EXCHANGE AGREEMENT
Between
Eternal Technologies Group, Inc.
and
Xxxx Xxxx Aquatic Product, Inc.
Dated: January 1, 2007
TABLE OF CONTENTS
ARTICLE I REPRESENTATIONS, COVENANTS, AND WARRANTIES OF XXXX XXXX AQUATIC PRODUCT, INC.
1.01 Organization.......................................................... 2
1.02 Capitalization........................................................ 2
1.03 Subsidiaries and Predecessor Corporations............................. 2
1.04 Financial Statements.................................................. 2
1.05 Information........................................................... 2
1.06 Options and Warrants.................................................. 2
1.07 Title and Related Matters............................................. 2
1.08 Litigation and Proceedings............................................ 3
1.09 Contracts............................................................. 3
1.10 Material Contract Defaults............................................ 3
1.11 No Conflict With Other Instruments.................................... 3
1.12 Governmental Authorizations........................................... 4
1.13 Compliance With Laws and Regulations.................................. 4
1.14 Insurance............................................................. 4
1.15 Approval of Agreement................................................. 4
1.16 Material Transactions or Affiliations................................. 4
1.17 Labor Relations....................................................... 4
1.18 Xxxx Xxxx Schedules................................................... 4
1.19 Valid Obligation...................................................... 5
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ETERNAL TECHNOLOGIES GROUP, INC.
2.01 Organization.......................................................... 5
2.02 Capitalization........................................................ 6
2.03 Subsidiaries and Predecessor Corporations ............................ 6
2.04 Securities Filings; Financial Statements.............................. 6
2.05 Options and Warrants.................................................. 6
2.06 Litigation and Proceedings............................................ 6
2.07 Material Contract Defaults............................................ 6
2.08 No Conflict With Other Instruments.................................... 6
2.09 Governmental Authorizations........................................... 6
2.10 Compliance With Laws and Regulations.................................. 7
2.11 Approval of Agreement................................................. 7
2.12 Valid Obligation...................................................... 7
ARTICLE III PLAN OF EXCHANGE
3.01 The Exchange.......................................................... 7
3.02 Closing............................................................... 7
3.03 Closing Events........................................................ 8
3.04 Termination........................................................... 8
ARTICLE IV SPECIAL COVENANTS
4.01 Access to Properties and Records...................................... 9
4.02 Delivery of Books and Records......................................... 9
4.03 Third Party Consents and Certificates................................. 9
4.04 Consent of the Xxxx Xxxx Shareholders................................. 10
4.05 Actions Prior to Closing.............................................. 10
4.06 Sales Under Rule 144 or 145, If Applicable............................ 10
4.07 Indemnification....................................................... 11
4.08 Retention of Shares................................................... 11
ARTICLE V CONDITIONS PRECEDENT TO OBLIGATIONS OF ETERNAL TECHNOLOGIES GROUP, INC.
5.01 Accuracy of Representations and Performance of Covenants.............. 11
5.02 Officer's Certificates................................................ 11
5.03 No Material Adverse Change............................................ 12
5.04 Good Standing......................................................... 12
5.05 Approval by Xxxx Xxxx Shareholders.................................... 12
5.06 No Governmental Prohibitions.......................................... 12
5.07 Consents.............................................................. 12
5.08 Other Items........................................................... 12
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXX XXXX BIOMEDICAL ENGINEERING CO
INTERNATIONAL LTD. AND THE XXXX XXXX BIOMEDICAL ENGINEERING CO INTERNATIONAL LTD.
SHAREHOLDERS
6.01 Accuracy of Representations and Performance of Covenants.............. 12
6.02 Officer's Certificate................................................. 12
6.03 No Material Adverse Change............................................ 13
6.04 Good Standing......................................................... 13
6.05 No Governmental Prohibition........................................... 13
6.06 Consents.............................................................. 13
6.07 Other Items........................................................... 13
ARTICLE VII MISCELLANEOUS
7.01 Brokers............................................................... 13
7.02 Governing Law......................................................... 13
7.03 Notices............................................................... 13
7.04 Attorney's Fees....................................................... 14
7.05 Confidentiality....................................................... 14
7.06 Public Announcements and Filings...................................... 14
7.07 Schedules; Knowledge.................................................. 14
7.08 Third Party Beneficiaries............................................. 14
7.09 Expenses.............................................................. 14
7.10 Entire Agreement...................................................... 15
7.11 Survival; Termination................................................. 15
7.12 Counterparts.......................................................... 15
7.13 Amendment or Waiver................................................... 15
7.14 Best Effortss......................................................... 15
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as this "Agreement") is entered
into as of this ___ day --- of September by and between Eternal Technologies
Group, Inc. a Nevada corporation (hereinafter referred to as "Eternal")and Xxxx
Xxxx Biomedical Engineering Co. International, Ltd., a People's Republic of
China ("PRC") corporation (hereinafter referred to as "Xxxx Xxxx"), upon the
following premises:
Premises
WHEREAS, Eternal is a publicly held corporation organized under the
laws of the State of Nevada and engaged in animal husbandry and meat processing;
and the manufacturing and marketing of equipment for the detection of breast
cancer;
WHEREAS, Xxxx Xxxx is a privately held corporation organized under the
laws of the PRC and engaged in turtle farming and related agricultural
activites;
WHEREAS, management of the constituent corporations entered into a
letter of intent (the "Letter of Intent") dated December 20, 2006 pursuant to
which Eternal agreed to acquire 22% of the issued and outstanding securities of
Xxxx Xxxx in exchange for the issuance of certain shares of Eternal and the
payment of cash (the "Exchange"); and
WHEREAS, Eternal and Xxxx Xxxx desire to set forth the specific terms
of the Exchange.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF XXXX XXXX
As an inducement to, and to obtain the reliance of Eternal, except as
set forth on the Xxxx Xxxx Schedules (as hereinafter defined), Xxxx Xxxx
represents and warrants as follows:
Section 1.01 Organization. Xxxx Xxxx is a corporation duly organized,
validly existing, and in good standing under the laws of the PRC and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, except where failure to be so qualified
would not have a material adverse effect on its business. Included in the Xxxx
Xxxx Schedules are complete and correct copies of the Memorandum and articles of
association of Xxxx Xxxx as in effect on the date hereof. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of Xxxx Xxxx'x Memorandum
and articles of association. Xxxx Xxxx has taken all actions required by law,
its articles of incorporation, or otherwise to authorize the execution and
delivery of this Agreement. Xxxx Xxxx has full power, authority, and legal right
and has taken all action required by law, its articles of incorporation, and
otherwise to consummate the transactions herein contemplated.
Section 1.02 Capitalization. The authorized capitalization of Xxxx Xxxx
is 15,000,000 RMB. All issued and outstanding shares are legally issued, fully
paid, and non-assessable and not issued in violation of the preemptive or other
rights of any person.
Section 1.03 Subsidiaries and Predecessor Corporations. Xxxx Xxxx does
not have any predecessor corporation(s) or any subsidiaries except as disclosed
on Schedule 1.03, and does not own, beneficially or of record, any shares of any
other corporation, except as disclosed in Schedule 1.03. For purposes
hereinafter, the term "Xxxx Xxxx" also includes those subsidiaries, if any, set
forth on Schedule 1.03.
Section 1.04 Financial Statements.
(a) Included in the Xxxx Xxxx Schedules are (i) the unaudited
balance sheets and the related statements of operations of Xxxx Xxxx as
of and for the period ended December 31, 2006 (which can be furnished
by January 31, 2007)
(b) All such financial statements have been prepared in
accordance with generally accepted accounting principles. The Xxxx Xxxx
balance sheet present a true and fair view as of the date of such
balance sheet of the financial condition of Xxxx Xxxx. Xxxx Xxxx did
not have, as of the date of such balance sheets, except as and to the
extent reflected or reserved against therein, any liabilities or
obligations (absolute or contingent) which should be reflected in the
balance sheets or the notes thereto, prepared in accordance with
generally accepted accounting principles, and all assets reflected
therein are properly reported and present fairly the value of the
assets of Xxxx Xxxx in accordance with generally accepted accounting
principles.
(c) Xxxx Xxxx has no liabilities with respect to the payment
of any federal, province, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable.
(d) Xxxx Xxxx has filed all provincial, federal or local
income and/or franchise tax returns required to be filed by it from
inception to the date hereof. Each of such income tax returns reflects
the taxes due for the period covered thereby, except for amounts which,
in the aggregate, are immaterial.
(e) The books and records, financial and otherwise, of Xxxx
Xxxx are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(f) All of Xxxx Xxxx'x assets are reflected on its financial
statements, and, except as set forth in the Xxxx Xxxx Schedules or the
financial statements of Xxxx Xxxx or the notes thereto, Xxxx Xxxx has
no material liabilities, direct or indirect, matured or unmatured,
contingent or otherwise.
Section 1.05 Information. The information concerning Xxxx Xxxx set
forth in this Agreement and in the Xxxx Xxxx Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading. In
addition, Xxxx Xxxx has fully disclosed in writing to Eternal (through this
Agreement or the Xxxx Xxxx Schedules) all information relating to matters
involving Xxxx Xxxx or its assets or its present or past operations or
activities which (i) indicated or may indicate, in the aggregate, the existence
of a greater than $300,000 RMB of diminution in value, (ii) have led or may lead
to a competitive disadvantage on the part of Xxxx Xxxx or (iii) either alone or
in aggregation with other information covered by this Section, otherwise have
led or may lead to a material adverse effect on the transactions contemplated
herein or on Xxxx Xxxx, its assets, or its operations or activities as presently
conducted or as contemplated to be conducted after the Closing Date, including,
but not limited to, information relating to governmental, employee,
environmental, litigation and securities matters and transactions with
affiliates.
Section 1.06 Options or Warrants. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and unissued
common stock,
Section 1.07 Title and Related Matters. Xxxx Xxxx has good and
marketable title to all of its properties, inventory, interests in properties,
and assets, real and personal, which are reflected in the December 31, 2006
balance sheet (except properties, inventory, interests in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business) free and clear of all liens, pledges, charges, or encumbrances except
(a) statutory liens or claims not yet delinquent; (b) such imperfections of
title and easements as do not and will not materially detract from or interfere
with the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in the Xxxx Xxxx Schedules. Except as set forth
in the Xxxx Xxxx Schedules, Xxxx Xxxx owns, free and clear of any liens, claims,
encumbrances, royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all products it is currently manufacturing, including
the underlying technology and data, and all procedures, techniques, marketing
plans, business plans, methods of management, or other information utilized in
connection with Xxxx Xxxx'x business. Except as set forth in the Xxxx Xxxx
Schedules, no third party has any right to, and Xxxx Xxxx has not received any
notice of infringement of or conflict with asserted rights of others with
respect to any product, technology, data, trade secrets, know-how, propriety
techniques, trademarks, service marks, trade names, or copyrights which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse effect on the business,
operations, financial condition, income, or business prospects of Xxxx Xxxx or
any material portion of its properties, assets, or rights.
Section 1.08 Litigation and Proceedings. Except as set forth in the
Xxxx Xxxx Schedules, there are no actions, suits, proceedings, or investigations
pending or, to the knowledge of Xxxx Xxxx after reasonable investigation,
threatened by or against Xxxx Xxxx or affecting Xxxx Xxxx or its properties, at
law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind. Xxxx
Xxxx does not have any knowledge of any material default on its part with
respect to any judgment, order, injunction, decree, award, rule, or regulation
of any court, arbitrator, or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section 1.09 Contracts.
(a) Except as included or described in the Xxxx Xxxx
Schedules, there are no "material" contracts, agreements, franchises,
license agreements, debt instruments or other commitments to which Xxxx
Xxxx is a party or by which it or any of its assets, products,
technology, or properties are bound other than those incurred in the
ordinary course of business (as used in this Agreement, a "material"
contract, agreement, franchise, license agreement, debt instrument or
commitment is one which (i) will remain in effect for more than six (6)
months after the date of this Agreement or (ii) involves aggregate
obligations of at least 300,000 RMB.
(b) All contracts, agreements, franchises, license agreements,
and other commitments to which Xxxx Xxxx is a party or by which its
properties are bound and which are material to the operations of Xxxx
Xxxx taken as a whole are valid and enforceable by Xxxx Xxxx in all
respects, except as limited by bankruptcy and insolvency laws and by
other laws affecting the rights of creditors generally;
(c) Xxxx Xxxx is not a party to or bound by, and the
properties of Xxxx Xxxx are not subject to any contract, agreement,
other commitment or instrument; any charter or other corporate
restriction; or any judgment, order, writ, injunction, decree, or award
which materially and adversely affects, the business operations,
properties, assets, or condition of Xxxx Xxxx; and
(d) Except as included or described in the Xxxx Xxxx Schedules
or reflected in the most recent June 30, 2005 balance sheet, Xxxx Xxxx
is not a party to any oral or written (i) contract for the employment
of any officer or employee which is not terminable on 30 days, or less
notice; (ii) profit sharing, bonus, deferred compensation, stock
option, severance pay, pension benefit or retirement plan, (iii)
agreement, contract, or indenture relating to the borrowing of money,
(iv) guaranty of any obligation, other than one on which Xxxx Xxxx is a
primary obligor, for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of obligations
which, in the aggregate do not exceed more than one year or providing
for payments in excess of $25,000 in the aggregate; (vi) collective
bargaining agreement; or (vii) agreement with any present or former
officer or director of Xxxx Xxxx.
Section 1.10 Material Contract Defaults. Xxxx Xxxx is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Xxxx Xxxx and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Xxxx Xxxx has not taken adequate steps to prevent
such a default from occurring.
Section 1.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
an event of default under, or terminate, accelerate or modify the terms of any
material indenture, mortgage, deed of trust, or other material contract,
agreement, or instrument to which Xxxx Xxxx is a party or to which any of its
properties or operations are subject.
Section 1.12 Governmental Authorizations. Except as set forth in the
Xxxx Xxxx Schedules, Xxxx Xxxx has all licenses, franchises, permits, and other
governmental authorizations that are legally required to enable it to conduct
its business in all material respects as conducted on the date hereof. Except
for compliance with federal and state securities and corporation laws, as
hereinafter provided, no authorization, approval, consent, or order of, or
registration, declaration, or filing with, any court or other governmental body
is required in connection with the execution and delivery by Xxxx Xxxx of this
Agreement and the consummation by Xxxx Xxxx of the transactions contemplated
hereby.
Section 1.13 Compliance With Laws and Regulations. Except as set forth
in the Xxxx Xxxx Schedules, to the best of its knowledge Xxxx Xxxx has complied
with all applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations, properties,
assets, or condition of Xxxx Xxxx or except to the extent that noncompliance
would not result in the occurrence of any material liability for Xxxx Xxxx.
Section 1.14 Insurance. All of the properties of Xxxx Xxxx are fully
insured for their full replacement cost.
Section 1.15 Approval of Agreement. The board of directors of Xxxx Xxxx
has authorized the execution and delivery of this Agreement by Xxxx Xxxx and has
approved this Agreement and the transactions contemplated hereby.
Section 1.16 Material Transactions or Affiliations. Set forth in the
Xxxx Xxxx Schedules is a description of every contract, agreement, or
arrangement between Xxxx Xxxx and any predecessor and any person who was at the
time of such contract, agreement, or arrangement an officer, director, or person
owning of record, or known by Xxxx Xxxx to own beneficially, 5% or more of the
issued and outstanding common stock of Xxxx Xxxx and which is to be performed in
whole or in part after the date hereof or which was entered into not more than
three years prior to the date hereof. Except as disclosed in the Xxxx Xxxx
Schedules or otherwise disclosed herein, no officer, director, or 5% shareholder
of Xxxx Xxxx has, or has had since inception of Xxxx Xxxx any known interest,
direct or indirect, in any transaction with Xxxx Xxxx which was material to the
business of Xxxx Xxxx. There are no commitments by Xxxx Xxxx, whether written or
oral, to lend any funds, or to borrow any money from, or enter into any other
transaction with, any such affiliated person.
Section 1.17 Labor Relations. Xxxx Xxxx has not had work stoppage
resulting from labor problems. To the knowledge of Xxxx Xxxx no union or other
collective bargaining organization is organizing or attempting to organize any
employee of Xxxx Xxxx.
Section 1.18 Xxxx Xxxx Schedules. Xxxx Xxxx has delivered to Eternal
the following schedules, which are collectively referred to as the " Xxxx Xxxx
Schedules" and which consist of separate schedules dated as of the date of
execution of this Agreement, all certified by the chief executive officer of
Xxxx Xxxx as complete, true, and correct as of the date of this Agreement in all
material respects:
(a) a schedule containing complete and correct copies of the
memorandum and articles of association of Xxxx Xxxx in effect as of the
date of this Agreement;
(b) a schedule containing the financial statements of Xxxx
Xxxx identified in paragraph 1.04(a);
(c) a Schedule 1.19(c) containing a list indicating the name
and address of each shareholder of Xxxx Xxxx together with the number
of shares owned by him, her or it;
(d) a schedule containing a description of all real property
owned by Xxxx Xxxx, together with a description of every mortgage, deed
of trust, pledge, lien, agreement, encumbrance, claim, or equity
interest of any nature whatsoever in such real property;
(e) copies of all licenses, permits, and other governmental
authorizations (or requests or applications therefor) pursuant to which
Xxxx Xxxx carries on or proposes to carry on its business (except those
which, in the aggregate, are immaterial to the present or proposed
business of Xxxx Xxxx);
(h) a schedule setting forth any other information, together
with any required copies of documents, required to be disclosed in the
Xxxx Xxxx Schedules by Sections 1.01 through 1.19.
Xxxx Xxxx shall cause the Xxxx Xxxx Schedules and the instruments and
data delivered to Eternal hereunder to be promptly updated after the date hereof
up to and including the Closing Date.
It is understood and agreed that not all of the schedules referred to
above have been completed or are available to be furnished by Xxxx Xxxx. Xxxx
Xxxx shall have until January 31, 2007 to provide such schedules. If Xxxx Xxxx
cannot or fails to do so, or if Xxxx Xxxx acting reasonably finds any such
schedules or updates provided after the date hereof to be unacceptable according
to the criteria set forth below, Eternal may terminate this Agreement by giving
written notice to Xxxx Xxxx within five (5) days after the schedules or updates
were due to be produced or were provided. For purposes of the foregoing, Eternal
may consider a disclosure in the Xxxx Xxxx Schedules to be "unacceptable" only
if that item would have a material adverse impact on the financial statements
listed in Section 1.04(a), taken as a whole.
Section 1.19 Valid Obligation. This Agreement and all agreements and
other documents executed by Xxxx Xxxx in connection herewith constitute the
valid and binding obligation of Xxxx Xxxx, enforceable in accordance with its or
their terms, except as may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ETERNAL TECHNOLOGIES GROUP, INC.
As an inducement to, and to obtain the reliance of Xxxx Xxxx except as
set forth in the Eternal Schedules (as hereinafter defined), Eternal represents
and warrants as follows:
Section 2.01 Organization. Eternal is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada and
has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets, to carry on its
business in all material respects as it is now being conducted, and except where
failure to be so qualified would not have a material adverse effect on its
business, there is no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. Included in the Eternal Schedules are
complete and correct copies of the certificate of incorporation and bylaws of
Eternal as in effect on the date hereof. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, violate any provision of Eternal 's certificate of incorporation or
bylaws. Eternal has taken all action required by law, its certificate of
incorporation, its bylaws, or otherwise to authorize the execution and delivery
of this Agreement, and Eternal has full power, authority, and legal right and
has taken all action required by law, its certificate of incorporation, bylaws,
or otherwise to consummate the transactions herein contemplated.
Section 2.02 Capitalization. Eternal 's authorized capitalization
consists of 95,000,000 shares of common stock, par value $.001 of which
43,567,300 shares are issued and outstanding and 5,000,000 shares of Preferred
Stock, par value $.001, of which no shares are issued and outstanding. All
issued and outstanding shares are legally issued, fully paid, and non-assessable
and not issued in violation of the preemptive or other rights of any person.
Section 2.03 Subsidiaries and Predecessor Corporations. Eternal's
predecessor corporation was Waterford Sterling Corporation. Its subsidiaries are
disclosed in Schedule 2.03. For purposes hereinafter, the term " Eternal " also
includes those subsidiaries, if any, set forth on Schedule 2.03.
Section 2.04 Securities Filings; Financial Statements.
(a) Since December 12, 2002, the effective date of its
acquisition by Waterford Sterling, Eternal has filed all forms, reports
and documents required to be filed with the Securities and Exchange
Commission, and has heretofore delivered to Xxxx Xxxx, in the form
filed with the Commission, (i) all quarterly and annual reports on
Forms 10-QSB and 10-KSB filed since December 12, 2005, (ii) all other
reports filed by Eternal with the Securities and Exchange Commission
since December 31, 2005 (collectively, the "SEC Reports") and (iv) all
comment letters from the Securities and Exchange Commission with
respect to the SEC Reports. The SEC Reports (i) were prepared in
accordance with the requirements of the Securities Exchange Act of 1934
or the Securities Act of 1933, as appropriate, and (ii) did not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
Section 2.05 Options or Warrants. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued stock of Eternal other than those disclosed in Eternal's financial
statements.
Section 2.06 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or, to the knowledge Eternal after
reasonable investigation, threatened by or against Eternal or affecting Eternal
or its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of any
kind except as disclosed in Schedule 2.06. Eternal has no knowledge of any
default on its part with respect to any judgement, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator, or governmental
agency or instrumentality or any circumstance which after reasonable
investigation would result in the discovery of such default.
Section 2.07 Material Contract Defaults. Eternal is not in default in
any material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets or condition of Eternal and there is no event of default in
any material respect under any such contract, agreement, lease, or other
commitment in respect of which Eternal has not taken adequate steps to prevent
such a default from occurring.
Section 2.08 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, constitute
a default under, or terminate, accelerate or modify the terms of, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Eternal is a party or to which any of its assets or operations are subject.
Section 2.09 Governmental Authorizations. Eternal has all licenses,
franchises, permits, and other governmental authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Eternal of this Agreement and the consummation by Eternal of the
transactions contemplated hereby.
Section 2.10 Compliance With Laws and Regulations. To the best of its
knowledge, Eternal has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or condition of Eternal or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities.
Section 2.11 Approval of Agreement. The board of directors of Eternal
has authorized the execution and delivery of this Agreement by Eternal and has
approved this Agreement and the transactions contemplated hereby and will
recommend to its shareholders that they approve this Agreement and the
transactions contemplated hereby.
Section 2.12 Valid Obligation. This Agreement and all agreements and
other documents executed by Eternal in connection herewith constitute the valid
and binding obligation of Eternal, enforceable in accordance with its or their
terms, except as may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
ARTICLE III
PLAN OF EXCHANGE
Section 3.01 The Exchange. On the terms and subject to the conditions
set forth in this Agreement, on the Closing Date (as defined in Section 3.03),
Xxxx Xxxx shall assign, transfer and deliver, free and clear of all liens,
pledges, encumbrances, charges, restrictions or known claims of any kind,
nature, or description, the number of shares of common stock of Xxxx Xxxx set
forth on Schedule 1.18(c) attached hereto, in the aggregate constituting 22% of
the issued and outstanding shares of common stock of Xxxx Xxxx held by each of
such shareholders; the objective of such Exchange being the acquisition by
Eternal of 22% of the issued and outstanding common stock of Xxxx Xxxx. In
exchange for the transfer of such securities by Xxxx Xxxx, Eternal shall issue
to Xxxx Xxxx (1) an aggregate of 14,850,000 RMB and 2,719,730 shares of common
stock proportionately. At the Closing, each Xxxx Xxxx Shareholder shall, on
surrender of his certificate or certificates representing such Xxxx Xxxx shares
to Eternal or its registrar or transfer agent, be entitled to receive a
certificate or certificates evidencing his proportionate interest in the Initial
Shares. Upon consummation of the transaction contemplated herein, assuming
participation by all of the Xxxx Xxxx Shareholders, all of the shares of capital
stock of Xxxx Xxxx shall be held by Eternal.
Section 3.02 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date") but not later than Janaury 1, 2007, subject
to the right of Eternal or Xxxx Xxxx to extend such Closing Date by up to an
additional thirty (30) days. Such Closing shall take place at a mutually
agreeable time and place.
Section 3.03 Closing Events. At the Closing, Eternal, Xxxx Xxxx shall
execute, acknowledge, and deliver (or shall ensure to be executed, acknowledged,
and delivered) any and all certificates, opinions, financial statements,
schedules, agreements, resolutions, rulings or other instruments required by
this Agreement to be so delivered at or prior to the Closing, together with such
other items as may be reasonably requested by the parties hereto and their
respective legal counsel in order to effectuate or evidence the transactions
contemplated hereby. Among other things, Xxxx Xxxx shall provide an opinion of
counsel acceptable to Eternal as to such matters as Eternal may reasonably
request, which shall include, but not be limited to, a statement, to the effect
that (i) to such counsel's best knowledge, after reasonable investigation, from
inception until the Closing Date, Xxxx Xxxx has complied with all applicable
statutes and regulations of any federal, state, or other applicable governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets or
condition of Xxxx Xxxx or except to the extent that noncompliance would not
result in the occurrence of any material liability (such compliance including,
but not being limited to, the filing of all reports to date with federal and
state securities authorities).
Section 3.04 Termination.
(a) This Agreement may be terminated by the board of directors
of either Eternal or Xxxx Xxxx at any time prior to the Closing Date
if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body which
shall seek to restrain, prohibit, or invalidate the
transactions contemplated by this Agreement and which, in the
judgement of such board of directors, made in good faith and
based upon the advice of its legal counsel, makes it
inadvisable to proceed with the Exchange; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions (which does not
include the Securities and Exchange Commission) or in the
judgement of such board of directors, made in good faith and
based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will
be obtained only on a condition or conditions which would be
unduly burdensome, making it inadvisable to proceed with the
Exchange.
In the event of termination pursuant to this paragraph (a) of Section
3.04, no obligation, right or liability shall arise hereunder, and each
party shall bear all of the expenses incurred by it in connection with
the negotiation, drafting, and execution of this Agreement and the
transactions herein contemplated .
(b) This Agreement may be terminated by the board of directors
of Eternal at any time prior to the Closing Date if:
(i) there shall have been any change after the date
of the latest balance sheet of Xxxx Xxxx in the assets,
properties, business, or financial condition of Xxxx Xxxx ,
which could have a materially adverse effect on the financial
statements of Xxxx Xxxx listed in Section 1.04(a) taken as a
whole, except any changes disclosed in the Xxxx Xxxx
Schedules;
(ii) the board of directors of Eternal determines in
good faith that one or more of Xxxx Xxxx'x conditions to
Closing has not occurred, through no fault of Xxxx Xxxx.
(iii) Xxxx Xxxx shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Xxxx Xxxx contained herein shall be inaccurate in any
material respect, where such noncompliance or inaccuracy has
not been cured within ten (10) days after written notice
thereof.
If this Agreement is terminated pursuant to this paragraph (b) of
Section 3.04, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder, except
that Xxxx Xxxx shall bear its own costs as well as the reasonable costs
of Eternal in connection with the negotiation, preparation, and
execution of this Agreement and qualifying the offer and sale of
securities to be issued in the Exchange under the registration
requirements, or exemption from the registration requirements, of state
and federal securities laws.
(c) This Agreement may be terminated by the board of directors
of Xxxx Xxxx at any time prior to the Closing Date if:
(i) the board of directors of Xxxx Xxxx determines in
good faith that one or more of Eternal's conditions to Closing
has not occurred, through no fault of Eternal;
(ii) on or before January 31, 2007 Xxxx Xxxx notifies
Eternal that Xxxx Xxxx'x investigation pursuant to Section
4.01 below has uncovered information which it finds
unacceptable.
(iii) Eternal shall fail to comply in any material
respect with any of its covenants or agreements contained in
this Agreement or if any of the representations or warranties
of Eternal contained herein shall be inaccurate in any
material respect, where such noncompliance or inaccuracy has
not been cured within ten (10) days after written notice
thereof.
If this Agreement is terminated pursuant to this paragraph (c) of
Section 3.04, this Agreement shall be of no further force or effect,
and no obligation, right or liability shall arise hereunder, except
that Eternal shall bear its own costs as well as the reasonable costs
of Xxxx Xxxx and its principal shareholders incurred in connection with
the negotiation, preparation and execution of this Agreement.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. Eternal and Xxxx Xxxx
will each afford to the officers and authorized representatives of the other
full access to the properties, books and records of Eternal or Xxxx Xxxx , as
the case may be, in order that each may have a full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other,
and each will furnish the other with such additional financial and operating
data and other information as to the business and properties of Eternal or Xxxx
Xxxx, as the case may be, as the other shall from time to time reasonably
request. Without limiting the foregoing, as soon as practicable after the end of
each fiscal quarter (and in any event through the last fiscal quarter prior to
the Closing Date), each party shall provide the other with quarterly internally
prepared and unaudited financial statements.
Section 4.02 Third Party Consents and Certificates. Eternal and Xxxx
Xxxx agree to cooperate with each other in order to obtain any required third
party consents to this Agreement and the transactions herein contemplated.
Section 4.03 Actions Prior to Closing.
(a) From and after the date of this Agreement until the
Closing Date and except as set forth in the Xxxx Xxxx Schedules or as
permitted or contemplated by this Agreement, Eternal (subject to
paragraph (d) below) and Xxxx Xxxx respectively, will each:
(i) carry on its business in substantially the same
manner as it has heretofore;
(ii) maintain and keep its properties in states of
good repair and condition as at present, except for
depreciation due to ordinary wear and tear and damage due to
casualty;
(iii) maintain in full force and effect insurance
comparable in amount and in scope of coverage to that now
maintained by it;
(iv) perform in all material respects all of its
obligations under material contracts, leases, and instruments
relating to or affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve its
business organization intact, to retain its key employees, and
to maintain its relationship with its material suppliers and
customers; and
(vi) fully comply with and perform in all material
respects all obligations and duties imposed on it by all
federal and state laws and all rules, regulations, and orders
imposed by federal or state governmental authorities.
(b) From and after the date of this Agreement until the
Closing Date, neither Eternal nor Xxxx Xxxx will:
(i) make any changes in their articles or certificate
of incorporation or bylaws; or similar documents of
organization and governance.
(ii) take any action described in Section 1.07.
(iii) enter into or amend any contract, agreement, or
other instrument of any of the types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or services; or
Section 4.06 Sales Under Rule 144 or 145,If Applicable.
(a) Eternal will use its best efforts to at all times comply
with the reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), including timely filing of all
periodic reports required under the provisions of the Exchange Act and
the rules and regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding
restricted stock of Eternal that such person intends to sell any shares
under Rule 144, Rule 145 or Regulation S promulgated under the
Securities Act (including any rule adopted in substitution or
replacement thereof), Eternal will certify in writing to such person
that it has filed all of the reports required to be filed by it under
the Exchange Act to enable such person to sell such person's restricted
stock under Rule 144, 145 or Regulation S, as may be applicable in the
circumstances, or will inform such person in writing that it has not
filed any such report or reports.
(c) If any certificate representing any such restricted stock
is presented to Eternal's transfer agent for registration of transfer
in connection with any sale theretofore made under Rule 144, 145 or
Regulation S, provided such certificate is duly endorsed for transfer
by the appropriate person(s) or accompanied by a separate stock power
duly executed by the appropriate person(s) in each case with reasonable
assurances that such endorsements are genuine and effective, and is
accompanied by an opinion of counsel satisfactory to Eternal and its
counsel that the stock transfer has complied with the requirements of
Rule 144, 145 or Regulation S, as the case may be, Eternal will
promptly instruct its transfer agent to register such shares and to
issue one or more new certificates representing such shares to the
transferee and, if appropriate under the provisions of Rule 144, 145 or
Regulation S, as the case may be, free of any stop transfer order or
restrictive legend. The provisions of this Section 4.16 shall survive
the Closing and the consummation of the transactions contemplated by
this Agreement.
Section 4.07 Indemnification.
(a) Xxxx Xxxx hereby agrees to indemnify Eternal and each of
the officers, agents and directors of Eternal as of the date of
execution of this Agreement against any loss, liability, claim, damage,
or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentations made under
Article I of this Agreement. The indemnification provided for in this
paragraph shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement.
(b) Eternal hereby agrees to indemnify Xxxx Xxxx and each of
the officers, agents, and directors of Xxxx Xxxx and each of the Xxxx
Xxxx Shareholders as of the date of execution of this Agreement against
any loss, liability, claim, damage, or expense (including, but not
limited to, any and all expense whatsoever reasonably incurred in
investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they
may become subject arising out of or based on any inaccuracy appearing
in or misrepresentation made under Article II of this Agreement. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement.
Section 4.08 Retention of Shares. Eternal hereby warrants to Xxxx Xxxx
and its Shareholders that Eternal is acquiring the shares for
investment purposes only and not with an intent to resale the shares.
Furthermore, Eternal represents to Xxxx Xxxx and its Shareholders that
on a date two years from the date of Closing, it will own a minimum of
60% of the issued and outstanding shares of Xxxx Xxxx.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF ETERNAL TECHNOLOGIES GROUP, INC.
The obligations of Eternal under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Xxxx Xxxx in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date (except for changes therein permitted by this Agreement). Xxxx Xxxx shall
have performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Xxxx Xxxx prior to or at the
Closing. Eternal shall be furnished with a certificate, signed by a duly
authorized executive officer of Xxxx Xxxx and dated the Closing Date, to the
foregoing effect.
Section 5.02 Officer's Certificate. Eternal shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of Xxxx Xxxx to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of Xxxx Xxxx
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement, or, to the
extent not disclosed in the Xxxx Xxxx Schedules, by or against Xxxx Xxxx, which
might result in any material adverse change in any of the assets, properties,
business, or operations of Sea.
Section 5.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business,
or operations of Xxxx Xxxx nor shall any event have occurred which, with the
lapse of time or the giving of notice, is determined to be unacceptable using
the criteria set forth in Section 1.19.
Section 5.04 Good Standing. Xxxx Xxxx shall have received a certificate
of good standing from the British Virgin Islands, dated as of a date within ten
days prior to the Closing Date certifying that Xxxx Xxxx is in good standing as
a corporation in the British Virgin Islands.
Section 5.05 Approval by Xxxx Xxxx Shareholders. The Exchange shall
have been approved, and shares delivered in accordance with Section 3.01, by the
holders of not less than ninety percent (90%) of the outstanding common stock of
Xxxx Xxxx, unless a lesser number is agreed to by Eternal.
Section 5.06 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 5.07 Consents. All consents, approvals, waivers or amendments
pursuant to all contracts, licenses, permits, trademarks and other intangibles
in connection with the transactions contemplated herein, or for the continued
operation of Eternal and Xxxx Xxxx after the Closing Date on the basis as
presently operated shall have been obtained.
Section 5.08 Other Items.
(a) Eternal shall have received a list of Xxxx Xxxx'x
shareholders containing the name, address, and number of shares held by
each Xxxx Xxxx shareholder as of the date of Closing, certified by an
executive officer of Xxxx Xxxx as being true, complete and accurate;
and
(b) Eternal shall have received such further opinions,
documents, certificates or instruments relating to the transactions
contemplated hereby as Eternal may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXX XXXX BIOMEDICAL
ENGINEERING CO INTERNATIONAL LTD.
AND THE XXXX XXXX BIOMEDICAL ENGINEERING CO INTERNATIONAL LTD.
SHAREHOLDERS
The obligations of Xxxx Xxxx and the Xxxx Xxxx Shareholders under this
Agreement are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 6.01 Accuracy of Representations and Performance of Covenants.
The representations and warranties made by Eternal in this Agreement were true
when made and shall be true as of the Closing Date (except for changes therein
permitted by this Agreement) with the same force and effect as if such
representations and warranties were made at and as of the Closing Date.
Section 6.02 Officer's Certificate. Xxxx Xxxx shall have been furnished
with certificates dated the Closing Date and signed by duly authorized executive
officers of Eternal, to the effect that no litigation, proceeding, investigation
or inquiry is pending, or to the best knowledge of Eternal threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement or by or against Eternal which might
result in any material adverse change in any of the assets, properties or
operations of Eternal.
Section 6.03 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any change in the financial condition, business or
operations of Eternal.
Section 6.04 Good Standing. Xxxx Xxxx shall have received a certificate
of good standing from the Secretary of State of the State of Nevada or other
appropriate office, dated as of a date within ten days prior to the Closing Date
certifying that Eternal is in good standing as a corporation in the State of
Nevada and has filed all tax returns required to have been filed by it to date
and has paid all taxes reported as due thereon.
Section 6.05 No Governmental Prohibition. No order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or restraining
order shall have been enacted, entered, promulgated or enforced by any court or
governmental or regulatory authority or instrumentality which prohibits the
consummation of the transactions contemplated hereby.
Section 6.06 Consents. All consents, approvals, waivers or
amendments pursuant to all contracts, licenses.
Section 6.07 Other Items. Xxxx Xxxx shall have received further
opinions, documents, certificates, or instruments relating to the transactions
contemplated hereby as Xxxx Xxxx may reasonably request. In addition, Xxxx Xxxx
shall have the right to designate one person to the board of directors of
Eternal.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Brokers. Eternal and Xxxx Xxxx agree that, except as set
out on Schedule 7.01 attached hereto, there were no finders or brokers involved
in bringing the parties together or who were instrumental in the negotiation,
execution or consummation of this Agreement. Eternal and Xxxx Xxxx each agree to
indemnify the other against any claim by any third person other than those
described above for any commission, brokerage, or finder's fee arising from the
transactions contemplated hereby based on any alleged agreement or understanding
between the indemnifying party and such third person, whether express or implied
from the actions of the indemnifying party.
Section 7.02 Governing Law. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of Nevada, without giving effect to principles of conflicts of law
thereunder. Each of the parties (a) irrevocably consents and agrees that any
legal or equitable action or proceedings arising under or in connection with
this Agreement shall be brought exclusively in the federal courts of the United
States.
Section 7.03 Notices. Any notice or other communications required or
permitted hereunder shall be in writing and shall be sufficiently given if
personally delivered to it or sent by telecopy, overnight courier or registered
mail or certified mail, postage prepaid, addressed as follows:
If to Eternal, to: Xxxx. X, 0/X, Xxxxx X.
Innotech Tower,
235 Nanjing Rd. Heping District,
Tianjin 300052
Attn: Xxxxx Xx
With copies to: Xxxx Xxxxxxxxx, Esq.
Vanderkam & Associates
1301 Xxxxxx, #1200
Xxxxxxx, Xxxxx 00000
If to Xxxx Xxxx, to: National Agriculture Science and Technology Garden,
Lie Feng Main Road, Changsha City, Hunan Province China
0000-0000000 Phone
0000-0000000 Fax
With copies to: _______________________
_______________________
_______________________
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given (i) upon receipt, if personally delivered, (ii) on
the day after dispatch, if sent by overnight courier, (iii) upon dispatch, if
transmitted by telecopy and receipt is confirmed by telephone and (iv) three (3)
days after mailing, if sent by registered or certified mail.
Section 7.04 Attorney's Fees. In the event that either party institutes
any action or suit to enforce this Agreement or to secure relief from any
default hereunder or breach hereof, the prevailing party shall be reimbursed by
the losing party for all costs, including reasonable attorney's fees, incurred
in connection therewith and in enforcing or collecting any judgement rendered
therein.
Section 7.05 Confidentiality. Each party hereto agrees with the other
that, unless and until the transactions contemplated by this Agreement have been
consummated, it and its representatives will hold in strict confidence all data
and information obtained with respect to another party or any subsidiary thereof
from any representative, officer, director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except (i) to the extent
such data or information is published, is a matter of public knowledge, or is
required by law to be published; or (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement. In the event of the termination of this
Agreement, each party shall return to the other party all documents and other
materials obtained by it or on its behalf and shall destroy all copies, digests,
work papers, abstracts or other materials relating thereto, and each party will
continue to comply with the confidentiality provisions set forth herein.
Section 7.06 Public Announcements and Filings. Unless required by
applicable law or regulatory authority, none of the parties will issue any
report, statement or press release to the general public, to the trade, to the
general trade or trade press, or to any third party (other than its advisors and
representatives in connection with the transactions contemplated hereby) or file
any document, relating to this Agreement and the transactions contemplated
hereby, except as may be mutually agreed by the parties. Copies of any such
filings, public announcements or disclosures, including any announcements or
disclosures mandated by law or regulatory authorities, shall be delivered to
each party at least one (1) business day prior to the release thereof.
Section 7.07 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.08 Third Party Beneficiaries. This contract is strictly
between Eternal and Xxxx Xxxx, and, except as specifically provided, no
director, officer, stockholder (other than the Xxxx Xxxx Shareholders),
employee, agent, independent contractor or any other person or entity shall be
deemed to be a third party beneficiary of this Agreement.
Section 7.09 Expenses. Subject to Sections 3.05 and 7.04 above, whether
or not the Exchange is consummated, each of Eternal and Xxxx Xxxx will bear
their own respective expenses, including legal, accounting and professional
fees, incurred in connection with the Exchange or any of the other transactions
contemplated hereby.
Section 7.10 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof and
supersedes all prior agreements, understandings and negotiations, written or
oral, with respect to such subject matter.
Section 7.11 Survival; Termination. The representations, warranties,
and covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of two years.
Section 7.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument. For purposes of this agreement,
facsimile signatures shall be deemed original signatures.
Section 7.13 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may by amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
Section 7.14 Best Efforts. Subject to the terms and conditions herein
provided, each party shall use its best efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by it under this
Agreement so that the transactions contemplated hereby shall be consummated as
soon as practicable. Each party also agrees that it shall use its best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective this Agreement and the transactions contemplated
herein.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
as of the date first-above written.
ATTEST: /s/ XxXxx Xx, Chairman
BY: Eternal Technologies Group, Inc.
------------------------------------ XxXxx Xx, Chairman
Secretary or Assistant Secretary
ATTEST: /s/ Meikai Zhou
BY: Xxxx Xxxx Biomedical Engineering
------------------------------------ Co. International, Ltd.
Meikai Zhou
Secretary or Assistant Secretary Chairman