SHARE EXCHANGE AGREEMENT
AGREEMENT dated as of August 12, 2009 by and between
Apogee Robotics, Inc., a Delaware corporation ("APRB") and Ligang
Shang, Zhengjiang Wang, London Financial Group Ltd., a British
Virgin Islands corporation (“London Financial”), Sino
Group Investment Ltd. (“Sino Group”), a British Virgin
Islands corporation.
WHEREAS , Ligang Shang, Zhengjiang Wang, London
Financial Group, Ltd., and Sino Group Investment Ltd.
(collectively, the “Advanced Swine Shareholders”) are
the owners of all of the outstanding capital stock of Advanced
Swine Genetics Co., Ltd., a Nevada corporation ("Advanced Swine"),
and Primary Capital, LLC owns the only option or other right to
acquire capital stock of Advanced Swine; and
WHEREAS , on the Closing Date described herein, the
Advanced Swine Shareholders and Primary Capital, LLC (collectively,
the Exchanging Shareholders”) will own all of the issued and
outstanding capital stock of Advanced Swine; and
WHEREAS , Advanced Swine owns 100% of the registered
capital of Heilongjiang SenYu Animal Husbandry Co., Ltd.
(“SenYu”), a company organized under the laws of The
People’s Republic of China; and
WHEREAS , SenYu owns 60% of the registered capital of
Sino-Canadian Senyu-Polar Swine Genetics Company Limited
(“Senyu-Polar JV”), a company organized under the laws
of The People’s Republic of China; and
WHEREAS , the Advanced Swine Shareholders desire to
transfer the capital stock of Advanced Swine to APRB and APRB
desires to acquire the shares.
NOW, THEREFORE , it is agreed:
1.
Definitions . As used herein, the following terms
shall have the meanings set forth below:
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“Applicable Law”
means any domestic or foreign law, statute, regulation, rule or
ordinance applicable to the businesses or corporate existence of
APRB, London Financial, Sino Group, Advanced Swine, SenYu, or
Senyu-Polar JV.
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“GAAP” means
generally accepted accounting principles in the United States of
America as promulgated by the American Institute of Certified
Public Accountants and the Financial Accounting Standards Board or
any successor institutes concerning the treatment of any accounting
matter.
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“Lien” means,
with respect to any property or asset, any mortgage, lien, pledge,
charge, security interest, claim, encumbrance, royalty interest,
any other adverse claim of any kind in respect of such property or
asset, or any other restrictions or limitations of any nature
whatsoever.
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“Tax” (and, with
correlative meaning, “Taxes” and “Taxable”)
means:
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any income, alternative or add-on minimum tax,
gross receipts tax, sales tax, use tax, ad valorem tax, transfer
tax, franchise tax, profits tax, license tax, withholding tax,
payroll tax, employment tax, excise tax, severance tax, stamp tax,
occupation tax, property tax, environmental or windfall profit tax,
custom, duty or other tax, impost, levy, governmental fee or other
like assessment or charge of any kind whatsoever together with any
interest or any penalty, addition to tax or additional amount
imposed with respect thereto by any governmental or Tax authority
responsible for the imposition of any such tax (domestic or
foreign), and
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any liability for the payment of any amounts of
the type described in clause (i) above as a result of
being a member of an affiliated, consolidated, combined or unitary
group for any Taxable period, and
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any liability for the payment of any amounts of
the type described in clauses (i) or (ii) above as a result of any
express or implied obligation to indemnify any other
person.
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“Tax Return”
means any return, declaration, form, claim for refund or
information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment
thereof.
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a.
Prior to the Closing Date APRB shall file with the Secretary of
State of the State of Delaware a certificate of designation
of Four Thousand Eight Hundred (4,800) shares of Series
A Preferred Stock, in the form annexed hereto as Appendix
A. Each share of Series A Preferred Stock will be
convertible into One Hundred Thousand (100,000) shares of APRB
common stock.
b. On
the Closing Date (defined herein), the Advanced Swine Shareholders
and Primary Capital, LLC (collectively, the “Exchanging
Shareholders”) shall transfer and assign to APRB all of the
issued and outstanding capital stock of Advanced Swine
. The Advanced Swine Shareholders represent and
warrant that upon delivery to APRB of the stock certificates duly
endorsed for transfer, all right, title and interest in said shares
will be transferred to APRB free of Liens, claims and
encumbrances.
c. On
the Closing Date, APRB shall deliver to the Exchanging Shareholders
or their assignees a total of 4,646.05933 shares of Series A
Preferred Stock as follows:
· 3,763.30805
shares to Ligang Shang;
· 227.65691
shares to Zhengjiang Wang;
· 213.71873
shares to London Financial;
· 441.37564
shares to Sino Group; and
· 144
shares to Primary Capital, LLC.
d. APRB
warrants that the Preferred Shares to be issued to the Exchanging
Shareholders (the “Exchange Shares”), when so issued,
will be duly authorized, fully paid and non-assessable.
e.
The parties intend that the exchange of shares described above
shall qualify as a tax-free exchange under Section 351 of the
United States Internal Revenue Code. The parties further
intend that the issuance of the common stock by APRB to the
Exchanging Shareholder shall be exempt from the provisions of
Section 5 of the Securities Act of 1933 pursuant to Section 4(2) of
said Act.
3.
Closing . The Closing of the transactions
contemplated by this Agreement ("Closing") shall take place at the
offices of Robert Brantl, counsel for APRB, simultaneously with the
execution of this Agreement (the “Closing
Date”).
4.
Warranties and Representations of Advanced Swine
Shareholders In order to induce APRB to enter into this
Agreement and to complete the transaction contemplated hereby, the
Advanced Swine Shareholders warrant and represent to APRB
that:
a.
Organization and Standing – Advanced Swine
. Advanced Swine is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Nevada and has full power and authority to carry on its business
as now conducted. The copies of the Articles of Incorporation and
Bylaws of Advanced Swine previously delivered to APRB are true and
complete as of the date hereof.
b.
Capitalization – Advanced Swine . Advanced
Swine’ entire authorized capital stock consists of 100,000
shares of common stock, $.001 par value, 10,000 of which are issued
and outstanding. There are no other voting or equity
securities authorized or issued, nor any authorized or issued
securities convertible into equity securities, and no outstanding
subscriptions, warrants, calls, options, rights, commitments or
agreements by which Advanced Swine or the Advanced Swine
Shareholders is bound, calling for the issuance of any additional
equity securities of Advanced Swine, except that Primary Capital LLC., a New York company
holds an option to acquire 310 shares of Advanced
Swine. All of the outstanding Advanced Swine common stock
has been duly authorized and validly issued and is fully paid and
non-assessable and was not issued in violation of any preemptive
rights or any Applicable Law.
c.
Ownership of Advanced Swine Shares . The Advanced Swine
Shareholders are the sole owners of the outstanding shares of
Advanced Swine common stock. By the transfer of the
Advanced Swine common stock to APRB pursuant to this Agreement,
APRB will acquire good and marketable title to 100% of the capital
stock of Advanced Swine, free and clear of all Liens, encumbrances
and restrictions of any nature whatsoever, except by reason of the
fact that the Advanced Swine common stock will not have been
registered under the Securities Act of 1933, or any applicable
state securities laws.
d.
Business Operations and Liabilities – Advanced Swine .
Since its organization, Advanced Swine has conducted no business
operations, except holding all of the issued and outstanding
capital stock of SenYu and, through Senyu, 60% of Senyu-Polar
JV.
e.
Organization and Standing – SenYu . SenYu
is a corporation duly organized, validly existing and in good
standing under the laws of the People’s Republic of China,
except as set forth in the Section 4(e) of the Disclosure Schedule
(the “ Disclosure Schedule ”). SenYu has all of
the government licenses and permits necessary to carry on its
business as now conducted, and to own and operate its assets,
properties and business.
f.
Organization and Standing – Senyu-Polar JV
. Senyu-Polar JV is a company duly organized, validly
existing and in good standing under the laws of the People’s
Republic of China. Senyu-Polar JV has all of the government
licenses and permits necessary to carry on its business as now
conducted, and to own and operate its assets, properties and
business, except as set forth in the Section 4(f) of the Disclosure
Schedule.
g.
Financial Statements . The Advanced Swine
Shareholders delivered to APRB the consolidated financial
statements of Advanced Swine for the years ended March 31, 2009 and
2008 (the “Advanced Swine Financial
Statements”). The Advanced Swine Financial
Statements have been prepared in accordance with U.S. GAAP and
present fairly in all material respects the financial condition of
Advanced Swine as of the dates thereof. The Advanced Swine
Financial Statements have been reported on by an independent
accountant registered with the PCAOB.
h.
Absence Of Certain Changes Or Events . Since
March 31, 2009, there has not been (A) any material adverse change
in the business, operations, properties, assets, or condition of
Se
