SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of
the Securities Exchange Act of 1934
Check the appropriate box:
|_| Preliminary Information Statement
|_| Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
|X| Definitive Information Statement
TOP GROUP HOLDINGS, INC.
(Name of Registrant as Specified In Its Charter) Payment of Filing Fee (Check
the appropriate box):
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|_| Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
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TOP GROUP HOLDINGS, INC.
1398 MONTEREY PASS ROAD
MONTEREY PARK, CA 91754
INFORMATION STATEMENT
MARCH 15, 2005
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
This Information Statement, as amended, (the "Information Statement")
is being delivered by TOP Group Holdings, Inc. (the "Company"), and relates to
(i) a restatement of the Company's Certificate of Incorporation to, among other
things, reflect prior amendments, (ii) the election of persons to the Board of
Directors, and (iii) the re-appointment of the Company's independent public
accountant.
This Information Statement is being furnished to the Company's stockholders solely to provide you with certain information concerning the actions approved by the Board of Directors and the consenting stockholder in accordance with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the regulations promulgated thereunder, including particularly Regulation 14C.
WE ARE NOT ASKING YOU FOR A PROXY AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
ACTIONS BY BOARD OF DIRECTORS
AND
CONSENTING STOCKHOLDERS
GENERAL
The Company will pay all costs associated with the distribution of this Information Statement, including the costs of printing and mailing. The Company will reimburse brokerage firms and other custodians, nominees and fiduciaries for reasonable expenses incurred by them in sending this Information Statement to the beneficial owners of the Company's common stock.
The Company will only deliver one Information Statement to multiple security holders sharing an address unless we have received contrary instructions from one or more of the security holders. The Company will promptly deliver a separate copy of this Information Statement and future stockholder communication documents to any security holder at a shared address to which a single copy of this Information Statement was delivered, or deliver a single copy of this Information Statement and future stockholder communication documents to any security holder or holders sharing an address to which multiple copies are now delivered, upon written or oral request to the Company at the address listed above.
INFORMATION ON CONSENTING STOCKHOLDER
None.
INTEREST OF CERTAIN PERSONS IN OR OPPOSITION TO MATTERS TO BE ACTED ON
None.
PROPOSALS BY SECURITY HOLDERS
None.
DISSENTERS' RIGHT OF APPRAISAL
There are no appraisal rights regarding any matter to be acted upon.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of January 21, 2005 as to each person who is known to the Company to be the beneficial owner of more than 5% of the Company's outstanding common stock and as to the security and percentage ownership of each executive officer and director of the Company and all officers and directors of the Company as a group. Except where specifically noted, each person listed in the table has sole voting and investment power with respect to the shares listed.
NAME SHARES BENEFICIALLY OWNED PERCENTAGE BENEFICIALLY OWNED ---- ------------------------- ----------------------------- TOP Group Corporation * 4,400,000 88.0% |
* The Company's Chairman, Ru-hua Song, is President and a director, and owns 95% of the capital stock, of this entity.
NOTICE TO STOCKHOLDERS OF ACTIONS APPROVED BY CONSENTING STOCKHOLDERS
The following actions were taken based upon the unanimous
recommendation of the Company's Board of Directors and the written consent of
the consenting stockholder:
ACTION 1
ELECTION OF INDEPENDENT DIRECTOR
On January 21, 2005, pursuant to a written consent in lieu of a meeting of the Company's stockholders, the following persons were duly elected to the Board of Directors, in replacement of the entire prior Board:
RU-HUA SONG (age 42) - Mr. Song has been elected to continue to serve
as a director and the Chairman of the Board of Directors, and also to serve as
the President and Principal Executive Officer, of the Company. Recently, Mr.
Song has become the President of two California-based China import companies:
Sooyoo Inc., located in Los Angeles, and Soyodo LLC, located in San Francisco.
From 1992 until 2004, Mr. Song was the co-founder and Chairman of TOP Group, a
Chinese conglomerate engaged in high-tech software, hardware, education and
related businesses. After graduating from the University of Electronic Science
and Technology of China in 1983, Mr. Song accepted a position teaching physics
there, and published more than one hundred papers. Mr. Song has received many
honors, including being named one of the "Ten Men of the Moment" in China's IT
industry and one of the "Most Prominent Young People in China's Software
Industry" in 2000, and one of China's 100 Richest Business People by Forbes in
2000, 2001, and 2002.
YE FANG (age 46) - Mr. Fang will serve as an independent member of the Board of Directors. Since 2000, Mr. Fang has been Vice President of Healthcare Industrial Corp. in Chengdu, China. From 1983 to 2000, he was Deputy Director of Nanjing Fiberglass Research & Design Institute in Nanjing, China. Mr. Fang received his Bachelor of Science in 1983 from Jilin University in China.
TAO ZHOU (age 33) - Mr. Zhou will serve as an independent member of the Board of Directors. Since 2001, Mr. Zhou has served as an Assistant President of Healthcare Industrial Corp in Chengdu, China. From 1983 to 2000, he served as Senior Vice President of TOP Group's operations in Chengdu. Mr. Zhou received a Bachelor of Engineering in 1993 from the University of Electronic Science & Technology of China.
None of the above directors presently receives any compensation for his respective services rendered to the Company, nor has he received such compensation in the past. Each of the above directors has agreed to act without compensation until authorized by the Board of Directors. As of the date of filing this report, none of the above directors is accruing any compensation pursuant to any agreement with the Company.
No retirement, pension, profit sharing, stock option or insurance programs or other similar programs have been adopted by the Company for the benefit of any of the above directors.
ACTION 2
RESTATEMENT OF THE CERTIFICATE OF INCORPORATION
On January 21, 2005, the Board issued a Resolution adopting and approving a Restated Certificate of Incorporation of the Company, which is set forth as an Exhibit hereto, to incorporate, in one document, all prior amendments, and to delete Article Eleventh of the Certificate of Incorporation (which prohibited, prior to January 15, 2005, certain "reverse split transactions"), because it is no longer applicable.
On January 21, 2005, the consenting stockholder issued a written consent in lieu of a meeting of the Company's stockholders whereby the Amended and Restated Certificate of Incorporation was approved.
The Amended and Restated Certificate of Incorporation will become effective upon its filing with the Delaware Secretary of State. Under Federal securities laws, the Company may not file the Restated Certificate of Incorporation until at least 20 days after the mailing of this Information Statement.
ACTION 3
RE-APPOINTMENT OF INDEPENDENT PUBLIC ACCOUNTANT
On January 21, 2005, the Board issued a Resolution selecting Michael Johnson & Co., LLC of Denver, Colorado to continue as the independent public accountant of the Company for fiscal year 2005. On January 21, 2005, the consenting stockholders issued a written consent in lieu of a meeting of the Company's stockholders whereby such selection was ratified and approved.
Joseph J. Mao, CPA will continue to assist the Company in the preparation of its financial statements.
By order of the Board of Directors:
By: /s/ Ru-hua Song
-------------------------------
Name: Ru-hua Song
Its: Chairman
March 15, 2005
|
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TOP GROUP HOLDINGS, INC.
It is hereby certified that:
1. The present name of the corporation (hereinafter called the "Corporation") is TOP Group Holdings, Inc. The date of filing the original certificate of incorporation of the Corporation with the Secretary of State of the State of Delaware is February 11, 2003.
2. The certificate of incorporation of the Corporation, as previously amended, is hereby amended by striking out the previous Articles in their entirety and by substituting in lieu thereof new Articles which are set forth in the Amended and Restated Certificate of Incorporation hereinafter provided for.
3. The provisions of the certificate of incorporation of the Corporation as heretofore amended are hereby restated and integrated into the single instrument which is hereinafter set forth, and which is entitled Amended and Restated Certificate of Incorporation of Top Group Holdings, Inc. without any further amendments and without any discrepancy between the provisions of the certificate of incorporation as heretofore amended and the provisions of the said single instrument hereinafter set forth.
4. The amendments to and restatement of the certificate of incorporation herein certified have been duly adopted by the stockholders in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware.
5. This Amended and Restated Certificate of Incorporation was duly adopted by the Board of Directors of the Corporation in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware.
THE CERTIFICATE OF INCORPORATION OF THE CORPORATION, AS AMENDED AND RESTATED HEREIN, SHALL AT THE EFFECTIVE TIME OF THIS AMENDED AND RESTATED CERTIFICATE OF INCORPORATION, READ AS FOLLOWS:
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TOP GROUP HOLDINGS, INC.
FIRST: The name of the corporation is TOP GROUP HOLDINGS, INC. (the "Corporation").
SECOND: The address of the Corporation's registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808-1297, County of New Castle. The name of its registered agent at such address is the Corporation Service Company.
THIRD: The purposes of the Corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law.
FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is 100,000,000 shares of common stock, $.0001 par value per share ("Common Stock").
FIFTH: The Corporation is to have perpetual existence.
SIXTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition and not in limitation of the powers of the Corporation and of its directors and of its stockholders or any class thereof, as the case may be, conferred by the State of Delaware, it is further provided that:
(A) The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors that shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning, to wit, the total number of directors, which the Corporation would have if there were no vacancies. No election of directors need be by written ballot.
(B) After the original or other Bylaws of the Corporation have been adopted, amended or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law, and, after the Corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the Corporation may be exercised by the Board of Directors of the Corporation.
(C) The books of the Corporation may be kept at such place within or without the State of Delaware as the Bylaws of the Corporation may provide or as may be designated from time to time by the Board of Directors of the Corporation.
SEVENTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law, as the same may be amended and
supplemented from time to time, indemnify and advance expenses to (i) its
directors and officers, and (ii) any person who at the request of the
Corporation is or was serving as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, from
and against any and all of the expenses, liabilities, or other matters referred
to in or covered by said section as amended or supplemented (or any successor);
provided, however, that except with respect to proceedings to enforce rights to
indemnification, the Bylaws of the Corporation may provide that the Corporation
shall indemnify any director, officer or such person in connection with a
proceeding (or part thereof) initiated by such director, officer or such person
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The Corporation, by action of its Board of
Directors, may provide indemnification or advance expenses to employees and
agents of the Corporation or other persons only on such terms and conditions and
to the extent determined by the Board of Directors in its sole and absolute
discretion. The indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in their official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
EIGHTH: No director of the Corporation shall be liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision does not eliminate or limit the liability of the director (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. For purposes of the prior sentence, the term "damages" shall, to the extent permitted by law, include without limitation, any judgment, fine, amount paid in settlement, penalty, punitive damages, excise or other tax assessed with respect to an employee benefit plan, or expense of any nature (including, without limitation, reasonable counsel fees and disbursements). Each person who serves as a director of the Corporation while this Article NINTH is in effect shall be deemed to be doing so in reliance on the provisions of this Article NINTH, and neither the amendment or repeal of this Article NINTH, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article NINTH, shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for, arising out of, based upon, or in connection with any acts or omissions of such director occurring prior to such amendment, repeal, or adoption of an inconsistent provision. The provisions of this Article NINTH are cumulative and shall be in addition to and independent of any and all other limitations on or eliminations of the liabilities of directors of the Corporation, as such, whether such limitations or eliminations arise under or are created by any law, rule, regulation, bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.
NINTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of the General Corporation Law or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of the General Corporation Law order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be so summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
TENTH: From time to time any of the provisions of this Certificate of Incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article.
This Amended and Restated Certificate of Incorporation shall be effective as of the 11th day of April, 2005.
IN WITNESS WHEREOF, the undersigned hereby declares and certifies that the facts herein stated are true, and accordingly have hereunto set my hand this 15th day of March 2005.
/s/ RU-HUA SONG --------------------------------- Ru-Hua Song, President |