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Exhibit 10.3  


 
 

AGREEMENT AND PLAN OF MIGRATORY MERGER    
    
    BY AND AMONG    
    
    SHAANXI NEW TAOHUAYUAN CULTURE TOURISM CO., LTD.    
    
    AND    
    
    NEW TAOHUAYUAN CULTURE TOURISM CO.,
 LTD.    
    







TABLE OF CONTENTS  



	

ARTICLE I—The Migratory Merger	
 	

1
	 	1.1	 	Merger	 	1
	

ARTICLE II—Terms of the Merger	
 	

1
	 	2.1	 	Terms of Merger; Effective Time	 	1
	 	2.2	 	Exemption from Registration	 	2
	

ARTICLE III—Representations and Warranties of New Tao	
 	

2
	 	3.1	 	Organization	 	2
	 	3.2	 	Capital	 	2
	 	3.3	 	Directors and Officers	 	2
	 	3.4	 	Authority	 	3
	

ARTICLE IV—Representations and Warranties of Shaanxi	
 	

3
	 	4.1	 	Organization	 	3
	 	4.2	 	Capital	 	3
	 	4.3	 	Directors and Officers	 	3
	 	4.4	 	Authority	 	3
	

ARTICLE V—Closing	
 	

3
	 	5.1	 	Closing	 	3
	

ARTICLE VI—Termination	
 	

3
	 	6.1	 	Termination by Mutual Consent	 	3
	

ARTICLE VII—Miscellaneous	
 	

4
	 	7.1	 	Captions and Headings	 	4
	 	7.2	 	No Oral Change	 	4
	 	7.3	 	Non-Waiver	 	4
	 	7.4	 	Time of Essence	 	4
	 	7.5	 	Entire Agreement	 	4
	 	7.6	 	Choice of Law	 	4
	 	7.7	 	Counterparts	 	4
	 	7.8	 	Notices	 	4
	 	7.9	 	Binding Effect	 	4
	 	7.10	 	Mutual Cooperation	 	4
	 	7.11	 	Announcements	 	4
	 	7.12	 	Exhibits	 	5
	 	7.13	 	Legal Counsel	 	5
	 	7.14	 	Facsimile Signatures	 	5










AGREEMENT AND PLAN OF MERGER  


        AGREEMENT AND PLAN OF MERGER ("Agreement") made this    day of November, 2004, by and between Shaanxi New Taohuayuan Culture
Tourism Co., Ltd., a People's Republic of China corporation ("Shaanxi"), and New Taohuayuan Culture Tourism
Co., Ltd., a Nevada corporation ("New Tao"). 


EXPLANATORY STATEMENT  


        A.    Shaanxi desires to acquire all of the issued and outstanding common stock of New Tao from New Tao's security holders in
exchange for newly issued unregistered shares of common stock of Shaanxi; and 



        B.    New Tao desires to redomicile its corporate existence from the People's Republic of China to Nevada, United States of
America. 


        C.    In furtherance of the foregoing, New Tao and Shaanxi are desirous of effecting a merger, all upon the terms and conditions
set forth herein. 


        NOW THEREFORE, in consideration of the foregoing Explanatory Statement, which is made a substantive part of this Agreement and the mutual
promises, covenants and representations contained herein, the parties agree as follows: 


ARTICLE I  


The Migratory Merger  


        1.1    Merger.    Subject to the terms and conditions of this Agreement, Shaanxi shall be merged with and into New Tao
in a transaction intended to qualify as a tax-free reorganization pursuant to Sections 368(a)(1)(A) and (a)(2)(E) of the Internal Revenue Code of 1986, as amended (the "Code"). 


ARTICLE II  


Terms of the Merger  


        2.1    Terms of Merger; Effective Time.    The terms of the merger (the "Merger") are as follows: 



        (a)   Shaanxi
shall be merged with and into New Tao in accordance with the statutory provisions of the Nevada Revised Statutes ("NRS"). 


        (b)   New
Tao shall be the surviving corporation (the "Surviving Corporation"), and the corporate identity, existence, purposes, powers, franchises, rights, and immunities of
New Tao shall continue unaffected and unimpaired by the Merger. The corporate identity, existence, purposes, powers, franchises, rights, and immunities of Shaanxi shall be merged into the Surviving
Corporation, and the Surviving Corporation shall be fully vested therewith. 



        (c)   Immediately
after the Closing (as hereinafter defined), the Merger shall be effected by filing with the Secretary of State of Nevada the Articles of Merger (the
"Articles of Merger") in accordance with the relevant provisions of the NRS. The time at which the Articles of Merger are filed with the Secretary of State of Nevada shall be the "Effective Time" of
the Merger. 


        (d)   Except
insofar as specifically otherwise provided by law, Shaanxi shall cease to exist at the Effective Time, whereupon the separate existence of New Tao and Shaanxi
shall become a single corporation. 


        (e)   The
Articles of Incorporation and Bylaws of New Tao shall be the certificate of incorporation and bylaws of the Surviving Corporation. 


        (f)    At
the Effective Time, without any action by the holder thereof, all 100,000,000 issued and outstanding shares of Shaanxi's common stock (collectively, "Shaanxi Common
Stock") shall be deemed cancelled and converted on a pro-rata basis, into the right to receive 17,027,328 shares 








 




of
common stock, $.001 par value, of New Tao (the "New Tao Common Stock") as of the Closing Date (the "Merger Consideration"). The Merger Consideration shall be prorated among the Shaanxi stockholders
in accordance with their fractional ownership of Shaanxi. 


        (g)   At
the Effective Time, New Tao shall issue certificates evidencing such number of shares of New Tao Common Stock issuable to holders of Shaanxi Common Stock in the
Merger pursuant to Section 2.1(f). 


        (h)   Each
option to purchase shares of New Tao Common Stock (collectively, the "New Tao Options") that is outstanding immediately prior to the Effective Time, without regard
to whether such option is then exercisable, shall, by virtue of the Merger and without any further action on the part of the holder thereof, be assumed by New Tao and converted into an option (a
"Substitute Option") to purchase that number of shares of New Tao Common Stock equal to the number of shares of Shaanxi Common Stock subject to such Shaanxi Option immediately prior to the Effective
Time in accordance with Schedule 2.1, at an exercise price per share of Shaanxi Common Stock equal to the exercise price per share of such New Tao Option immediately prior to the Effective
Time. The terms and conditions of each Substitute Option, including any acceleration of vesting and/or exercisability thereof, shall otherwise be the same as the related Shaanxi Option. 



        (i)    If
any certificate representing Shaanxi Common Stock shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such
certificate to be lost, stolen or destroyed and, if required by New Tao, the posting by such person of a bond, in such reasonable amount as New Tao may direct, as indemnity against any claim that may
be made against it with respect to such certificate, New Tao will issue in exchange for such lost, stolen or destroyed certificate the Merger Consideration and any dividends or other distributions to
which the holders thereof are entitled pursuant to this Agreement. 




        2.2    Exemption from Registration.    The parties hereto intend that all Shaanxi common stock to be issued to the
stockholders of New Tao (collectively, the "New Tao Stockholders") shall be exempt from the registration requirements of the Securities Act of 1933, as amended (the "Act"), pursuant to
Section 4(2) and/or Rule 506 of the Act and the rules and regulations promulgated thereunder. 


ARTICLE III  


Representations and Warranties of New Tao  


        New Tao hereby represents and warrants to Shaanxi that: 



        3.1    Organization.    New Tao is a corporation duly organized, validly existing and in good standing under the laws
of Nevada, has all necessary corporate powers to own its properties and to carry on its business as now owned and operated by it, and is duly qualified to do business and is in good standing in each
of the states where required. 


        3.2    Capital.    The authorized capital stock of New Tao consists of 50,000,000 authorized shares of $.001 par value
common stock and 10,000,000 authorized shares of $.001 par value preferred stock. There are currently no shares of New Tao Common Stock outstanding and no shares of preferred stock outstanding. There
are no other outstanding subscriptions, options, rights, warrants, debentures, instruments, convertible securities or other agreements or commitments obligating New Tao to issue or to transfer from
treasury any additional shares of its capital stock of any class. 


        3.3    Directors and Officers.    The names and titles of the directors and officers of New Tao as of the date of this
Agreement are as follows: Chen Jingmin-Board Chairman, Cai Danmei-Chief Executive Officer and Board Vice Chairman, Liu Bo-Director and Secretary, Hu Yangxiong-Director, Zhao
Jianwen-Director and Wang Changzhu-Director. 


2







 



        3.4    Authority.    The Board of Directors and stockholders of New Tao have authorized the execution of this
Agreement and the consummation of the transactions contemplated herein, and New Tao has full power and authority to execute, deliver and perform this Agreement, and this Agreement is a legal, valid
and binding obligation of New Tao and is enforceable in accordance with its terms and conditions. 


ARTICLE IV  


Representations and Warranties of Shaanxi  


        Shaanxi represents and warrants to New Tao that: 


        4.1    Organization.    Shaanxi is a corporation duly organized, validly existing and in good standing under the laws
of the People's Republic of China. Shaanxi has all necessary corporate powers to carry on its business, and is duly qualified to do business and is in good standing in each jurisdiction as required. 



        4.2    Capital.    The authorized capital stock of Shaanxi consists of 100,000,000 shares of Shaanxi Common Stock of
which 100,000,000 shares of Shaanxi Common Stock are issued and outstanding and no shares of preferred stock are outstanding. All of Shaanxi's outstanding securities are duly and validly issued, fully
paid and nonassessable. There are (i) no shares of Shaanxi Common Stock held in treasury and (ii) no outstanding subscriptions, options, rights, warrants, debentures, instruments,
convertible securities or other agreements or commitments obligating Shaanxi to issue or to transfer from treasury any shares of its capital stock of any class except shares issuable under this
Agreement. 


        4.3    Directors and Officers.    The names and titles of the officers and directors of Shaanxi as of the date of this
Agreement are as follows: Chen Jingmin-Board Chairman, Cai Danmei-Chief Executive Officer and Board Vice Chairman, Liu Bo-Director and Secretary, Hu Yangxiong-Director, Zhao
Jianwen-Director and Wang Changzhu-Director. 


        4.4    Authority.    Shaanxi and the stockholders of Shaanxi have authorized the execution of this Agreement and the
transactions contemplated herein, Shaanxi has full power and authority to execute, deliver and perform this Agreement, and this Agreement is the legal, valid and binding obligation of Shaanxi and is
enforceable in accordance with its terms and conditions. 


ARTICLE V  


Closing  


        5.1    Closing.    The Closing of this Agreement shall be held at the offices of Shaanxi's law firm, the Law Office of
Gary A. Agron, 5445 DTC Parkway, Suite 520, Greenwood Village, Colorado 80111, at any mutually agreeable time on November    , 2004 (the "Closing Date"), unless extended by mutual
agreement. At the Closing: 



        (a)   New
Tao shall deliver to the Shaanxi Stockholders the shares of New Tao set forth in Section 2.1(f) above. 


        (b)   Shaanxi
shall deliver to New Tao such documents as are reasonably requested by New Tao's counsel for implementation of this Agreement and consummation of the transaction
contemplated hereby. 



ARTICLE VI  


Termination  


        6.1    Termination by Mutual Consent.    This Agreement may be terminated at any time prior to Closing by the mutual
consent of Shaanxi and New Tao. 


3







 
ARTICLE VII  


Miscellaneous  


        7.1    Captions and Headings.    The article and paragraph headings throughout this Agreement are for convenience and
reference only and shall not define, limit or add to the meaning of any provision of this Agreement. 


        7.2    No Oral Change.    This Agreement and any provision hereof may not be waived, changed, modified or discharged
orally, but only by an agreement in writing signed by the party against whom enforcement of any such waiver, change, modification or discharge is sought. 


        7.3    Non-Waiver.    The failure of any party to insist in any one or more cases upon the performance of
any of the provisions, covenants or conditions of this Agreement or to exercise any option herein contained shall not be construed as a waiver or relinquishment for the future of any such provisions,
covenants or conditions. No waiver by any party of one breach by another party shall be construed as a waiver with respect to any other subsequent breach. 


        7.4    Time of Essence.    Time is of the essence of this Agreement and of each and every provision hereof. 


        7.5    Entire Agreement.    This Agreement contains the entire Agreement and understanding between the parties hereto
and supersedes all prior agreements and understandings. 


        7.6    Choice of Law.    This Agreement and its application shall be governed by the laws of the state of Nevada. 


        7.7    Counterparts.    This Agreement may be executed simultaneously in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument. 



        7.8    Notices.    All notices, requests, demands and other communications under this Agreement shall be in writing
and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows: 



	Shaanxi:	 	Shaanxi New Taohuayuan Culture Tourism Co., Ltd.

1# Dongfeng Road

Xi'an Weiyang Tourism Development District

Xi'an, China
	
New Tao:	
 	

New Taohuayuan Culture Tourism Co., Ltd.

1# Dongfeng Road

Xi'an Weiyang Tourism Development District

Xi'an, China






        7.9    Binding Effect.    This Agreement shall inure to and be binding upon the heirs, executors, personal
representatives, successors and assigns of each of the parties to this Agreement. 


        7.10    Mutual Cooperation.    The parties hereto shall cooperate with each other to achieve the purpose of this
Agreement and shall execute such other and further documents and take such other and further actions as may be necessary or convenient to effect the transaction described herein. 



        7.11    Announcements.    The parties will consult and cooperate with each other as to the timing and content of any
public announcements regarding this Agreement. 


4







 



        7.12    Exhibits.    As of the execution hereof, the parties have provided each other with the Exhibits described
herein. Any material changes to the Exhibits shall be immediately disclosed to the other party. 



        7.13    Legal Counsel.    Each of the parties has been represented by its own legal counsel. 


        7.14    Facsimile Signatures.    A facsimile signature shall be deemed an original signature for all purposes. 


        In
witness whereof, the parties have executed this Agreement on the date indicated above. 



	SHAANXI NEW TAOHUAYUAN

    CULTURE TOURISM CO., LTD.	 	NEW TAOHUAYUAN CULTURE

    TOURISM CO., LTD.
	 	 	 	 	 
	 	 	 	 	 
	By:	 	 	By:	 
	 	
 Cai Danmei, Chief Executive Officer	 	 	
 Cai Danmei, Chief Executive Officer




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AGREEMENT AND PLAN OF MIGRATORY MERGER BY AND AMONG SHAANXI NEW TAOHUAYUAN CULTURE TOURISM CO., LTD. AND NEW TAOHUAYUAN CULTURE TOURISM CO., LTD.