Goldenway, Inc.: Exhibit 10.1 - Filed by newsfilecorp.com





AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

 

 

	 
	by and among 
	  
	GOLDENWAY, INC. 
	 
	and 
	 
	GOLDENWAY FINANCIAL HOLDINGS LIMITED 
	 


 

 

 

Dated as of August 28, 2012




TABLE OF CONTENTS

	 	  	  	Page(s) 
	ARTICLE I THE
      MERGER 	2 
	 	Section 1.1 	The Merger 	2 
	 	Section 1.2 	Articles of Merger; Effective
      Time 	2 
	ARTICLE II SURVIVING CORPORATION;
      EFFECT OF MERGER ON CHARTER DOCUMENTS AND DIRECTORS AND OFFICERS 	2 
	 	Section 2.1 	Name of Surviving Corporation
    	2 
	 	Section 2.2 	Constituent Documents of Surviving Corporation
    	2 
	 	Section 2.3 	Directors and Officers of
      Surviving Corporation	3
	ARTICLE III EFFECTS OF MERGER ON
      CAPITAL STOCK OF CONSTITUENT CORPORATIONS; EXCHANGE OF SHARES 	3 
	 	Section 3.1 	Effect on Capital Stock 	3 
	 	Section 3.2 	Exchange of Goldenway Financial Shares 	3 
	ARTICLE IV
      ASSUMPTION OF CONTRACTS 	4 
	 	Section 4.1 	Assumption 	4 
	 	Section 4.2 	Other Actions 	4 
	ARTICLE V CONDITIONS PRECEDENT 	4 
	 	Section 5.1 	Conditions to Each Party’s
      Obligation to Effect the Merger 	4 
	ARTICLE VI COVENANTS 	5 
	 	Section 6.1 	Rule 16b-3 Approval 	5 
	 	Section 6.2 	Further Assurances 	5 
	ARTICLE VII
      TERMINATION, AMENDMENT AND WAIVER 	5 
	 	Section 7.1 	Termination 	5 
	 	Section 7.2 	Effect of Termination and
      Abandonment 	5 
	 	Section 7.3 	Amendment 	5 
	 	Section 7.4 	Waiver 	6 
	ARTICLE VIII GENERAL PROVISIONS 	6 
	 	Section 8.1 	Assignment; Binding Effect 	6 
	 	Section 8.2 	Entire Agreement 	6 
	 	Section 8.3 	Severability 	6



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	 	Section 8.4 	Headings 	6 
	 	Section 8.5 	Counterparts 	6 
	 	Section 8.6 	Governing Law 	7 
	 	Section 8.7 	No Third Party Beneficiaries 	7 


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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION

AGREEMENT AND PLAN OF MERGER AND REORGANIZATION, dated as of
August 28, 2012 (this “Agreement”), by and among, GOLDENWAY, INC., a
corporation incorporated under the laws of the State of Nevada (the
“Company”) and GOLDENWAY FINANCIAL HOLDINGS LIMITED, a company
incorporated under the laws of the Hong Kong, Special Administrative Region of
the People’s Republic of China (“Hong Kong”) and a wholly-owned
subsidiary of the Company (“Goldenway Financial”).

WITNESSETH:

     WHEREAS, the board of directors
of each of the Company and Goldenway Financial have unanimously determined that
it is advisable and in the best interests of their respective shareholders to
reorganize so that Goldenway Financial will become the parent of Goldenway, Inc.
as a result of the merger of Goldenway Financial with and into the Company (the
“Merger”); and

     WHEREAS, the respective board of
directors of each of the Company and Goldenway Financial have unanimously
approved the Merger, this Agreement and, to the extent applicable, the other
transactions described herein, pursuant to which Goldenway Financial will be the
surviving corporation of the Merger, upon the terms and subject to the
conditions set forth in this Agreement, whereby each issued share of the common
stock, par value US$0.001 per share, of the Company (“NV Common Stock”)
shall be converted into the right to receive one ordinary share, par value
US$0.001 per share, of Goldenway Financial (“HK Ordinary Shares”); and


     WHEREAS, the Merger requires,
among other things, the adoption of this Agreement by the affirmative vote of
the holders of a majority of the issued and outstanding shares of the NV Common
Stock; and the holders of a 71% majority of the issued and outstanding shares of
the NV Common Stock (the “Majority Stockholders”) have acted by written
consent to approve the execution of this Agreement and the consummation of the
transactions contemplated hereby in accordance with the Nevada Revised Statutes,
including the Merger, on the terms and conditions set forth herein; and

     WHEREAS, the Company, as sole
shareholder of Goldenway Financial, has adopted resolutions approving the
execution of this Agreement and the consummation of the transactions
contemplated thereby, in accordance with Hong Kong law, on the terms and
conditions set forth herein; and

     WHEREAS, the parties intend that
the Merger qualify as a “reorganization” within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the “Code”), and that this
Agreement shall be, and is hereby, adopted as a “plan of reorganization” for
purposes of Section 368(a) of the Code or, alternatively, that the Merger be
treated for United States federal income tax purposes as a contribution of
shares of the Company to Goldenway Financial by stockholders of the Company
qualifying as a tax-free exchange within the meaning of Section 351 of the
Code.




     NOW, THEREFORE, in consideration
of the foregoing and the representations, warranties, covenants and agreements
herein contained, and intending to be legally bound hereby, each of the parties
hereto (together, the “Parties”) hereby agrees as follows:

ARTICLE I
THE MERGER

     Section 1.1 The Merger.
Upon the terms and subject to the conditions set forth in this Agreement and in
accordance with the Nevada Revised Statutes (the “NRS”) at the Effective Time
(as defined in Section 1.2), the Company shall be merged with an into Goldenway
Financial in accordance with this Agreement, and the separate existence of
Merger Sub the Company shall thereupon cease. Pursuant to and simultaneously
upon the consummation of the Merger at the Effective Time, in accordance with
the NRS, (a) Goldenway Financial shall continue as the surviving corporation in
the Merger (sometimes hereinafter referred to as the “Surviving Corporation”),
(b) the corporate identity, existence, powers, rights and immunities of the
Company as the Surviving Corporation shall continue unimpaired by the Merger,
and (c) Goldenway Financial shall succeed to and shall possess all the assets,
properties, rights, privileges, powers, franchises, immunities and purposes, and
be subject to all the debts, liabilities, obligations, restrictions and duties
of the Company, all without further act or deed. 

     Section 1.2 Articles of
Merger; Effective Time. As soon as practicable following the satisfaction
or, to the extent permitted by applicable law, waiver of the conditions set
forth in Article V, if this Agreement shall not have been terminated prior
thereto as provided in Section 7.1, Goldenway Financial and the Company shall
cause the articles of merger (the “Articles of Merger”) with respect to the
Merger to be filed with the Secretary of State of the State of Nevada (the
“Nevada Secretary of State”), in such form as is required by, and executed in
accordance with, the relevant provisions of the NRS. The Merger shall become
effective upon the filing of the Articles of Merger or on such later date and
time as Goldenway Financial and the Company shall have designated in the
Articles of Merger as the effective time of the Merger (the “Effective
Time”).

ARTICLE II 
SURVIVING CORPORATION; 
EFFECT OF
MERGER ON CHARTER DOCUMENTS 
AND DIRECTORS AND OFFICERS

     Section 2.1 Name of Surviving
Corporation. The name of the Surviving Corporation shall be “Goldenway
Financial Holdings Limited”

     Section 2.2 Constituent
Documents of Surviving Corporation. From and after the Effective Time, the
terms and provisions of the articles of incorporation and bylaws of the Company
in effect immediately prior to the Effective Time (except with respect to the
name of the Company) shall be combined into the Memorandum and Articles of
Association of the Surviving Corporation, except to the extent that any
provision thereof is prohibited by applicable Hong Kong law or to the extent
that any additional provisions are mandated by such law.

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     Section 2.3 Directors and
Officers of Surviving Corporation. Immediately prior to the Effective Time,
the Company, in its capacity as the sole shareholder of Goldenway Financial,
agrees to take or cause to be taken all such actions as are necessary to cause
those persons serving as the directors and officers of the Company immediately
prior to the Effective Time to be elected or appointed as the directors and
officers of Goldenway Financial (to the extent the officers and directors of
Goldenway Financial and the Company are not already identical), each such person
to have the same office(s) with Goldenway Financial (and the same committee
memberships in the case of directors) as he or she held with the Company, with
the directors to serve until the earlier of the next meeting of the Goldenway
Financial shareholders at which an election of directors is required or until
their successors are elected or appointed (or their earlier death, disability or
retirement).

ARTICLE III
EFFECTS OF MERGER ON CAPITAL STOCK
OF
CONSTITUENT CORPORATIONS; EXCHANGE OF SHARES

     Section 3.1 Effect on Capital
Stock. At the Effective Time, by virtue of the Merger and without any action
on the part of either the Company or Goldenway Financial: (a) each share of
common stock of the Company issued and outstanding immediately prior to the
Effective Time (each an “NV Common Stock”) shall be converted into the
right to receive one validly issued, fully paid and non-assessable ordinary
share of Goldenway Financial (the “HK Ordinary Shares”), and
Goldenway Financial shall issue to each holder of such right that number of HK
Ordinary Shares to which each such holder is entitled; and (b) Goldenway
Financial will repurchase the one HK Ordinary Share that was held by the Company
prior to the Merger at a purchase price of US$0.001. 

     Section 3.2 Exchange of
Goldenway Financial Shares. 

     (a) At the Effective Time, each
outstanding share of NV Common Stock held in uncertificated, book entry form
will be exchanged for one HK Ordinary Share pursuant to Section 3.1 above
without further act or deed by the holder thereof, and record of such ownership
shall be kept in uncertificated, book entry form by Goldenway Financial’s
transfer agent, Interwest Transfer Company, Inc.

     (b) At the Effective Time, each
outstanding share of NV Common Stock held in certificated form will be converted
into the right to receive one HK Ordinary Share pursuant to Section 3.1 above
without further act or deed by the holder thereof, and the holder thereof will
cease to be, and will have no rights as, a stockholder of the Company. Following
the consummation of the Merger, the Company’s exchange agent will send a letter
of transmittal to the stockholders of the Company, explaining the procedure for
surrendering such holders’ NV Common Stock certificates in exchange for share
certificates representing HK Ordinary Shares.

     (c) At the Effective Time, all
holders of NV Common Stock will cease to be, and will have no rights as,
stockholders of the Company, other than the right to receive: (i) any dividend
or other distribution with a record date prior to the Effective Time that may
have been declared or made by the Company on such shares of NV Common Stock in
accordance with the terms of this Agreement or prior to the date of this
Agreement and that remain unpaid at the Effective Time and (ii) the HK Ordinary Shares pursuant to Section 3.1.
Upon and after the Effective Time, shareholders registered in the register of
members of Goldenway Financial, including the former stockholders of the
Company, will have and be entitled to exercise any voting and other rights with
respect to and to receive any dividend and other distributions upon HK Ordinary
Shares registered in their respective names.

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ARTICLE IV
ASSUMPTION OF CONTRACTS

     Section 4.1 Assumption. At
the Effective Time, the obligations of the Company under or with respect to
contracts or agreements listed on Annex A (collectively, the
“Assumed Contracts”) shall become the lawful obligations of
Goldenway Financial and shall be performed in the same manner and without
interruption until the same are amended or otherwise lawfully altered or
terminated. Effective at the Effective Time, Goldenway Financial hereby
expressly adopts and assumes all obligations of the Company under the Assumed
Contracts.

     Section 4.2 Other Actions.
Such amendments or other actions that are deemed necessary or appropriate by the
Company and Goldenway Financial to effect the Merger, including to facilitate
the assumption by Goldenway Financial of the Assumed Contracts, and any other
amendments or actions that the Company and Goldenway Financial shall deem
advisable, shall be adopted and entered into with respect to the Assumed
Contracts and any other change in control arrangements between the Company and
its executive officers and key employees.

ARTICLE V
CONDITIONS PRECEDENT

     Section 5.1 Conditions to Each
Party’s Obligation to Effect the Merger. The respective obligations of each
party to effect the Merger are subject to the satisfaction or waiver at or prior
to the Effective Time of each of the following conditions:

     (a) Governmental Approval.
The Parties shall have timely obtained from all applicable Governmental
Authority all approvals, waivers and consents, if any, necessary for
consummation of or in connection with this Agreement and the Transactions
contemplated hereby, including such approvals, waivers and consents as may be
required under the NRS and Hong Kong Law.

     (b) No Prohibition. None
of the parties hereto shall be subject to any decree, order or injunction of any
court of competent jurisdiction, whether in the United States, Hong Kong or any
other country, that prohibits the consummation of the Merger.

     (c) Effective Registration
Statement. Goldenway Financial shall have filed a registration statement on
Form F-4 with the Securities and Exchange Commission in connection with the
offer and issuance of the HK Ordinary Shares to be issued pursuant to the
Merger, which registration statement shall have become effective under the
Securities Act of 1933, as amended, and no stop order with respect thereto shall
be in effect.

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     (d) OTC Quotation. The HK
Ordinary Shares to be issued to the stockholders of the Company pursuant to the
Merger shall continue quotation on the over-the-counter electronic bulletin
board maintained by the OTC Markets LLC, or such other bulletin board or trading
market on which the HK Ordinary Shares may be trading at such time.

     (e) Consents and
Authorizations. Other than the filing of the Articles of Merger provided for
in Section 1.2, all material consents and authorizations of, filings or
registrations with, and notices to, any governmental or regulatory authority
required of the Company, Goldenway Financial or any of their respective
subsidiaries to consummate the Merger and the other transactions contemplated
hereby, including, without limitation, any filings required under (a) applicable
United States state securities and “Blue Sky” laws and (b) applicable Hong Kong
securities laws, shall have been obtained or made.

ARTICLE VI
COVENANTS

     Section 6.1 Rule 16b-3
Approval. The Company and Goldenway Financial shall take all such steps as
may reasonably be required to cause the transactions contemplated by Section 3.1
and any other dispositions of the Company’s equity securities (including
derivative securities) or acquisitions of Goldenway Financial’s equity
securities (including derivative securities) in connection with this Agreement
by each individual who (a) is a director or officer of the Company or (b) at the
Effective Time, is or will become a director or officer of Goldenway Financial,
to be exempt under Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended.

     Section 6.2 Further
Assurances. Each party hereto shall use its reasonable best efforts, to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary and reasonably appropriate to consummate and make effective, in
the most expeditious manner practicable, the Merger and the other transactions
provided for herein.

ARTICLE VII
TERMINATION, AMENDMENT AND
WAIVER

     Section 7.1 Termination.
This Agreement may be terminated and the Merger may be abandoned by action of
the Company’s board of directors, at any time prior to the Effective Time,
regardless of prior approval by the Majority Stockholders of the Merger.

     Section 7.2 Effect of
Termination and Abandonment. In the event of termination of this Agreement
and the abandonment of the Merger pursuant to this Article VII, this Agreement
shall become void and of no effect with no liability to any person on the part
of any party hereto (or of any of its representatives or affiliates).

     Section 7.3 Amendment.
This Agreement may be amended by the parties hereto at any time prior to the
Effective Time, regardless of prior approval of the Majority Stockholders, by
action taken by the Company’s board of directors; provided, however, that, no
amendment may be made which by law requires the further approval of the
stockholders of the Company without such further approval. This Agreement may not be amended except
by an instrument in writing signed by the parties hereto.

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     Section 7.4 Waiver. At any
time prior to the Effective Time, any party hereto by its board of directors,
may (to the extent legally permitted and except as otherwise set forth herein)
(i) extend the time for the performance of any of the obligations or other acts
of the other parties hereto, (ii) waive any inaccuracies in the representations
and warranties of the other parties contained herein or in any document
delivered pursuant hereto, and (iii) subject to the requirements of applicable
law, waive compliance by the other parties with any of the agreements or
conditions contained herein. Any such extension or waiver shall only be valid if
set forth in an instrument in writing signed by the party or parties to be bound
thereby. The failure of any party to assert any rights or remedies shall not
constitute a waiver of such rights or remedies.

ARTICLE VIII
GENERAL PROVISIONS

     Section 8.1 Assignment;
Binding Effect. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. 

     Section 8.2 Entire
Agreement. This Agreement (including the attachments hereto), constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof. This
Agreement shall not be assigned by operation of law or otherwise without the
prior written consent of each of the other parties.

     Section 8.3 Severability.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the fullest extent possible.

     Section 8.4 Headings. The
descriptive headings contained in this Agreement are included for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.

     Section 8.5 Counterparts.
This Agreement may be executed and delivered (including by facsimile, “.pdf,” or
other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of
which when executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement.

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     Section 8.6 Governing Law.
This Agreement and all disputes or controversies arising out of or relating to
this Agreement or the transactions contemplated hereby shall be governed by, and
construed in accordance with, the internal laws of the State of Nevada, without
regard to the laws of any other jurisdiction that might be applied because of
the conflicts of laws principles of the State of Nevada.

     Section 8.7 No Third Party
Beneficiaries. Notwithstanding anything contained in this Agreement to the
contrary, except for the provisions of Article IV, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement. The provisions
of Article IV may be enforced only by the specifically intended beneficiaries
thereof.

[Remainder of Page Left Blank Intentionally]

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     IN WITNESS WHEREOF, Goldenway
Financial and the Company have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly
authorized.

	 	GOLDENWAY, INC. 
	 	 	  
	 	 	  
	 	By:	/s/
      Ricky Wai Lam Lai 
	 	Name: 	Ricky Wai Lam Lai 
	 	Title: 	Chief Executive Officer 
	 	 	  
	 	 	  
	 	 	  
		GOLDENWAY FINANCIAL HOLDINGS LIMITED
    
	 	 	  
	 	 	  
	 	By:	/s/
      Ricky Wai Lam Lai 
	 	Name:  	Ricky Wai Lam Lai 
	 	Title:	Director 
	 	 	  
	 	 	  
	 	By:	/s/
      Yue Yuen Chan 
	 	Name:	Yue Yuen Chan 
	 	Title: 	Director 






EXHIBIT A

Assumed Contracts

All contracts of Goldenway, Inc. that are unexpired as of the
Effective Time.