordinary course consistent with past practices and, in a manner
consistent with all representations, warranties or covenants of
Dolce, and without the prior written consent of GIC will not, except
as required or permitted pursuant to the terms hereof:
i. make any material change in the conduct of its
businesses and/or operations or enter into any
transaction other than in the ordinary course of
business consistent with past practices;
ii. make any change in its Articles of Incorporation or
By-laws; issue any additional shares of capital stock or
equity securities or grant any option, warrant or right
to acquire any capital stock or equity securities or
issue any security convertible into or exchangeable for
its capital stock or alter in any material term of any
of its outstanding securities or make any change in its
outstanding shares of capital stock or its
capitalization, whether by reason of a reclassification,
recapitalization, stock split or combination, exchange
or readjustment of shares, stock dividend or otherwise;
iii. A. incur, assume or guarantee any indebtedness for
borrowed money, issue any notes, bonds, debentures
or other corporate securities or grant any option,
warrant or right to purchase any thereof, except
pursuant to transactions in the ordinary course of
business consistent with past practices; or
B. issue any securities convertible or exchangeable
for debt or equity securities of Dolce;
iv. make any sale, assignment, transfer, abandonment or
other conveyance of any of its assets or any part
thereof, except pursuant to transactions in the ordinary
course of business consistent with past practice;
v. subject any of its assets, or any part thereof, to any
lien or suffer such to be imposed other than such liens
as may arise in the ordinary course of business
consistent with past practices by operation of law which
will not have an Dolce Material Adverse Effect;
vi. acquire any assets, raw materials or properties, or
enter into any other transaction, other than in the
ordinary course of business consistent with past
practices;
vii. enter into any new (or amend any existing) employee
benefit plan, program or arrangement or any new (or
amend any existing) employment, severance or consulting
agreement, grant any general increase in the
compensation of officers or employees (including any
such increase pursuant to any bonus, pension,
profit-sharing or other plan or commitment) or grant any
increase in the compensation payable or to become
payable to any employee, except in accordance with
pre-existing contractual provisions or consistent with
past practices;
viii. make or commit to make any material capital
expenditures;
ix. pay, loan or advance any amount to, or sell, transfer or
lease any properties or assets to, or enter into any
agreement or arrangement with, any of its affiliates;
x. guarantee any indebtedness for borrowed money or any
other obligation of any other person;
xi. fail to keep in full force and effect insurance
comparable in amount and scope to coverage maintained by
it (or on behalf of it) on the date hereof;
xii. take any other action that would cause any of the
representations and warranties made by it in this
Agreement not to remain true and correct in all material
aspect;
xiii. make any material loan, advance or capital contribution
to or investment in any person;
xiv. make any material change in any method of accounting or
accounting principle, method, estimate or practice;
xv. settle, release or forgive any claim or litigation or
waive any right;
xvi. commit itself to do any of the foregoing.
b. From and after the date of this Agreement, GIC will:
1. continue to maintain, in all material respects, its
properties in accordance with present practices in a
condition suitable for its current use;
2. file, when due or required, federal, state, foreign and
other tax returns and other reports required to be filed
and pay when due all taxes, assessments, fees and other
charges lawfully levied or assessed against it, unless
the validity thereof is contested in good faith and by
appropriate proceedings diligently conducted;
3. continue to conduct its business in the ordinary course
consistent with past practices;
4. keep its books of account, records and files in the
ordinary course and in accordance with existing
practices; and
5. continue to maintain existing business relationships
with suppliers.
Section 4.2 Access to Properties and Records. GIC shall afford Dolce's
accountants, counsel and authorized representatives, and Dolce shall afford to
GIC's accountants, counsel and authorized representatives full access during
normal business hours throughout the period prior to the Closing Date (or the
earlier termination of this Agreement) to all of such parties' properties,
books, contracts, commitments and records and, during such period, shall furnish
promptly to the requesting party all other information concerning the other
party's business, properties and personnel as the requesting party may
reasonably request, provided that no investigation or receipt of information
pursuant to this Section 4.2 shall affect any representation or warranty of or
the conditions to the obligations of any party.
Section 4.3 Negotiations. From and after the date hereof until the earlier
of the Closing or the termination of this Agreement, no party to this Agreement
nor its officers or directors (subject to such director's fiduciary duties) nor
anyone acting on behalf of any party or other persons shall, directly or
indirectly, encourage, solicit, engage in discussions or negotiations with, or
provide any information to, any person, firm, or other entity or group
concerning any merger, sale of substantial assets, purchase or sale of shares of
capital stock or similar transaction involving any party. A party shall promptly
communicate to any other party any inquiries or communications concerning any
such transaction which they may receive or of which they may become aware of.
Section 4.4 Consents and Approvals. The parties shall:
i. use their reasonable commercial efforts to obtain all
necessary consents, waivers, authorizations and
approvals of all governmental and regulatory
authorities, domestic and foreign, and of all other
persons, firms or corporations required in connection
with the execution, delivery and performance by them of
this Agreement; and
ii. diligently assist and cooperate with each party in
preparing and filing all documents required to be
submitted by a party to any governmental or regulatory
authority, domestic or foreign, in connection with such
transactions and in obtaining any governmental consents,
waivers, authorizations or approvals which may be
required to be obtained connection in with such
transactions.
Section 4.5 Public Announcement. Unless otherwise required by applicable
law, the parties hereto shall consult with each other before issuing any press
release or otherwise making any public statements with respect to this Agreement
and shall not issue any such press release or make any such public statement
prior to such consultation.
Section 4.6 Stock Issuance. From and after the date of this Agreement
until the Closing Date, neither Dolce nor GIC shall issue any additional shares
of its capital stock, except that Dolce may issue up to an aggregate of 216,000
shares of Series B Stock to certain investors pursuant to the terms of a Stock
Purchase Agreement among Dolce, Dalian Fushi Bimetallic Manufacturing Co., Ltd.
and the investors to be entered into on the Closing Date, a draft of which
agreement is attached hereto.
Section 4.7 Notwithstanding anything to the contrary contained herein, it
is herewith understood and agreed that both GIC and Dolce may enter into and
conclude agreements and/or financing transactions as same relate to and/or are
contemplated by any separate written agreements either: (a) annexed hereto as
exhibits; or (b) entered into by Dolce with GIC executed by both parties
subsequent to the date hereof. These Agreements shall become, immediately upon
execution, part of this Agreement and subject to all warranties, representations
and conditions contained herein.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF GIC AND SHAREHOLDERS
The obligations of GIC and the SHAREHOLDERS to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or before the
Closing Date, of the following conditions, any one or more of which may be
waived by both GIC and the SHAREHOLDERS in their sole discretion:
Section 5.1 Representations and Warranties of Dolce. All representations
and warranties made by Dolce in this Agreement shall be true and correct on and
as of the Closing Date as if again made by Dolce as of such date.
Section 5.2 Agreements and Covenants. Dolce shall have performed and
complied in all material respects to all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
Section 5.3 Consents and Approvals. Consents, waivers, authorizations and
approvals of any governmental or regulatory authority, domestic or foreign, and
of any other person, firm or corporation, required in connection with the
execution, delivery and performance of this Agreement shall be in full force and
effect on the Closing Date.
Section 5.4 No Violation of Orders. No preliminary or permanent injunction
or other order issued by any court or governmental or regulatory authority,
domestic or foreign, nor any statute, rule, regulation, decree or executive
order promulgated or enacted by any government or governmental or regulatory
authority, which declares this Agreement invalid in any respect or prevents the
consummation of the transactions contemplated hereby, or which materially and
adversely affects the assets, properties, operations, prospects, net income or
financial condition of Dolce shall be in effect; and no action or proceeding
before any court or governmental or regulatory authority, domestic or foreign,
shall have been instituted or threatened by any government or governmental or
regulatory authority, domestic or foreign, or by any other person, or entity
which seeks to prevent or delay the consummation of the transactions
contemplated by this Agreement or which challenges the validity or
enforceability of this Agreement.
Section 5.5 Other Closing Documents. GIC shall have received such other
certificates, instruments and documents in confirmation of the representations
and warranties of Dolce or in furtherance of the transactions contemplated by
this Agreement as GIC or its counsel may reasonably request.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF DOLCE
The obligations of Dolce to consummate the transactions contemplated by
this Agreement are subject to the fulfillment, at or before the Closing Date, of
the following conditions, any one or more of which may be waived by Dolce in its
sole discretion:
Section 6.1 Representations and Warranties of GIC. All representations and
warranties made by GIC in this Agreement shall be true and correct on and as of
the Closing Date as if again made by GIC on and as of such date.
Section 6.2 Agreements and Covenants. GIC shall have performed and
complied in all material respects to all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the Closing
Date.
Section 6.3 Consents and Approvals. All consents, waivers, authorizations
and approvals of any governmental or regulatory authority, domestic or foreign,
and of any other person, firm or corporation, required in connection with the
execution, delivery and performance of this Agreement, shall have been duly
obtained and shall be in full force and effect on the Closing Date.
Section 6.4 No Violation of Orders. No preliminary or permanent injunction
or other order issued by any court or other governmental or regulatory
authority, domestic or foreign, nor any statute, rule, regulation, decree or
executive order promulgated or enacted by any government or governmental or
regulatory authority, domestic or foreign, that declares this Agreement invalid
or unenforceable in any respect or which prevents the consummation of the
transactions contemplated hereby, or which materially and adversely affects the
assets, properties, operations, prospects, net income or financial condition of
Dolce, taken as a whole, shall be in effect; and no action or proceeding before
any court or government or regulatory authority, domestic or foreign, shall have
been instituted or threatened by any government or governmental or regulatory
authority, domestic or foreign, or by any other person, or entity which seeks to
prevent or delay the consummation of the transactions contemplated by this
Agreement or which challenges the validity or enforceability of this Agreement.
Section 6.5. Other Closing Documents. Dolce shall have received such other
certificates, instruments and documents in confirmation of the representations
and warranties of GIC or in furtherance of the transactions contemplated by this
Agreement as Dolce or its counsel may reasonably request.
ARTICLE VII
TERMINATION AND ABANDONMENT
SECTION 7.1 Methods of Termination. This Agreement may be terminated and
the transactions contemplated hereby may be abandoned at any time before the
Closing:
a. By the mutual written consent of SHAREHOLDERS, GIC and
Dolce;
b. By Dolce, upon a material breach of any representation,
warranty, covenant or agreement on the part of GIC or the
SHAREHOLDERS set forth in this Agreement, or if any
representation or warranty of GIC or the SHAREHOLDERS shall
become untrue, in either case such that any of the conditions
set forth in Article VI hereof would not be satisfied (a "GIC
Breach"), and such breach shall, if capable of cure, has not
been cured within ten (10) days after receipt by the party in
breach of a notice from the non-breaching party setting forth
in detail the nature of such breach;
c. By GIC, upon a material breach of any representation,
warranty, covenant or agreement on the part of Dolce set forth
in this Agreement, or, if any representation or warranty of
Dolce shall become untrue, in either case such that any of the
conditions set forth in Article V hereof would not be
satisfied (a "Dolce Breach"), and such breach shall, if
capable of cure, not have been cured within ten (10) days
after receipt by the party in breach of a written notice from
the non-breaching party setting forth in detail the nature of
such breach;
d. By either Dolce or GIC, if the Closing shall not have
consummated before ninety (90) days after the date hereof;
provided, however, that this Agreement may be extended by
written notice of either GIC or Dolce, if the Closing shall
not have been consummated as a result of Dolce or GIC having
failed to receive all required regulatory approvals or
consents with respect to this transaction or as the result of
the entering of an order as described in this Agreement; and
further provided, however, that the right to terminate this
Agreement under this Section 7.1(d) shall not be available to
any party whose failure to fulfill any obligations under this
Agreement has been the cause of, or resulted in, the failure
of the Closing to occur on or before this date.
e. By either GIC or Dolce if a court of competent jurisdiction
or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or
taken any other action (which order, decree or ruling the
parties hereto shall use its best efforts to lift), which
permanently restrains, enjoins or otherwise prohibits the
transactions contemplated by this Agreement.
Section 7.2 Procedure Upon Termination. In the event of termination and
abandonment of this Agreement by GIC or Dolce pursuant to Section 7.1, written
notice thereof shall forthwith be given to the other parties and this Agreement
shall terminate and the transactions contemplated hereby shall be abandoned,
without further action. If this Agreement is terminated as provided herein, no
party to this Agreement shall have any liability or further obligation to any
other party to this Agreement; provided, however, that no termination of this
Agreement pursuant to this Article VII shall relieve any party of liability for
a breach of any provision of this Agreement occurring before such termination.
ARTICLE VIII
POST-CLOSING AGREEMENTS
Section 8.1 Consistency in Reporting. Each party hereto agrees that if the
characterization of any transaction contemplated in this agreement or any
ancillary or collateral transaction is challenged, each party hereto will
testify, affirm and ratify that the characterization contemplated in such
agreement was the characterization intended by the party; provided, however,
that nothing herein shall be construed as giving rise to any obligation if the
reporting position is determined to be incorrect by final decision of a court of
competent jurisdiction.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Survival of Provisions. The respective representations,
warranties, covenants and agreements of each of the parties to this Agreement
(except covenants and agreements which are expressly required to be performed
and are performed in full on or before the Closing Date) shall survive the
Closing Date and the consummation of the transactions contemplated by this
Agreement, subject to Sections 2.9, 3.8 and 8.2. In the event of a breach of any
of such representations, warranties or covenants, the party to whom such
representations, warranties or covenants have been made shall have all rights
and remedies for such breach available to it under the provisions of this
Agreement or otherwise, whether at law or in equity, regardless of any
disclosure to, or investigation made by or on behalf of such party on or before
the Closing Date.
Section 9.2 Publicity. No party shall cause the publication of any press
release or other announcement with respect to this Agreement or the transactions
contemplated hereby without the consent of the other parties, unless a press
release or announcement is required by law. If any such announcement or other
disclosure is required by law, the disclosing party agrees to give the
non-disclosing parties prior notice and an opportunity to comment on the
proposed disclosure.
Section 9.3 Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors and assigns; provided, however, that no party shall assign or
delegate any of the obligations created under this Agreement without the prior
written consent of the other parties.
Section 9.4 Fees and Expenses. Except as otherwise expressly provided in
this Agreement, all legal and other fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such fees, costs or expenses.
Section 9.5 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally or sent by registered or certified
mail (postage prepaid, return receipt requested) to the parties at the following
addresses:
If to GIC or the SHAREHOLDERS, to:
_________________________
with a copy to:
Guzov Ofsink, LLC
600 Madison Avenue, 14th Floor
New York, New York 10022
Attn: Darren Ofsink, Esq.
Fax: 212-688-7273
If to Dolce, to:
Dolce Ventures, Inc.
or to such other persons or at such other addresses as shall be furnished by any
party by like notice to the others, and such notice or communication shall be
deemed to have been given or made as of the date so delivered or mailed. No
change in any of such addresses shall be effective insofar as notices under this
Section 9.5 are concerned unless such changed address is located in the United
States of America and notice of such change shall have been given to such other
party hereto as provided in this Section 9.5
Section 9.6 Entire Agreement. This Agreement, together with the exhibits
hereto, represents the entire agreement and understanding of the parties with
reference to the transactions set forth herein and no representations or
warranties have been made in connection with this Agreement other than those
expressly set forth herein or in the exhibits, certificates and other documents
delivered in accordance herewith. This Agreement supersedes all prior
negotiations, discussions, correspondence, communications, understandings and
agreements between the parties relating to the subject matter of this Agreement
and all prior drafts of this Agreement, all of which are merged into this
Agreement. No prior drafts of this Agreement and no words or phrases from any
such prior drafts shall be admissible into evidence in any action or suit
involving this Agreement.
Section 9.7 Severability. This Agreement shall be deemed severable, and
the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible so as to be valid and enforceable.
Section 9.8 Titles and Headings. The Article and Section headings
contained in this Agreement are solely for convenience of reference and shall
not affect the meaning or interpretation of this Agreement or of any term or
provision hereof.
Section 9.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
Section 9.10 Convenience of Forum; Consent to Jurisdiction. The parties to
this Agreement, acting for themselves and for their respective successors and
assigns, without regard to domicile, citizenship or residence, hereby expressly
and irrevocably elect as the sole judicial forum for the adjudication of any
matters arising under or in connection with this Agreement, and consent and
subject themselves to the jurisdiction of, the courts of the State of New York
located in County of New York, and/or the United States District Court for the
Southern District of New York, in respect of any matter arising under this
Agreement. Service of process, notices and demands of such courts may be made
upon any party to this Agreement by personal service at any place where it may
be found or giving notice to such party as provided in Section 9.5.
Section 9.11 Enforcement of the Agreement. The parties hereto agree that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereto, this being in addition to any
other remedy to which they are entitled at law or in equity.
Section 9.12 Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of New York
without giving effect to the choice of law provisions thereof.
Section 9.13 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by all
of the parties hereto.. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DOLCE VENTURES, INC.
By:____________________
Title:
GAS INVESTMENT CHINA CO., LTD.
By: ________________________
Title:
SHAREHOLDERS: See Exhibit A
EXHIBIT A
Name Number of GIC Shares Number of Dolce Shares
of SHAREHOLDER Being Exchanged to be Received
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