wncfdef14a.htm
SCHEDULE
14A
(Rule
14a-101)
INFORMATION
REQUIRED IN PROXY STATEMENT
SCHEDULE
14A INFORMATION
Proxy
Statement Pursuant to Section 14(a) of the Securities
Exchange
Act of 1934
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Filed by the Registrant
[
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Filed by a Party Other than the Registrant
Check
the
appropriate box:
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Preliminary Proxy
Materials
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Confidential, For Commission Use Only
[X
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Definitive Proxy
Statement
(as permitted by Rule 14a-6(e)(2)
[
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Definitive Additional Materials
[
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Soliciting Material Pursuant to §240.14a-12
WINCROFT,
INC.
(Name
of
Registrant as Specified in its Charter)
_________________________________
(Name
of
Person Filing Proxy Statement, if Other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
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x
]
No fee required.
[
]
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
(1)
Title of each class of securities to which transaction applies:
________________________________________________________________________
(2)
Aggregate number of securities to which transaction applies:
________________________________________________________________________
(3)
Per unit price or other underlying value of transaction computed
pursuant
to Exchange Act Rule 0-11 (set forth the amount on which the filing
fee
is
calculated and state how it was determined):
________________________________________________________________________
(4)
Proposed maximum aggregate value of transaction:
________________________________________________________________________
(5)
Total fee paid:
________________________________________________________________________
Fee previously paid with preliminary materials:
________________________________________________________________________
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[ ]
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule
0-11(a)(2) and identify the filing for which the offsetting fee was
paid
previously. Identify the previous filing by registration statement
number,
or the form or schedule and the date of its filing.
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(1)
Amount previously paid:
________________________________________________________________________
(2)
Form, Schedule or Registration Statement No.:
________________________________________________________________________
(3)
Filing Party:
________________________________________________________________________
(4)
Date Filed:
________________________________________________________________________
PROXY
WINCROFT,
INC.
SOLICITED
BY THE BOARD OF DIRECTORS
For
use
at the February 1, 2008 Special Meeting
The
undersigned hereby appoints Peter Zhou as Proxy with power of substitution,
who
shall be present at the meeting to vote all of the shares of the undersigned
as
follows:
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(1)
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PROPOSAL
TO MERGE WINCROFT, INC. INTO ITS WHOLLY OWNED SUBSIDIARY, A NEVADA
CORPORATION, FOR THE PURPOSES OF (1) CHANGING WINCROFT’S STATE OF
INCORPORATION FROM COLORADO TO NEVADA, (2) EFFECTING A REDUCTION
IN THE
NUMBER OF SHARES OF COMMON STOCK OUTSTANDING BY CAUSING THE EXCHANGE
OF
COMMON SHARES IN THE MERGER IN A RATIO OF 1-FOR-8. AND (3) INCREASING
THE
AUTHORIZED COMMON SHARES TO 100 MILLION.
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/ / FOR
/ /
AGAINST
/ / ABSTAIN
and
in
his discretion upon such other business as may be properly brought before the
Special Meeting of Shareholders of Wincroft, Inc., to be held at the offices
of
American Union Securities, Inc., 100 Wall St.,15th Floor, New York,
NY 10005 on February 1, 2008 at 11:00 a.m. local time, and any adjournments
thereof. This proxy revokes all prior proxies given by the
undersigned.
UNLESS
OTHERWISE SPECIFIED, THIS PROXY WILL BE VOTED "FOR" THE PROPOSAL.
Date:
___________________
Signature:
___________________
Print
Name:
___________________
Signature:
___________________
(if
jointly held)
IMPORTANT: Please
sign exactly as name appears on your stock certificate. Joint owners should
both
sign. When signing as executor, trustee, guardian, attorney or
officer of a corporation, give title as such. If a partnership,
please sign in partnership name.
PLEASE
COMPLETE, SIGN, DATE AND MAIL THIS PROXY IN THE ENCLOSED ENVELOPE.
WINCROFT,
INC.
NOTICE
OF SPECIAL MEETING OF SHAREHOLDERS
TO
BE HELD ON FEBRUARY 1, 2008
A
Special
Meeting of Shareholders of Wincroft, Inc., to be held at the offices of American
Union Securities, Inc., 100 Wall St.,15th Floor, New York, NY 10005
on February 1, 2008 at 11:00 a.m., local time, for the following
purposes:
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(1)
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To
vote upon a proposal to merge Wincroft, Inc. into its wholly-owned
subsidiary, a Nevada corporation, for the purposes of (1) changing
Wincroft’s state of incorporation from Colorado to Nevada, (2)
effecting a reduction in the number of shares of common stock outstanding
by causing the exchange of common shares in the merger in a ratio
of
1-for-8, and (3) increasing the authorized common shares to 100 million;
and
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(2) To
transact such other business as may properly come before the
meeting.
Stockholders
of record as of the close of business on January 4, 2008 will be entitled to
vote at the meeting.
Enclosed
is a proxy statement and form of proxy. Shareholders who do not
expect to attend the Special Meeting are requested to sign and return the proxy
in the enclosed envelope.
By Order of the Board of Directors
Xiaojin Wang
Chairman
of the Board
January
18, 2008
WINCROFT,
INC.
PROXY
STATEMENT
This
Proxy Statement is furnished to shareholders of Wincroft, Inc. in connection
with the solicitation by the Board of Directors of proxies to be used at a
Special Meeting of the Shareholders of Wincroft. This Notice of Special Meeting
and Proxy Statement, and the accompanying proxy card have been mailed to the
shareholders on or after January 18, 2008 for the purpose set forth in the
Notice of the Special Meeting.
If
the
enclosed form of proxy is executed and returned, it may nevertheless be revoked
at any time up until the time when it is voted by the Proxy
Committee. The proxy may be revoked by sending written revocation to
the Proxy Committee (c/o Robert Brantl, Esq., counsel to Wincroft, 52 Mulligan
Lane, Irvington, NY 10533) or by making a proxy bearing a later date or by
appearing and voting at the Special Meeting. The proxy is in ballot form and
each shareholder may indicate approval or disapproval as to the proposal
identified in the proxy and accompanying Notice of Special Meeting and as set
forth and discussed in this Proxy Statement. The proposals will be
presented by the Board of Directors of Wincroft. Where a choice is
specified with respect to a proposal, the shares represented by the proxy will
be voted in accordance with the specification made. Where a choice is
not so specified, the shares represented by the proxy will be voted in favor
of
the proposal. The Proxy Committee appointed by the Board of Directors
consists of Peter Zhou, President of American Union Securities,
Inc.
VOTING
SECURITIES OUTSTANDING
Stockholders
of record entitled to vote will be determined as of the close of business on
January 4, 2008. At that date, there were outstanding and entitled to
vote 4, 440,100 shares of
common stock of Wincroft, constituting the only class of stock outstanding
and
entitled to vote at the meeting. Each share of common stock entitles
the holder thereof to one vote.
The
following table sets forth the beneficial ownership of outstanding shares of
voting stock of Wincroft as of January 4, 2008 by any person who, to the
knowledge of Wincroft, owns beneficially more than 5% of the outstanding common
stock, by each Wincroft director, and by the directors of Wincroft as a
group. None of the individuals identified below owns any equity
securities of Wincroft other than the voting stock listed below. All
shares are owned of record and beneficially, except where otherwise
noted.
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Beneficial
Owner
|
Amount
and Nature of Beneficial
Ownership
|
Percent
of Class
|
|
Ying
Wang
c/o
American Union Securities
100
Wall St. 15th Floor
New
York, NY 10005
|
3,576,400
|
80.55%
|
|
Xiaojin
Wang
All
officers and directors as
a
group (1 person)
|
0
0
|
0.00%
0.00%
|
|
TOTAL
|
3,576,400
|
80.55%
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PROPOSAL
TO
CHANGE
THE STATE OF
INCORPORATION
OF
THE CORPORATION
FROM COLORADO TO NEVADA, EFFECT A REDUCTION IN THE NUMBER OF SHARES OF COMMON
STOCK OUTSTANDING. AND INCREASE THE AUTHORIZED COMMON STOCK
Introduction
For
the
reasons set forth below, the Board believes that the best interests of the
Corporation and its shareholders will be served by changing the Corporation's
state of incorporation from Colorado to Nevada (the "Reincorporation"). The
Board has approved the Reincorporation, which will be effected pursuant to
the
Merger Agreement described below. Under the Merger Agreement, the Corporation
(which will be referred to hereinafter as the “Colorado Corporation”) will be
merged with and into a newly formed Nevada Corporation (the “Nevada
Corporation"). The Nevada Corporation is a wholly-owned subsidiary of
the Colorado Corporation recently incorporated in Nevada solely for the purpose
of effecting the Reincorporation. The Nevada Corporation currently
has no material assets and no business operations. Upon the effectiveness of
the
Reincorporation, the Colorado Corporation will cease to exist and Nevada
Corporation will continue to operate the Colorado Corporation's business under
the name "Wincroft, Inc."
At
the
Special Meeting, the shareholders of the Colorado Corporation will be asked
to
consider and vote upon the Reincorporation as outlined in the Agreement and
Plan
of Merger by and between the Colorado Corporation and Nevada Corporation
attached as Appendix A (the "Merger Agreement"). For the reasons set forth
below, the Board believes that approval of the Reincorporation is in the best
interests of the Colorado Corporation and its shareholders. Shareholder approval
of the Reincorporation will constitute approval of the Merger Agreement and
all
related transactions, which effectuate the change of the legal domicile of
the
Colorado Corporation, the reduction of its outstanding common shares, and an
increase in its authorized common shares.
Due
to
the nature of this proposed transaction, Shareholders may be entitled to dissent
under Colorado Business Corporations Act Section 7-113-201 et seq. to the
proposed Merger and Reincorporation. A summary of dissenting shareholders rights
and procedure may be found, beginning on page 13 below. Additionally, those
relevant sections of the Colorado Business Corporation Act (the “Colorado Act”)
are set forth in their entirety in the appendix attached hereto as Appendix
C.
Reasons
for the Reincorporation
The
Board
believes that the Reincorporation will provide flexibility for both the
management and business of the Corporation. In recent years, Nevada has adopted
a policy of encouraging incorporation in that state and has been a leader in
adopting, construing and implementing comprehensive, flexible corporate laws
responsive to the legal and business needs of corporations organized under
its
laws. Such an environment will enhance the Colorado Corporation's operations
and
its ability to obtain equity financing, to attract highly qualified directors,
and to effect acquisitions and other transactions.
The
Nevada courts have developed considerable expertise in dealing with corporate
issues, and a substantial body of case law has developed in the construction
of
Nevada law, resulting in greater predictability with respect to corporate legal
affairs. The Nevada courts can rely on numerous precedents in interpreting
the
legal principles applicable to measures that may be taken by a corporation
and
as to the conduct of the board of directors under the business judgment rule.
Consequently, many corporations originally domiciled elsewhere have subsequently
changed corporate domicile to Nevada in a manner similar to that proposed by
the
Colorado Corporation.
Principal
Reasons for the Reduction in Outstanding Common Stock and the Increase in
Authorized Common Stock
The
primary reasons for the Board of Directors’ decision to reduce the number of
outstanding common shares and to increase to 100 million the authorized common
shares in connection with the Merger (the “Recapitalization) is to make the
Corporation more attractive to a candidate for a reverse merger
acquisition. The Corporation is currently a shell, without any assets
or business operations. The Corporation’s business plan is to acquire
an operating company through the process known as “reverse
merger.” In a reverse merger, it is likely that the shareholders of
the operating company will receive shares in the Corporation equal to between
95% and 99% of the Corporation’s equity. If there were over 4 million
common shares outstanding prior to the reverse merger, as there are now,
achieving that 95+-to-5 ratio would require that the Corporation issue all
of
the remaining 75 million authorized common shares plus preferred shares
equivalent to at least another 20 million common shares. This would
result in a very large number of outstanding shares, with the result that the
market price for the common stock after the reverse merger would be relatively
low. The Corporation would also be left without any authorized but
unissued shares with which to obtain financing and recruit management personnel,
all of which will be necessary if Wincroft is to undertake new business
operations.
The
Board of Directors
does not have any specific plan, commitment, arrangement, understanding or
agreement with respect to the additional common shares that will be available
for issuance as a result of the Recapitalization. The Corporation is
not currently party to any reverse merger agreement or arrangement, and the
Board does not know when such an arrangement will be consummated.
The
Recapitalization will increase the number of common shares available for
issuance by the Board of Directors to 99,444,987. The Board of
Directors will be authorized to issue the additional common shares without
having to obtain the approval of the Wincroft shareholders. Nevada
law requires that the Board use its reasonable business judgment to assure
that
Wincroft obtains "fair value" when it issues shares. Nevertheless,
the issuance of the additional shares would dilute the proportionate interest
of
current shareholders in Wincroft. The issuance of the additional
shares could also result in the dilution of the value of shares now outstanding,
if the terms on which the shares were issued were less favorable than the
contemporaneous market value of Wincroft common stock.
The
Merger, with the resulting increase in the number of shares available for
issuance, is not being done for the purpose of impeding any takeover
attempt. Nevertheless, the power of the Board of Directors to provide
for the issuance of shares of common stock without shareholder approval has
potential utility as a device to discourage or impede a takeover of
Wincroft. In the event that a non-negotiated takeover were attempted,
the private placement of stock into "friendly" hands, for example, could make
Wincroft unattractive to the party seeking control of the company.
The
Merger
After
the
Reincorporation is effected by the Merger, the Nevada Corporation will emerge
as
the surviving corporation. The terms and conditions of the Reincorporation
are
set forth in the Merger Agreement attached to this Proxy Statement, and the
summary of the terms and conditions of the Reincorporation set forth below
is
qualified by reference to the full text of the Merger Agreement. Upon
consummation of the Reincorporation, the Nevada Corporation will continue to
exist in its present form under the name "Wincroft, Inc.," and the Colorado
Corporation will cease to exist. The Reincorporation will change the legal
domicile of the Colorado Corporation, but will not result in a change in the
principal offices, business, management, capitalization, assets or liabilities
of the Colorado Corporation. By operation of law, the Nevada Corporation will
succeed to all of the assets and assume all of the liabilities of the Colorado
Corporation. The officers and directors of the Colorado Corporation
are the officers and directors of the Nevada Corporation, and will be the
officers and directors of the surviving corporation.
After
the
Reincorporation, the rights of shareholders and the Corporation's corporate
affairs will be governed by the Nevada Revised Statutes ("NRS") and by the
articles of incorporation and bylaws of the Nevada Corporation, instead of
the
Colorado Act and the articles of incorporation and bylaws of the Colorado
Corporation. Certain material differences are discussed below under "Comparison
of Shareholders Rights under Nevada and Colorado Corporate Law and Charter
Documents." A copy of the Articles of Incorporation of the Nevada Corporation
(the "Nevada Articles") is included as Appendix B to this Proxy Statement.
A
copy of the articles of incorporation (“Colorado Articles”) and bylaws of the
Colorado Corporation (“Colorado Bylaws”) and the bylaws of the Nevada
Corporation (the "Nevada Bylaws") are available for inspection by shareholders
of the Colorado Corporation at the offices of American Union
Securities, Inc., 100 Wall St.,15th Floor, New York, NY
10005.
As
explained above, a reverse split of the common stock will be effected in
connection with the Merger. Accordingly, under the terms of the
Merger Agreement, each eight (8) outstanding shares of common stock of the
Colorado Corporation will be automatically converted into one (1) share of
common stock of the Nevada Corporation at the effective time of the
Merger. The Merger Agreement further provides that no fractional
shares or scrip will be issued; rather, any shareholder who would otherwise
be
entitled to a fractional share as a result of the Reverse Split will be issued
one whole share of common stock of the Nevada Corporation in lieu of the
fraction. Accordingly, each stock certificate representing issued and
outstanding shares of common stock of the Colorado Corporation will, upon the
effectiveness of the Merger, represent that number of shares
of common stock of the Nevada Corporation into which the Colorado
Corporation common stock was converted, i.e., the number of shares of common
stock of the Colorado Corporation held by the stockholder prior to
the Merger divided by eight, increased by any rounding up necessary to avoid
the
creation of a fractional share. The rights of the holders of common
stock relative to one another will not change as a result of the
Merger.
IT
IS NOT
NECESSARY TO SEND IN ANY OF YOUR STOCK CERTIFICATES REPRESENTING SHARES OF
THE
COLORADO CORPORATION’S COMMON STOCK, AS IT WILL NOT BE NECESSARY FOR
STOCKHOLDERS TO EXCHANGE THEIR EXISTING STOCK CERTIFICATES FOR NEVADA
CORPORATION STOCK CERTIFICATES. If, however, a shareholder wishes to
acquire a certificate representing shares of the Nevada Corporation after the
effective date of the Reincorporation, he may do so by surrendering his
certificate to Wincroft’s Transfer Agent with a request for a replacement
certificate and the appropriate stock transfer fee. Wincroft’s
Transfer Agent is:
Empire
Stock Transfer Inc.
2470
St.
Rose Parkway, Suite 304
Henderson,
NV 89074
702-818-5898
Consummation
of the Reincorporation is subject to the approval of the Colorado Corporation's
shareholders. The Reincorporation will be approved if there is a quorum at
the
Special Meeting and the shareholder votes cast at the meeting in favor of the
proposal exceed the votes cast opposing it. A quorum exists if the
holders of a majority of the shares of common stock outstanding are present
at
the meeting in person or by proxy. Ying Wang owns 80.55% of the
outstanding shares of common stock. His shares will be voted in favor
of the proposal and his vote will be sufficient to approve the proposal on
behalf of the shareholders.
Federal
Income Tax Consequences of the Reincorporation
The
Reincorporation of the Colorado Corporation pursuant to the Merger Agreement
will be a tax-free reorganization under the Internal Revenue Code of 1986,
as
amended. Accordingly, a holder of the common stock (a “Holder”) will not
recognize gain or loss in respect of Holder's common stock as a result of the
Reincorporation. The Holder’s basis in a share of the Nevada Corporation will be
the same as Holder's basis in the corresponding eight shares of the Colorado
Corporation (adjusted in the event fractional shares are rounded up) held
immediately prior to the Reincorporation. The Holder's holding period in a
share
of the Nevada Corporation will include the period during which Holder held
the
corresponding share of the Colorado Corporation, provided the Holder held the
corresponding share as a capital asset at the time of the Reincorporation.
In
addition, neither the Colorado Corporation nor the Nevada Corporation will
recognize gain or loss as a result of the Reincorporation, and the Nevada
Corporation will generally succeed, without adjustment, to the tax attributes
of
the Colorado Corporation.
The
Colorado Corporation has not requested a ruling from the Internal Revenue
Service (the "IRS") or an opinion of counsel with respect to the federal income
tax consequences of the Reincorporation under the Internal Revenue Code. A
successful IRS challenge to the reorganization status of the Reincorporation
would result in a stockholder recognizing gain or loss with respect to each
share of the Colorado Corporation’s common stock exchanged in the
Reincorporation equal to the difference between the stockholder’s basis in such
shares and the fair market value, as of the time of the Reincorporation, of
the
shares of the Nevada Corporation common stock received in exchange therefor.
In
such event, a stockholder’s aggregate basis in the shares of the Nevada
Corporation common stock received in the exchange would equal their fair market
value on such date, and the stockholder’s holding period for such shares would
not include the period during which the stockholder held shares of the Colorado
Corporation’s Common Stock.
State,
local, or foreign income tax consequences to stockholders may vary from the
federal tax consequences described above. Stockholders should consult their
own
tax advisors as to the effect of the Reincorporation under applicable federal,
state, local, or foreign income tax laws.
Securities
Act Consequences
Pursuant
to Rule 145(a)(2) under the Securities Act of 1933, as amended (the "Securities
Act"), a merger which has the sole purpose of changing an issuer's domicile
within the United States does not involve a sale of securities for the purposes
of the Securities Act. Accordingly, separate registration of shares of common
stock of Nevada Corporation will not be required.
Description
and Comparison of Capital Stock and Voting Rights
The
Colorado Corporation's authorized Capital Stock consists of seventy five million
(75,000,000) shares of Common Stock, without par value, and twenty five million
(25,000,000) shares of preferred stock, without par value. On January
4, 2008, there were outstanding and entitled to vote 4,440,100 shares of common
stock of the Colorado Corporation, constituting the only class of stock
outstanding and entitled to vote at the meeting. Each share of common
stock entitles the holder thereof to one vote.
The
Nevada Articles provide that the authorized capital stock of the Nevada
Corporation consists of one hundred million (100,000,000) shares of
Common Stock, each share having a par value of $0.001, and 25,000,000 share
of
preferred stock, each share having a par value of $0.001. “Par value”
refers to the nominal dollar amount assigned to a share of stock by a company,
and it bears no relationship to the value of the stock. The fact that
the stock of the Colorado Corporation has no par value and the stock of the
Nevada Corporation has par value is not a significant difference with respect
to
the rights of the shareholders.
Comparison
of Shareholder Rights Under Nevada and Colorado Corporate Law And
Charter
Documents
Subject
to shareholder approval prior to the effective time (the "Effective Time")
of
the Reincorporation, the Colorado Corporation will change its domicile to Nevada
and shall thereafter be governed by the NRS and by the Nevada Articles and
the
Nevada Bylaws ("Nevada Charter Documents"). Upon the filing with and acceptance
by the Secretary of State of Nevada of the Articles of Merger in Nevada, the
Colorado Corporation will be merged into the Nevada corporation, and the
outstanding shares of the Colorado Corporation's Common Stock will be deemed
for
all purposes to evidence ownership of, and to represent, shares of the Nevada
Corporation’s Common Stock.
The
Nevada Charter Documents effectively replace the Colorado Articles and the
Colorado Bylaws (together, the "Colorado Charter Documents") including providing
officers, directors and agents of the Nevada Corporation with certain
indemnification rights in addition to those currently provided for the under
the
Colorado Charter Documents.
If
the
Reincorporation is consummated, holders of the Colorado Corporation's Common
Stock will become holders of the Nevada Corporation’s Common Stock, which will
result in their rights as shareholders being governed by the laws of the State
of Nevada. In addition, their rights as shareholders will be governed by the
Nevada Charter Documents.
It
is not
practical to describe all of the differences between the Nevada Articles and
the
Colorado Articles and the Nevada Bylaws and the Colorado Bylaws or all of the
differences between the laws of the States of Nevada and Colorado. The following
is a summary of some of the significant rights of the shareholders under
Colorado and Nevada law and under the Colorado and Nevada Charter Documents.
This summary is qualified in its entirety by reference to the full text of
such
documents and laws.
Voting
Rights With Respect To Extraordinary Corporate Transactions
Nevada. Approval
of mergers and consolidations and sales, leases or exchanges of all or
substantially all of the property or assets of a corporation, requires the
affirmative vote or consent of the holders of a majority of the outstanding
shares entitled to vote, except that no vote of shareholders of the corporation
surviving a merger is necessary if: (i) the merger does not amend or alter,
in
any way the articles of incorporation of the corporation; (ii) each outstanding
share immediately prior to the merger is to be an identical share after the
merger; (iii) no common stock of the corporation and no securities or
obligations convertible into common stock are to be issued in the merger, or
the
common stock to be issued in the merger along with the conversion of other
securities issued in the merger does not exceed 20% of the common stock of
the
corporation outstanding immediately before the merger; and, (iv) the number
of
participating shares outstanding immediately before the merger, plus the number
of participating shares issuable as a result of the merger, either by conversion
of securities issued pursuant to the merger or the exercise of rights and
warrants issued pursuant to the merger, will not exceed by more than 20% the
total number of participating shares outstanding immediately before the
merger.
Colorado. Approval
of mergers and consolidations and sales, leases or exchanges of all or
substantially all of the property or assets of a corporation requires the
approval of a majority of shareholders (unless the articles of incorporation,
the bylaws or a resolution of the board of directors requires a greater number)
holding issued shares of the corporation. No vote of the shareholders of the
surviving corporation in a merger is required if: (i) the articles of
incorporation of the surviving corporation will not be changed; (ii) each
shareholder of the surviving corporation whose shares were outstanding
immediately before the effective date of the merger will hold the same number
of
shares, with identical designations, preferences, limitations and relative
rights, immediately after the merger; (iii) none of the entities is a nonprofit
corporation; and (iv) the shareholders of the surviving corporation immediately
prior to the merger own at least 80% of the of the value of all interests of
the
surviving entity immediately after the merger and are entitled to cast votes
or
right to consent equal to 80% of all shareholder votes immediately after the
merger.
Shareholders’
Consent without a Meeting
Nevada. Unless
otherwise provided in the articles of incorporation, action requiring the vote
of shareholders may be taken without a meeting, without prior notice and without
a vote, by the written consent of shareholders having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which all shares entitled to vote thereon were present and acted.
Colorado. Any
action requiring the vote of the shareholders may be taken without a meeting
if
all the shareholders entitled to vote consent to take the action in writing
or
if the articles of incorporation expressly provide that shareholders having
not
less than the minimum number of votes that would be necessary to take such
action at a meeting consent to such action in writing. However, no action taken
shall become effective until the corporation receives writings that describe
and
consent to the action being taken. Any such action taken shall have the same
effect as any action taken at a meeting of shareholders. The Colorado
Articles do not provide for a lesser vote in the case of shareholder action
by
written consent. Therefore, under the Colorado Charter Documents,
unanimous shareholder consent is required in order to approve actions by written
consent.
Dividends
Nevada. Distributions
under the NRS include (1) the direct or indirect transfer of corporate property
or cash to shareholders, or (2) the incurrence of indebtedness by the
corporation to or for the benefit of its shareholders. A distribution may be
made in the form of a declaration or payment of a dividend, or a purchase,
redemption or other acquisition of shares. However, no distribution shall be
made if following said distribution: (i) the corporation would be unable to
pay
its debts, or (ii) the distribution would leave the corporation with assets
less
than the sum of total liabilities.
Colorado.
A
corporation is
prohibited from making a distribution to its shareholders if, after giving
effect to the distribution, the corporation would not be able to pay its debts
as they become due in the usual course of business or the corporation's total
assets would be less than its total liabilities (plus any amounts necessary
to
satisfy any preferential rights).
Anti-Takeover
Statutes
Nevada. Except
under certain circumstances, Nevada law prohibits a "combination" between a
corporation and an "interested shareholder" within three years of the
shareholder becoming an "interested shareholder." An "interested shareholder,"
as defined under the NRS, is a person that, directly or indirectly, controls
10%
or more of the outstanding voting stock, or is an affiliate or associate of
the
corporation and was the owner of 10% or more of such voting stock at any time
within the previous three years. A "combination" includes a merger,
consolidation, sale or other disposition of assets having an aggregate value
in
excess of 5% of the aggregate market value of the consolidated assets of the
corporation or its outstanding stock, disposition of assets having an aggregate
market value equal to 5% or more of the market value of all the outstanding
shares of the corporation, or said assets represent 10% or more of the earning
power or net income of the corporation. Additionally, certain other business
combinations that would increase the interested shareholder’s proportionate
share under the NRS are prohibited.
The
following are considered to be authorized combinations: Generally,
corporations may not engage in any combination with an interested shareholder
of
the resident domestic corporation after the expiration of 3 years after his
date
of acquiring shares, unless (1) a the combination is approved by the board
of
directors of the corporation before the interested shareholder's date of
acquiring shares, the purchase of shares made by the interested stockholder
on
that date having been approved by the board of directors before that date,
or
(2) a combination approved by vote of the holders of stock representing a
majority of the outstanding shares not beneficially owned by the interested
shareholder proposing the combination, or any affiliate or associate of the
interested shareholder proposing the combination, at a meeting called for that
purpose no earlier than three years after the interested shareholder's date
of
acquiring shares.
Colorado. The
Colorado Act does not provide guidance regarding anti-takeover
provisions.
Quorum
of Directors
Nevada. Unless
a
greater or lesser number is required for a quorum by the articles of
incorporation or bylaws, a majority of the directors then in office, at a
meeting duly assembled, shall constitute a quorum.
Colorado. A
quorum
of the board of directors consists of a majority of the fixed number of
directors if the corporation has a fixed board size, or if the corporation's
bylaws provide for a variable board size, a majority of the number of directors
prescribed, or if no number is prescribed, the number in office. The
corporation’s bylaws may provide that a quorum consists of a majority of the
number of directors fixed, or no fewer than a majority of the number of
directors fixed, or if no fixed number then no fewer than a majority of the
number of directors in office immediately prior to the beginning of the
meeting.
Derivative
Suits
Nevada.
A person may not
commence a derivative action unless the person was a shareholder of the
corporation at the time when the transactions complained of occurred (unless
the
person became a shareholder through transfer by operation of law from a person
who was a shareholder at the time). The complaint must be verified and allege
with particularity the efforts of the plaintiff(s) to secure the desired action
from the board of directors or from the shareholders if necessary and the
reasons for plaintiff(s)’ failure to secure such action or the reasons for not
making the effort to secure such action. The action may not be maintained if
the
plaintiff(s) do not fairly and adequately represent the interests of the
shareholders similarly situated.
Colorado. A
person
may not commence a derivative action unless the person was a shareholder of
the
corporation at the time when the transactions complained of occurred (unless
the
person became a shareholder through transfer by operation of law from a person
who was a shareholder at the time). The complaint must be verified and allege
with particularity (i) the demand made on the board of directors and that either
the demand was refused or ignored by the board of directors, or (ii) if no
demand was made on the board of directors, why the person did not make the
demand. The action may not be maintained if the plaintiff(s) do not fairly
and
adequately represent the interests of the shareholders similarly
situated.
Special
Meetings of Shareholders
Nevada. Unless
otherwise provided in the articles of incorporation or bylaws, only the
president or any two or more directors, acting in concert, may call for a
special meeting. Unless otherwise specified by the articles of incorporation
or
bylaws, the special meeting need not be held in the state of incorporation,
and
notice of any meeting must be sent to shareholders indicating the purpose(s)
for
the meeting and the location of the meeting, and the notice must be signed
by a
officer or other person so authorized to sign on behalf of the corporation
within the articles of incorporation or bylaws. The Nevada Bylaws permit a
special meeting to be called at any time by a majority of the board of
directors, the executive committee, the chairman of the board, the chief
executive officer, or the president, or by vote of, or instrument in writing
signed by at least ten percent (10%) of the shareholders of the issued and
outstanding capital stock of Nevada Corporation. Notice of said meeting must
be
given no fewer than 10 days and no more than 60 days prior to the date scheduled
for the meeting.
Colorado. A
special meeting of shareholders shall be held by the corporation if called
by
the board of directors, the person or persons authorized by the bylaws to call
a
special meeting, or written demands from the holders of shares representing
at
least 10% of all votes entitled to be cast on any issue proposed to be
considered at the special meeting. The corporation shall give notice of the
date, time and place of the meeting no fewer than 10 and no more than 60 days
before the meeting. Notice of a special meeting must include a description
of
the purposes for which the special meeting is called, and unless otherwise
specified by the articles of incorporation or bylaws, the special meeting need
not be held within the state of incorporation; however if there be no place
specified in the articles of incorporation or bylaws, the meeting shall be
held
at the corporation's principal place of business.
Amendments
to Charter
Nevada. Amendments
to the articles of incorporation require that the board of directors adopt
a
resolution setting forth the proposed amendment and the purpose(s) thereof,
declare the amendment’s advisability, and call for a general or special
meeting. All shareholders are entitled to vote for the consideration
of the proposed amendment. At the meeting held for said purpose and
upon a canvassing of the shareholders, if it appears that the majority will
affirm the amendment, the corporation's secretary shall file with the secretary
of state a certificate setting forth the amendment. However, if the
amendment proposes to change any preference or any relative or other right
given
to any class of security, then the amendment must be approved by the vote of
the
majority of the shareholders of each class of shares affected by the amendment
regardless of the limitations or restrictions on the voting power of said
classes of stock.
Colorado. Unless
otherwise provided in the articles of incorporation, the board of directors
may,
under very limited circumstances, amend the articles without shareholder
approval. Otherwise the board of directors or the holders of shares
representing at least 10% of the all votes entitled to be cast may propose
an
amendment to the articles of incorporation. The board of directors shall either
recommend to the shareholders the adoption of the board proposed amendment
or
recommend against or in favor of any proposed shareholder
amendment. The amendment shall be duly voted upon and will be adopted
if approved by an affirmative vote by a majority of shareholders.
Notice,
Adjournment and Place of Stockholders' Meetings
Nevada. The
NRS
and the Nevada Charter Documents require that notice of shareholders' meetings
be given between 10 and 60 days before a meeting unless the shareholders waive
or reduce the notice period by unanimous consent in writing. If the meeting
is
to be postponed for a period of more than 60 days, the corporation shall be
required to fix a new record date and new notice must be sent to all
shareholders of record as of that date.
Colorado. The
Colorado Act and the Colorado Charter Documents require that notice of
shareholders' meetings be given between 10 and 60 days before a meeting unless
the shareholders waive or reduce the notice period by unanimous consent in
writing. If the meeting is moved to more than 120 days from the originally
scheduled date the corporation shall be required to fix a new record date and
new notice must be sent to all shareholders of record as of that
date.
Directors
Nevada. The
Nevada
Bylaws provide the number of members of the Nevada Board shall not be reduced
to
less than one (1) nor exceed ten (10), and may, at any time or times, be
increased or decreased by a duly adopted amendment to the Nevada Bylaws. A
majority of the number of directors then in office constitutes a quorum for
the
transaction of business. In the absence of a quorum, a majority of the directors
present may adjourn any meeting from time to time until a quorum is
present.
Colorado.
The Colorado Bylaws
provide that the Board consists of not less than one (1) nor more than nine
(9)
persons or such number as shall be fixed from time to time by the Board of
Directors. Currently, the Colorado Corporation has one director. A majority
of
the number of directors constitutes a quorum for the transaction of business.
The Colorado Bylaws provide that a vacancy among the directors may be filled
for
the unexpired term by the affirmative vote of a majority of the remaining
directors in office, though less than a quorum.
Election
and Removal of Directors
Nevada.
The Nevada Bylaws
provide that the election of directors shall take place at an annual or special
meeting of stockholders. Directors shall hold office for the terms specified
in
the bylaws and until their successors have been elected as provided in said
bylaws. Vacancies on the board shall be filled only by a majority of the
directors then in office, although less than a quorum.
Colorado. The
Colorado Bylaws provide that each director shall hold office until the next
annual meeting of shareholders and until his or her successor shall have been
elected and qualified. Under the Colorado Act, the
shareholders may remove one or more directors with or without cause unless
the
articles of incorporation provide that directors may be removed only for cause,
and only if the number of votes cast in favor of removal exceeds the number
of
votes cast against removal at a meeting called for the purpose of removing
the
director. Vacancies on the board occurring by reason of the resignation or
removal of director with or without cause shall be filled only by a majority
of
the directors then in office, although less than a quorum.
Transactions
with Officers and Directors
Nevada. Under the
NRS, contracts or transactions in which a director or officer is financially
interested are not automatically void or voidable if: (i) the financial interest
is known to the board of directors or committee, and the board or committee
approves, authorizes or ratifies the contract in good faith by a majority vote
of the remaining directors without counting the interested director(s) vote;
(ii) the material facts are disclosed to the shareholders, and they approve
or
ratify the transaction in good faith by a majority vote of all shareholders
eligible to vote, including the interested directors’ or officers’ votes; or
(iii) the contract is fair to the corporation at the time it is entered into.
Board or committee approval must be by a majority of the disinterested
directors, but interested directors may be counted for purposes of establishing
the presence or absence of a quorum.
Colorado. Under
the Colorado Act, contracts or transactions in which a director or officer
is
financially interested are not automatically void or voidable if: (i) the
material facts are known to the board of directors or committee, and the board
or committee approves, authorizes or ratifies the contract in good faith by
a
sufficient vote without counting the interested director(s)’ vote; (ii) the
financial interest is known to the shareholders, and they approve or ratify
the
transaction in good faith by a majority vote of all shareholders eligible to
vote, including the interested directors’ or officers’ votes;
(iii) the financial interest is unknown to the interested officer or
director at the time of approval; or (iv) the contract is fair to the
corporation at the time it is entered into. Board or committee approval must
be
by a majority of the disinterested directors, but interested directors may
be
counted for purposes of establishing the presence or absence of a
quorum.
Limitation
on Liability of Directors; Indemnification of Officers and
Directors
Nevada. Nevada
law
provides that a corporation may adopt in its bylaws provisions eliminating
or
limiting the personal liability of an officer or director from any threatened
civil, criminal, administrative or investigative action if adjudicated not
liable for a knowing breach of fiduciary duty, fraud or other intentional
misconduct or if the officer or director acted in good faith in the best
interest of the corporation, or, with respect to a criminal action if the
officer or director had no reasonable cause to believe that the conduct was
unlawful. The Nevada Articles eliminate the liability of directors of the
corporation for monetary damages to the fullest extent permissible under Nevada
law.
Article
8
of the Nevada Articles requires the Nevada Corporation to indemnify all such
persons whom it has the power to indemnify to the fullest extent legally
permissible by Nevada law. The Nevada Bylaws permit Nevada Corporation to
advance expenses to a director or officer, provided that the director or officer
undertakes to repay amounts advanced if it is ultimately determined that such
person is not entitled to indemnification, and subject to such other conditions
as the Board may impose.
Indemnification
rights under Nevada law are not exclusive. Accordingly, the Nevada Corporation’s
Bylaws specifically permit the Nevada Corporation to indemnify its directors,
officers, employees and other agents pursuant to an agreement, bylaw provision,
shareholder vote or vote of disinterested directors or otherwise, any or all
of
which may provide indemnification rights broader than those currently available
under the Colorado or Nevada indemnification statutes. Additionally,
the Nevada Charter Documents provide that the Nevada Corporation may purchase
insurance on behalf of those persons entitled to be indemnified by the
Corporation.
Colorado. The
Colorado Act provides the authority to limit liability against any director
of
the corporation made party to a proceeding because of their status as a director
if: (i) the person acted in good faith; (ii) the person reasonably believed
he
was acting in his official capacity in the best interest of the corporation,
or
if not in his official capacity, the conduct was not opposed to the best
interest of the corporation, and, in the case of any criminal proceeding, the
person had no cause to believe the conduct was wrongful. However, a corporation
may not limit liability in the following situations: (i) wherein
a
director is adjudicated liable to the corporation; or (ii) wherein a director
is
found to have derived an improper personal benefit from the course of action,
whether or not acting within his official capacity. The Colorado Act provides
that the indemnification provided must be limited to reasonable expenses
incurred in connection with the proceedings.
The
Colorado Act requires that, unless limited by the articles of incorporation,
a
corporation shall indemnify any director who, because of his position as
director, became a party to a proceeding wherein he prevailed on the merits
or
otherwise, against reasonable expenses incurred in connection with the
proceeding.
Dissenters'
Rights as a Result of the Reincorporation Merger
Colorado
Law provides to shareholders opposing the proposed Reincorporation the right
to
dissent and receive payment of the fair value of their shares as set forth
in
sections 7-113-101 et. seq. of the Colorado Act. (The referenced Colorado Act
provisions are attached hereto in their entirety as Appendix C.) The material
requirements for a shareholder to properly exercise his or her rights are
summarized below.
However,
the Colorado Act provisions are very technical in nature, and the following
summary is qualified in its entirety by the actual statutory provisions that
should be carefully reviewed by any shareholder wishing to assert the rights
provided therein.
Once
proposed, a corporate action that creates dissenters' rights is to be submitted
to a vote of the shareholders, whether at a shareholders’ meeting or via
shareholders’ written consent. The corporation is required to send notice to all
shareholders informing them of the applicability of dissenters' rights,
accompanied by all relevant Colorado Act provisions relating to dissenters’
rights. The failure to properly give notice shall not bar a shareholder who
was
entitled to dissent from asserting those rights subsequent to the corporate
action.
Following
receipt of adequate notice, shareholders exercising the right to dissent shall
send written notice to the corporation expressing their intention to demand
payment for their shares if the opposed corporate action is taken, and the
objecting shareholders must refrain from voting their shares in favor of the
action. If the proposed action merely requires shareholders’ written
consent, the dissenting shareholders shall refrain from executing a writing
that
would consent to such action. Compliance with the foregoing is mandatory and
if
the shareholders fail to comply, they will be precluded from demanding payment
for their shares if the opposed action is approved.
If
the
dissenting shareholder complies with the foregoing requirements, the shareholder
may demand payment by sending such request in writing and depositing with the
Corporation the shareholder's certificates for certificated
shares. The shareholder maintains all rights as shareholder until
such time as the opposed corporate action is taken. The demand for payment
and
the deposit of certificates is, with limited exceptions,
irrevocable.
Upon
receipt of each demand for payment, the Nevada Corporation, as the surviving
corporation, will pay each dissenting shareholder the “fair value” of the
shares. The fair value of the shares shall be determined as of the
time immediately before the opposed corporate action becomes effective. If
the
dissenting shareholder is dissatisfied with the fair value of the shares fixed
by the Corporation, the shareholder may reject in total the Corporation's offer
and send to the Corporation, in writing, an estimate of what such shareholder
considers fair value, plus any interest due if: (i) the shareholder believes
that the fair value offered is less than the fair value of the shares, or if
the
interest was miscalculated; or (ii) if the Corporation fails to make
payment within 60 days from the final day that demands for payment would be
received; or (iii) if the Colorado Corporation does not take the action opposed
by the shareholder and fails to return the deposited share certificates. A
dissenting shareholder loses the right to demand payment if he fails to respond
to the Corporation within 30 days of the day the Corporation made or offered
payment for the dissenter's shares.
If
the
dissenting shareholders and the Corporation are unable to agree on the fair
value of the shares, then the Corporation may commence a proceeding in the
Colorado courts within 60 days after the receipt of the dissenter's notice
of
estimate of fair value and interest owed. If the Corporation does not commence
such proceedings within the 60 day period, it must pay each dissenter the amount
demanded. If the proceeding is properly commenced, the court will determine
the
fair value of the shares.
The
foregoing is merely a summary of the dissenters' rights as provided within
the
Colorado Act. Shareholders that are considering dissenting from the
proposed action are strongly encouraged to seek outside independent counsel,
because the rules are highly technical and there are many deadlines for notices
and responses of which a dissenter must be aware in order to preserve all rights
provided under the law.
Amendment
to the Merger Agreement; Termination
The
Merger Agreement may be terminated and the Reincorporation abandoned,
notwithstanding shareholder approval, by the Board of Directors
of the Colorado Corporation at any time before consummation of the
Reincorporation if the Board of Directors of the Colorado Corporation determines
that in its judgment the Reincorporation does not appear to be in the best
interests of the Colorado Corporation or its shareholders.
OTHER
MATTERS
Transaction
of Other Business
As
of the
date of this Proxy Statement, Management has no knowledge of any business which
will be presented for consideration at the meeting other than that described
above. Should any other matter come before the meeting, it is the
intention of the Proxy Committee to vote such proxy in accordance with their
best judgment.
Shareholder
Proposals
In
order
for shareholder proposals intended to be presented at the next meeting of
Shareholders to be eligible for inclusion in the corporation's proxy statement
and the form of proxy for such meeting, they must be received by the Corporation
at its principal executive offices a reasonable time before the Corporation
prints its proxy materials for the meeting. In addition, if the
Corporation does not receive notice of a shareholder proposal within a
reasonable time before the Corporation mails its proxy materials to the
shareholders, then the proxies solicited by the Board of Directors may confer
on
the proxy committee discretionary authority to vote on the shareholder
proposal. The Board of Directors has not determined when there
will be another meeting of the shareholders.
Solicitation
of Proxies
The
entire expense of preparing, assembling and mailing this proxy statement, the
form of proxy and other material used in the solicitation of proxies will be
paid by the Colorado Corporation. In addition to the solicitation of
proxies by mail, arrangements may be made with brokerage houses and other
custodians, nominees and fiduciaries to send proxy material to their principals,
and the Colorado Corporation will reimburse them for expenses in so
doing. To the extent necessary in order to insure that sufficient
votes are cast, officers and agents of the Colorado Corporation, who will not
be
additionally compensated therefor, may request the return of proxies
personally. The extent to which this will be necessary depends on how
promptly proxies are received, and shareholders are urged to send their proxies
without delay.
By Order of the Board of Directors
Xiaojin
Wang
Chairman
of the Board
Dated: January
18, 2008
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of this 12th day
of
December, 2007, by and between Wincroft, Inc., a Colorado corporation (the
“Colorado Corporation”), and Wincroft, Inc., a Nevada corporation (the “Nevada
Corporation”).
W
I T N E
S S E T H:
WHEREAS,
the Colorado Corporation is a corporation duly organized, validly existing
and
in good standing under the laws of the State of Colorado; and
WHEREAS,
the Nevada Corporation is a corporation duly organized, validly existing and
in
good standing under the laws of the State of Nevada; and
WHEREAS,
the respective Boards of Directors of the Colorado Corporation and the Nevada
Corporation have determined that, for purposes of effecting the reincorporation
of the Colorado Corporation in the State of Nevada, it is advisable, to the
advantage of and in the best interests of the Nevada Corporation and its
stockholder and the Colorado Corporation and its stockholders that the Colorado
Corporation merge with and into the Nevada Corporation upon the terms and
subject to the conditions herein provided; and
WHEREAS,
the parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code
of
1986, as amended (the "Code"), and to cause the merger described herein to
qualify as a reorganization under the provisions of Section 368 of the Code;
and
WHEREAS,
the respective Boards of Directors of the Colorado Corporation and the Nevada
Corporation and the stockholder of the Nevada Corporation have unanimously
adopted and approved this Agreement, and the Board of Directors of the Colorado
Corporation has directed that this Agreement be submitted to the stockholders
of
the Colorado Corporation for their consideration.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, and intending to be legally bound, the Colorado Corporation and the
Nevada Corporation hereby agree as follows:
1.
Merger. Subject
to the approval of the stockholders of the Colorado Corporation in accordance
with the Colorado Business Corporation Act (the “Colorado Act”), at such time
hereafter as the parties hereto shall mutually agree, the Colorado Corporation
shall be merged with and into the Nevada Corporation (the “Merger”), and the
Nevada Corporation shall be the surviving company (hereinafter sometimes
referred to as the “Surviving Corporation”). The Merger shall be effective upon
(a) the filing of this Agreement together with Statement of Merger (the
“Statement of Merger”) with the office of the Colorado Secretary of State in
accordance with the provisions of Section 111-104.5 of the Colorado Act; and
(b)
the filing of a duly certified counterpart of this Agreement and a duly executed
Articles of Merger (the “Articles of Merger”) with the Secretary of State of the
State of Nevada in accordance with the applicable provisions of Chapter 92A
of
the Nevada Revised Statutes regarding Private Corporations ( the
“Nevada Private Corporation Statutes”); the date and time of the later of such
filings being hereinafter referred to as the “Effective
Date.” Following the due approval of the Merger by the stockholders
of the Colorado Corporation, subject to the provisions of this Agreement, the
Statement of Merger shall be duly executed by the Nevada Corporation and the
Colorado Corporation and thereafter delivered to the office of the Secretary
of
State of the State of Colorado, as provided in Section 111-104.5 of the Colorado
Act, and the Articles of Merger shall be duly executed by the Nevada Corporation
and the Colorado Corporation and thereafter delivered to the office of the
Secretary of State of Nevada, pursuant to Section 92A.200 of the Nevada Private
Corporation Statutes.
2.
Governing
Documents.
a.
The
Articles of Incorporation of the Nevada Corporation shall be the Articles of
Incorporation of the Surviving Corporation.
b.
The
By-Laws of the Nevada Corporation shall be the By-Laws of the Surviving
Corporation.
3.
Officers
and
Directors. The directors of the Colorado Corporation
immediately prior to the Effective Date shall be the directors of the Surviving
Corporation and the officers of the Colorado Corporation immediately prior
to
the Effective Date shall be the officers of the Surviving Corporation. Such
directors and officers will hold office from the Effective Date until their
respective successors are duly elected or appointed and qualified in the manner
provided in the Articles of Incorporation and By-Laws of the Surviving
Corporation, as the same may be lawfully amended, or as otherwise provided
by
law.
4.
Succession;
Name of
Surviving Corporation. As of the Effective Date, the separate
existence of the Colorado Corporation shall cease and the Colorado Corporation
shall be merged with and into the Nevada Corporation, and the name of the
Surviving Corporation shall be Wincroft, Inc. The Surviving
Corporation shall have all of the rights, privileges, immunities and powers
and
be subject to all of the duties and liabilities granted or imposed by Section
92A.250 of the Nevada Private Corporation Statutes.
5.
Further
Assistance. From and after the Effective Date, as and when
required by the Nevada Corporation or by its successors and assigns, there
shall
be executed and delivered on behalf of the Colorado Corporation such deeds
and
other instruments, and there shall be taken or caused to be taken by it such
further and other action, as shall be appropriate or necessary in order to
vest,
perfect or confirm, of record or otherwise, in the Nevada Corporation the title
to and possession of all the property, interests, assets, rights, privileges,
immunities, power, franchises and authority of the Colorado Corporation, and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of the Nevada Corporation are fully authorized in the name and on
behalf of the Colorado Corporation or otherwise to take any and all such action
and to execute and deliver any and all such deeds and other
instruments.
6.
Capital
Stock. At the Effective Date, by virtue of the Merger and
without any action on the part of the holder thereof, each eight (8) shares
of
common stock of the Colorado Corporation (“Colorado Common Stock”) outstanding
immediately prior to the Effective Date shall be changed and converted into
one
(1) fully paid and non-assessable share of common stock of the Nevada
Corporation (the “Nevada Common Stock”). The Nevada Corporation will
not issue fractional shares. The number of shares to be issued to
each shareholder will be rounded up to the nearest whole number if, as a result
of the Merger, the number of shares owned by any shareholder would not be a
whole number.
7.
Outstanding
Stock of the
Nevada Corporation. At the Effective Date, the 1,000 shares of
the Nevada Common Stock presently issued and outstanding in the name of the
Colorado Corporation shall be canceled and retired and resume the status of
authorized and unissued shares of Nevada Common Stock, and no shares of Nevada
Common Stock or other securities of Nevada Common Stock shall be issued in
respect thereof.
8.
Stock
Certificates. From and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of capital
stock of the Colorado Corporation shall be deemed for all purposes to evidence
ownership and to represent the shares of capital stock of the Nevada Corporation
into which such shares of the Colorado Corporation represented by such
certificates have been converted as herein provided. The registered owner on
the
books and records of the Nevada Corporation or its transfer agent of any such
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to the Nevada Corporation
or
its transfer agent, have and be entitled to exercise any voting and other rights
with respect to and to receive any dividend and other distributions upon the
shares of capital stock of the Nevada Corporation evidenced by such outstanding
certificates as above provided.
9.
Validity
of Nevada Common
Stock. All shares of Nevada Common Stock into which Colorado
Common Stock is to be converted pursuant to the Merger shall not be subject
to
any statutory or contractual preemptive rights, shall, when issued, be validly
issued, fully paid and nonassessable and shall be issued in full satisfaction
of
all rights pertaining to such Colorado Common Stock.
10. Rights of Former
Holders. From and after the Effective Date, no holder of
certificates which evidenced Colorado Common Stock immediately prior to the
Effective Date shall have any rights with respect to the shares formerly
evidenced by those certificates, other than the right to receive the shares
of
Nevada Common Stock into which such Colorado Common Stock shall have been
converted pursuant to the Merger.
11. Abandonment and
Termination. At any time before the Effective Date, this
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either the Colorado Corporation or the Nevada Corporation or both,
notwithstanding approval of this Agreement by the sole stockholder of the Nevada
Corporation and the stockholders of the Colorado Corporation.
12. Third
Parties. Except as provided in this Agreement, nothing herein
expressed or implied is intended or shall be construed to confer upon or give
any person, firm or corporation, other than the parties hereto or their
respective successors and assigns, any rights or remedies under or by reason
of
this Agreement.
13. Approval of
Colorado Corporation as the Sole Stockholder of the Nevada
Corporation. By its execution and delivery of this Agreement,
the Colorado Corporation, as the sole stockholder of the Nevada Corporation,
consents to, approves and adopts this Agreement and approves the Merger, subject
to the approval and adoption of this Agreement by the holders of a majority
of
the shares of the Colorado Common Stock. The Colorado Corporation agrees to
execute such instruments as may be necessary or desirable to evidence its
approval and adoption of this Agreement and Merger as the sole stockholder
of
the Nevada Corporation.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have caused this Agreement to be executed as of this day and year first above
written.
Wincroft,
Inc.
Wincroft, Inc.
(the
Colorado
Corporation)
(the Nevada Corporation)
By:
/s/
Xiaojin
Wang
By: /s/ Xiaojin Wang
Name:
Xiaojin
Wang
Name: Xiaojin Wang
Title:
Chief Executive
Officer Title:
Chief Executive Officer
ROSS
MILLER
Secretary
of State
206
North Carson Street
Carson
City, Nevada 89701-4299
(775)
684 5708
Website:
secretaryofstate.biz
Articles
of Incorporation
(PURSUANT
TO NRS 78)
|
1.
|
Name
of Corporation:
Wincroft, Inc.
|
|
2.
|
Resident
Agent Name: CSC
Services of Nevada, Inc.
|
Resident
Agent Street Address: 502 East John Street, Carson City Nevada
89706
|
3.
|
Number
of shares:
125,000,000 shares, consisting of 100,000,000 shares of Common Stock,
$.001 par value, and 25,000,000 shares of Preferred Stock, $.001
par
value. The
Preferred Stock, or any series thereof, shall have such designations,
preferences and relative, participating, optional or other special
rights
and qualifications, limitations or restrictions thereof as shall
be set
forth in the resolution or resolutions adopted by the board of directors
after the date hereof providing for the issue of such stock, and
may be
made dependent upon facts ascertainable outside such resolution or
resolutions of the board of directors, provided that the matter in
which
such facts shall operate upon such designations, preferences, rights
and
qualifications, limitations or restrictions of such class or series
of
stock is clearly and expressly set forth in the resolution or resolutions
providing for the issuance of such stock by the board of
directors.
|
|
4.
|
Name
& Address of Board of
Directors/Trustees:
|
Xiaojin
Wang
c/o
American Union Securities
100
Wall
St. 15th Floor
New
York,
NY 10005
|
5.
|
Purpose:
To engage in
any lawful activity within or without the State of
Nevada
|
|
6.
|
Names,
Address and Signature of
Incorporator:
|
Jennifer
N. Boyd
220
West
Norwalk Road, Norwalk, CT 06850
Signature:
/s/ Jennifer N.
Boyd
|
7.
|
Certificate
of Acceptance of Appointment of Resident
Agent:
|
I
hereby
accept appointment as Resident Agent for the above named
corporation.
/s/
Corporation Service Company Date:
Authorized
Signature of R.A. or On behalf of R.A. Company
ARTICLES
OF INCORPORATION
OF
WINCROFT,
INC.
(Additional
Provisions)
8.
Indemnification
Any
person made a party to any action, suit or proceeding by reason of the fact
that
he is or was a director, officer or employee of the Corporation or of any
corporation which he served as such at the request of the Corporation, shall
be
indemnified by the Corporation against all expenses and other amounts for which
indemnification may be made under law. The indemnification provided for herein
shall be made at the times, in the manner and to the fullest extent provided
by
law.
Neither
any amendment nor repeal of this Article 8, nor the adoption of any provision
of
the Corporation’s Articles of Incorporation inconsistent with this Article,
shall eliminate or reduce the effect of this Article in respect of any matter
occurring, or any action or proceeding accruing or arising or that, but for
this
Article, would accrue or arise, prior to such amendment, repeal or adoption
of
an inconsistent provision.
The
Corporation expressly elects not to be governed by Nevada Revised Statutes
78.411 to 78.444, inclusive. Further, the provisions of the Nevada Revised
Statutes 78.378 to 78.3793, inclusive, shall not apply to the
Corporation.
|
10.
|
Limitation
of Director and Officer Liability
|
No
director or officer of the Corporation shall be personally liable to the
Corporation or its shareholders for damages for breach of their fiduciary duty
as a director or officer; provided, however, that this Article 10 shall not
eliminate or limit the liability of a director of officer for (i) acts or
omissions which involve intentional misconduct, fraud or a knowing violation
of
law; or (ii) authorizing the payment of distributions in violation of Nevada
Revised Statutes 78.300.
APPENDIX
C
TITLE
7.
CORPORATIONS AND ASSOCIATIONS
COLORADO
BUSINESS CORPORATIONS
ARTICLE
113. DISSENTERS' RIGHTS
PART
1.
RIGHT OF DISSENT - PAYMENT FOR SHARES
7-113-101.
Definitions
For
purposes of this article:
(1)
"Beneficial shareholder" means the beneficial owner of shares held in a voting
trust or by a nominee as the record shareholder.
(2)
"Corporation" means the issuer of the shares held by a dissenter before the
corporate action, or the surviving or acquiring domestic or foreign corporation,
by merger or share exchange of that issuer.
(3)
"Dissenter" means a shareholder who is entitled to dissent from corporate action
under section 7-113-102 and who exercises that right at the time and in the
manner required by part 2 of this article.
(4)
"Fair
value", with respect to a dissenter's shares, means the value of the shares
immediately before the effective date of the corporate action to which the
dissenter objects, excluding any appreciation or depreciation in anticipation
of
the corporate action except to the extent that exclusion would be
inequitable.
(5)
"Interest" means interest from the effective date of the corporate action until
the date of payment, at the average rate currently paid by the corporation
on
its principal bank loans or, if none, at the legal rate as specified in section
5-12-101, C.R.S.
(6)
"Record shareholder" means the person in whose name shares are registered in
the
records of a corporation or the beneficial owner of shares that are registered
in the name of a nominee to the extent such owner is recognized by the
corporation as the shareholder as provided in section 7-107-204.
(7)
"Shareholder" means either a record shareholder or a beneficial
shareholder.
7-113-102.
Right to dissent
(1)
A
shareholder, whether or not entitled to vote, is entitled to dissent and obtain
payment of the fair value of the shareholder's shares in the event of any of
the
following corporate actions:
(a)
Consummation of a plan of merger to which the corporation is a party
if:
(I)
Approval by the shareholders of that corporation is required for the merger
by
section 7-111-103 or 7-111-104 or by the articles of incorporation;
or
(II)
The
corporation is a subsidiary that is merged with its parent corporation under
section 7-111-104;
(b)
Consummation of a plan of share exchange to which the corporation is a party
as
the corporation whose shares will be acquired;
(c)
Consummation of a sale, lease, exchange, or other disposition of all, or
substantially all, of the property of the corporation for which a shareholder
vote is required under section 7-112-102 (1);
(d)
Consummation of a sale, lease, exchange, or other disposition of all, or
substantially all, of the property of an entity controlled by the corporation
if
the shareholders of the corporation were entitled to vote upon the consent
of
the corporation to the disposition pursuant to section 7-112-102 (2);
and
(e)
Consummation of a conversion in which the corporation is the converting entity
as provided in section
7-90-206 (2).
(1.3)
A
shareholder is not entitled to dissent and obtain payment, under subsection
(1)
of this section, of the fair value of the shares of any class or series of
shares which either were listed on a national securities exchange registered
under the federal "Securities Exchange Act of 1934", as amended, or on the
national market system of the national association of securities dealers
automated quotation system, or were held of record by more than two thousand
shareholders, at the time of:
(a)
The
record date fixed under section 7-107-107 to determine the shareholders entitled
to receive notice of the shareholders' meeting at which the corporate action
is
submitted to a vote;
(b)
The
record date fixed under section 7-107-104 to determine shareholders entitled
to
sign writings consenting to the corporate action; or
(c)
The
effective date of the corporate action if the corporate action is authorized
other than by a vote of shareholders.
(1.8)
The
limitation set forth in subsection (1.3) of this section shall not apply if
the
shareholder will receive for the shareholder's shares, pursuant to the corporate
action, anything except:
(a)
Shares of the corporation surviving the consummation of the plan of merger
or
share exchange;
(b)
Shares of any other corporation which at the effective date of the plan of
merger or share exchange either will be listed on a national securities exchange
registered under the federal "Securities Exchange Act of 1934", as amended,
or
on the national market system of the national association of securities dealers
automated quotation system, or will be held of record by more than two thousand
shareholders;
(c)
Cash
in lieu of fractional shares; or
(d)
Any
combination of the foregoing described shares or cash in lieu of fractional
shares.
(2)
(Deleted by amendment, L. 96, p. 1321, § 30, effective June 1,
1996.)
(2.5)
A
shareholder, whether or not entitled to vote, is entitled to dissent and obtain
payment of the fair value of the shareholder's shares in the event of a reverse
split that reduces the number of shares owned by the shareholder to a fraction
of a share or to scrip if the fractional share or scrip so created is to be
acquired for cash or the scrip is to be voided under section
7-106-104.
(3)
A
shareholder is entitled to dissent and obtain payment of the fair value of
the
shareholder's shares in the event of any corporate action to the extent provided
by the bylaws or a resolution of the board of directors.
(4)
A
shareholder entitled to dissent and obtain payment for the shareholder's shares
under this article may not challenge the corporate action creating such
entitlement unless the action is unlawful or fraudulent with respect to the
shareholder or the corporation.
7-113-103.
Dissent by nominees and beneficial owners
(1)
A
record shareholder may assert dissenters' rights as to fewer than all the shares
registered in the record shareholder's name only if the record shareholder
dissents with respect to all shares beneficially owned by any one person and
causes the corporation to receive written notice which states such dissent
and
the name, address, and federal taxpayer identification number, if any, of each
person on whose behalf the record shareholder asserts dissenters' rights. The
rights of a record shareholder under this subsection (1) are determined as
if
the shares as to which the record shareholder dissents and the other shares
of
the record shareholder were registered in the names of different
shareholders.
(2)
A
beneficial shareholder may assert dissenters' rights as to the shares held
on
the beneficial shareholder's behalf only if:
(a)
The
beneficial shareholder causes the corporation to receive the record
shareholder's written consent to the dissent not later than the time the
beneficial shareholder asserts dissenters' rights; and
(b)
The
beneficial shareholder dissents with respect to all shares beneficially owned
by
the beneficial shareholder.
(3)
The
corporation may require that, when a record shareholder dissents with respect
to
the shares held by any one or more beneficial shareholders, each such beneficial
shareholder must certify to the corporation that the beneficial shareholder
and
the record shareholder or record shareholders of all shares owned beneficially
by the beneficial shareholder have asserted, or will timely assert, dissenters'
rights as to all such shares as to which there is no limitation on the ability
to exercise dissenters' rights. Any such requirement shall be stated in the
dissenters' notice given pursuant to section 7-113-203.
PART
2.
PROCEDURE FOR EXERCISE OF DISSENTERS' RIGHTS
7-113-201.
Notice of dissenters' rights
(1)
If a
proposed corporate action creating dissenters' rights under section 7-113-102
is
submitted to a vote at a shareholders' meeting, the notice of the meeting shall
be given to all shareholders, whether or not entitled to vote. The notice shall
state that shareholders are or may be entitled to assert dissenters' rights
under this article and shall be accompanied by a copy of this article and the
materials, if any, that, under articles 101 to 117 of this title, are required
to be given to shareholders entitled to vote on the proposed action at the
meeting. Failure to give notice as provided by this subsection (1) shall not
affect any action taken at the shareholders' meeting for which the notice was
to
have been given, but any shareholder who was entitled to dissent but who was
not
given such notice shall not be precluded from demanding payment for the
shareholder's shares under this article by reason of the shareholder's failure
to comply with the provisions of section 7-113-202 (1).
(2)
If a
proposed corporate action creating dissenters' rights under section 7-113-102
is
authorized without a meeting of shareholders pursuant to section 7-107-104,
any
written or oral solicitation of a shareholder to execute a writing consenting
to
such action contemplated in section 7-107-104 shall be accompanied or preceded
by a written notice stating that shareholders are or may be entitled to assert
dissenters' rights under this article, by a copy of this article, and by the
materials, if any, that, under articles 101 to 117 of this title, would have
been required to be given to shareholders entitled to vote on the proposed
action if the proposed action were submitted to a vote at a shareholders'
meeting. Failure to give notice as provided by this subsection (2) shall not
affect any action taken pursuant to section 7-107-104 for which the notice
was
to have been given, but any shareholder who was entitled to dissent but who
was
not given such notice shall not be precluded from demanding payment for the
shareholder's shares under this article by reason of the shareholder's failure
to comply with the provisions of section 7-113-202 (2).
7-113-202.
Notice of intent to demand payment
(1)
If a
proposed corporate action creating dissenters' rights under section 7-113-102
is
submitted to a vote at a shareholders' meeting and if notice of dissenters'
rights has been given to such shareholder in connection with the action pursuant
to section 7-113-201 (1), a shareholder who wishes to assert dissenters' rights
shall:
(a)
Cause
the corporation to receive, before the vote is taken, written notice of the
shareholder's intention to demand payment for the shareholder's shares if the
proposed corporate action is effectuated; and
(b)
Not
vote the shares in favor of the proposed corporate action.
(2)
If a
proposed corporate action creating dissenters' rights under section 7-113-102
is
authorized without a meeting of shareholders pursuant to section 7-107-104
and
if notice of dissenters' rights has been given to such shareholder in connection
with the action pursuant to section 7-113-201 (2), a shareholder who wishes
to
assert dissenters' rights shall not execute a writing consenting to the proposed
corporate action.
(3)
A
shareholder who does not satisfy the requirements of subsection (1) or (2)
of
this section is not entitled to demand payment for the shareholder's shares
under this article.
7-113-203.
Dissenters' notice
(1)
If a
proposed corporate action creating dissenters' rights under section 7-113-102
is
authorized, the corporation shall give a written dissenters' notice to all
shareholders who are entitled to demand payment for their shares under this
article.
(2)
The
dissenters' notice required by subsection (1) of this section shall be given
no
later than ten days after the effective date of the corporate action creating
dissenters' rights under section 7-113-102 and shall:
(a)
State
that the corporate action was authorized and state the effective date or
proposed effective date of the corporate action;
(b)
State
an address at which the corporation will receive payment demands and the address
of a place where certificates for certificated shares must be
deposited;
(c)
Inform holders of uncertificated shares to what extent transfer of the shares
will be restricted after the payment demand is received;
(d)
Supply a form for demanding payment, which form shall request a dissenter to
state an address to which payment is to be made;
(e)
Set
the date by which the corporation must receive the payment demand and
certificates for certificated shares, which date shall not be less than thirty
days after the date the notice required by subsection (1) of this section is
given;
(f)
State
the requirement contemplated in section 7-113-103 (3), if such requirement
is
imposed; and
(g)
Be
accompanied by a copy of this article.
7-113-204.
Procedure to demand payment
(1)
A
shareholder who is given a dissenters' notice pursuant to section 7-113-203
and
who wishes to assert dissenters' rights shall, in accordance with the terms
of
the dissenters' notice:
(a)
Cause
the corporation to receive a payment demand, which may be the payment demand
form contemplated in section 7-113-203 (2) (d), duly completed, or may be stated
in another writing; and
(b)
Deposit the shareholder's certificates for certificated shares.
(2)
A
shareholder who demands payment in accordance with subsection (1) of this
section retains all rights of a shareholder, except the right to transfer the
shares, until the effective date of the proposed corporate action giving rise
to
the shareholder's exercise of dissenters' rights and has only the right to
receive payment for the shares after the effective date of such corporate
action.
(3)
Except as provided in section 7-113-207 or 7-113-209 (1) (b), the demand for
payment and deposit of certificates are irrevocable.
(4)
A
shareholder who does not demand payment and deposit the shareholder's share
certificates as required by the date or dates set in the dissenters' notice
is
not entitled to payment for the shares under this article.
7-113-205.
Uncertificated shares
(1)
Upon
receipt of a demand for payment under section 7-113-204 from a shareholder
holding uncertificated shares, and in lieu of the deposit of certificates
representing the shares, the corporation may restrict the transfer
thereof.
(2)
In
all other respects, the provisions of section 7-113-204 shall be applicable
to
shareholders who own uncertificated shares.
7-113-206.
Payment
(1)
Except as provided in section 7-113-208, upon the effective date of the
corporate action creating dissenters' rights under section 7-113-102 or upon
receipt of a payment demand pursuant to section 7-113-204, whichever is later,
the corporation shall pay each dissenter who complied with section 7-113-204,
at
the address stated in the payment demand, or if no such address is stated in
the
payment demand, at the address shown on the corporation's current record of
shareholders for the record shareholder holding the dissenter's shares, the
amount the corporation estimates to be the fair value of the dissenter's shares,
plus accrued interest.
(2)
The
payment made pursuant to subsection (1) of this section shall be accompanied
by:
(a)
The
corporation's balance sheet as of the end of its most recent fiscal year or,
if
that is not available, the corporation's balance sheet as of the end of a fiscal
year ending not more than sixteen months before the date of payment, an income
statement for that year, and, if the corporation customarily provides such
statements to shareholders, a statement of changes in shareholders' equity
for
that year and a statement of cash flow for that year, which balance sheet and
statements shall have been audited if the corporation customarily provides
audited financial statements to shareholders, as well as the latest available
financial statements, if any, for the interim or full-year period, which
financial statements need not be audited;
(b)
A
statement of the corporation's estimate of the fair value of the
shares;
(c)
An
explanation of how the interest was calculated;
(d)
A
statement of the dissenter's right to demand payment under section 7-113-209;
and
(e)
A
copy of this article.
7-113-207.
Failure to take action
(1)
If
the effective date of the corporate action creating dissenters' rights under
section 7-113-102 does not occur within sixty days after the date set by the
corporation by which the corporation must receive the payment demand as provided
in section 7-113-203, the corporation shall return the deposited certificates
and release the transfer restrictions imposed on uncertificated
shares.
(2)
If
the effective date of the corporate action creating dissenters' rights under
section 7-113-102 occurs more than sixty days after the date set by the
corporation by which the corporation must receive the payment demand as provided
in section 7-113-203, then the corporation shall send a new dissenters' notice,
as provided in section 7-113-203, and the provisions of sections 7-113-204
to
7-113-209 shall again be applicable.
7-113-208.
Special provisions relating to shares acquired after announcement of proposed
corporate action
(1)
The
corporation may, in or with the dissenters' notice given pursuant to section
7-113-203, state the date of the first announcement to news media or to
shareholders of the terms of the proposed corporate action creating dissenters'
rights under section 7-113-102 and state that the dissenter shall certify in
writing, in or with the dissenter's payment demand under section 7-113-204,
whether or not the dissenter (or the person on whose behalf dissenters' rights
are asserted) acquired beneficial ownership of the shares before that date.
With
respect to any dissenter who does not so certify in writing, in or with the
payment demand, that the dissenter or the person on whose behalf the dissenter
asserts dissenters' rights acquired beneficial ownership of the shares before
such date, the corporation may, in lieu of making the payment provided in
section 7-113-206, offer to make such payment if the dissenter agrees to accept
it in full satisfaction of the demand.
(2)
An
offer to make payment under subsection (1) of this section shall include or
be
accompanied by the information required by section 7-113-206 (2).
7-113-209.
Procedure if dissenter is dissatisfied with payment or offer
(1)
A
dissenter may give notice to the corporation in writing of the dissenter's
estimate of the fair value of the dissenter's shares and of the amount of
interest due and may demand payment of such estimate, less any payment made
under section 7-113-206, or reject the corporation's offer under section
7-113-208 and demand payment of the fair value of the shares and interest due,
if:
(a)
The
dissenter believes that the amount paid under section 7-113-206 or offered
under
section 7-113-208 is less than the fair value of the shares or that the interest
due was incorrectly calculated;
(b)
The
corporation fails to make payment under section 7-113-206 within sixty days
after the date set by the corporation by which the corporation must receive
the
payment demand; or
(c)
The
corporation does not return the deposited certificates or release the transfer
restrictions imposed on uncertificated shares as required by section 7-113-207
(1).
(2)
A
dissenter waives the right to demand payment under this section unless the
dissenter causes the corporation to receive the notice required by subsection
(1) of this section within thirty days after the corporation made or offered
payment for the dissenter's shares.
PART
3.
JUDICIAL APPRAISAL OF SHARES
7-113-301.
Court action
(1)
If a
demand for payment under section 7-113-209 remains unresolved, the corporation
may, within sixty days after receiving the payment demand, commence a proceeding
and petition the court to determine the fair value of the shares and accrued
interest. If the corporation does not commence the proceeding within the
sixty-day period, it shall pay to each dissenter whose demand remains unresolved
the amount demanded.
(2)
The
corporation shall commence the proceeding described in subsection (1) of this
section in the district court for the county in this state in which the street
address of the corporation's principal office is located, or, if the corporation
has no principal office in this state, in the district court for the county
in
which the street address of its registered agent is located, or, if the
corporation has no registered agent, in the district court for the city and
county of Denver. If the corporation is a foreign corporation without a
registered agent, it shall commence the proceeding in the county in which the
domestic corporation merged into, or whose shares were acquired by, the foreign
corporation would have commenced the action if that corporation were subject
to
the first sentence of this subsection (2).
(3)
The
corporation shall make all dissenters, whether or not residents of this state,
whose demands remain unresolved parties to the proceeding commenced under
subsection (2) of this section as in an action against their shares, and all
parties shall be served with a copy of the petition. Service on each dissenter
shall be by registered or certified mail, to the address stated in such
dissenter's payment demand, or if no such address is stated in the payment
demand, at the address shown on the corporation's current record of shareholders
for the record shareholder holding the dissenter's shares, or as provided by
law.
(4)
The
jurisdiction of the court in which the proceeding is commenced under subsection
(2) of this section is plenary and exclusive. The court may appoint one or
more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or in any amendment to such order. The parties to the
proceeding are entitled to the same discovery rights as parties in other civil
proceedings.
(5)
Each
dissenter made a party to the proceeding commenced under subsection (2) of
this
section is entitled to judgment for the amount, if any, by which the court
finds
the fair value of the dissenter's shares, plus interest, exceeds the amount
paid
by the corporation, or for the fair value, plus interest, of the dissenter's
shares for which the corporation elected to withhold payment under section
7-113-208.
7-113-302.
Court costs and counsel fees
(1)
The
court in an appraisal proceeding commenced under section 7-113-301 shall
determine all costs of the proceeding, including the reasonable compensation
and
expenses of appraisers appointed by the court. The court shall assess the costs
against the corporation; except that the court may assess costs against all
or
some of the dissenters, in amounts the court finds equitable, to the extent
the
court finds the dissenters acted arbitrarily, vexatiously, or not in good faith
in demanding payment under section 7-113-209.
(2)
The
court may also assess the fees and expenses of counsel and experts for the
respective parties, in amounts the court finds equitable:
(a)
Against the corporation and in favor of any dissenters if the court finds the
corporation did not substantially comply with part 2 of this article;
or
(b)
Against either the corporation or one or more dissenters, in favor of any other
party, if the court finds that the party against whom the fees and expenses
are
assessed acted arbitrarily, vexatiously, or not in good faith with respect
to
the rights provided by this article.
(3)
If
the court finds that the services of counsel for any dissenter were of
substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the corporation, the court
may
award to said counsel reasonable fees to be paid out of the amounts awarded
to
the dissenters who were benefitted.
* * * * *