SHARE PURCHASE AGREEMENT between and among: China Longyi Group International holdings Limited, a company formed under the laws of the State of New York; and Daykeen Group Limited, a company formed and existing under the laws of the British Virgin Islands
Exhibit
10.1
between
and among:
China
Longyi Group International holdings Limited,
a
company
formed under the laws of the State of New York;
and
Daykeen
Group Limited,
a
company
formed and existing under the laws of the British Virgin Islands
Dated
as
of November 12, 2007
This
Share Purchase Agreement (“Agreement”)
is
entered into as of November 12, 2007, (the “Effective
Date”)
between and among to following, each of which is referred to as a “Party”
and
together as the “Parties:”
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(i)
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China
Longyi Group International Holdings Limited,
a
company formed under the laws of the State of New York (the “Buyer”);
and
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(ii)
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Daykeen
Group Limited, a
company formed and existing under the laws of the British Virgin
Islands
(“Seller”).
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Certain
capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
A. Buyer
is
a company formed and existing under the laws of the State of New York, United
States of America.
B. Seller
is
a company formed and existing under the laws of the British Virgin Islands
and
owns 100% of the issued
and outstanding ordinary share of Top
Time
International Limited,
a Hong
Kong company (the “Company”)
with a
total authorized share capital of Hong Kong Dollars 500,000,000 (par value
HK$
1) consisting of 500,000,000 ordinary shares (the “Ordinary
Share”),
of
which 427,596,001 shares of Ordinary Share are issued and
outstanding.
C. The
Company owns 90% of the equity of Beijing LongYi JiuZhou Dismutase Biology
Technology Co. Ltd., a Sino-foreign joint venture organized and existing under
the laws of the People’s Republic of China (“Beijing
SOD”);
and
100% of Chongqing LongYi JiuZhou Dismutase Biology Technology Co. Ltd., a wholly
foreign-owned entity organized and existing under the laws of the People’s
Republic of China (“Chongqing
SOD”).
D. Buyer
desires to purchase from Seller, and Seller desire to sell to Buyer, 100% of
the
issued and outstanding ordinary share of the Company, on the terms and subject
to the conditions set forth in this Agreement.
AGREEMENT
The
Parties to this Agreement, intending to be bound thereby, in consideration
for
the mutual promises and covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged
by
the Parties, agree as follows.
ARTICLE
I
THE
TRANSACTION
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1.1
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Purchase
and Sale of the Shares.
At
the Closing referred to in Section
1.3
below, Seller will sell, assign and deliver to the Buyer 427,596,001
shares of the Company, constituting the “Shares,”
and representing one hundred percent (100%) of the issued and outstanding
Ordinary Share of the Company, and Buyer will purchase and accept
the
Shares from the Seller, on the terms and subject to the conditions
set
forth in this Agreement.
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1.2
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Price.
The purchase price for the Shares (the “Purchase
Price”)
will be:
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(a)
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An
amount equal to RMB 222,420,000
($30 million at a conversion rate of RMB 7.414 to one United States
Dollar), by wire transfer of immediately available funds to an account
specified in a written notice from Seller to Buyer, which is delivered
no
later than ten (10) calendar days before the Closing Date;
and
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1
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(b)
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62,250,000
shares of common stock, par value $0.01 per share of the Buyer to
be
delivered within 90 days of the Closing (as defined in Section
1.3).
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1.3
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Closing. The
closing of the sale of the Shares to the Buyer (the “Closing”)
will take place in Hong Kong, at 10:00 a.m. local time on November
13,
2007, or such other date as the Parties may agree upon in writing.
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1.4
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Deliveries
at the Closing. At
the Closing:
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(a)
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The
Parties will fully execute and deliver to each other two (2) originals
of
this Agreement;
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(b)
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The
Buyer will deliver to the Seller:
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(i)
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the
cash portion of the Purchase Price;
and
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(ii)
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an
original duly executed bought note, in the form attached as part
of
Schedule
III;
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(c)
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The
Seller will deliver to the Buyer:
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(i)
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a
receipt, in the form attached as Schedule
II,
acknowledging payment in full, and beneficial receipt by Seller,
of the
entire Purchase Price;
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(ii)
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An
original duly executed sold note and an original duly executed instrument
of transfer in the forms attached as part of Schedule
II,
together with the original share certificate(s) in respect of the
Shares,
assigning the Shares to Buyer; and
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(iii)
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The
Disclosure Schedule (as defined in ARTICLE
II
below).
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1.5
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Registration
of Transfer of Shares.
Seller will ensure that the transfer of the Shares pursuant to this
Agreement is registered with the competent governmental authorities,
including, without limitation, preparing and executing or causing
to be
executed any other documents necessary for the transaction contemplated
by
this Agreement, and submitting or causing to be submitted the same
with
the Hong Kong Companies Registry and/or any other competent
authority.
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1.6
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Stamp
Duties.
Any stamp duties imposed on this Agreement or any other transaction
document executed in connection with this Agreement will be borne
by
Buyer.
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1.7
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Transfer
Expenses.
Any taxes, duties, charges and fees payable in respect of the transfer
and
sale of the Purchased Shares contemplated by this Agreement will
be borne
by Seller and Buyer, respectively, pursuant to the allocation of
responsibilities as provided under relevant Hong Kong laws and
regulations. In the event such laws and regulations do not provide
clearly
whether certain taxes, charges and fees should be paid by Seller
or Buyer,
Seller and Buyer will share such taxes, charges and fees
equally.
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
OF THE SELLER
Except
as
set forth in a Part of the Disclosure Schedule bearing the number of the section
or subsection to which an exception is taken, the Seller represents and warrants
to and for the benefit of the Indemnitees, and each of them, as follows. The
word, “knowledge,” when used with regard to the Seller, means and includes the
knowledge of their stockholder(s).
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2.1
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Seller. The
Seller is a company duly organized, validly existing and in good
standing
under the laws of the British Virgin Islands with full corporate
power and
authority to enter into this Agreement and perform its obligations
hereunder. The Seller is not insolvent, has not declared bankruptcy,
has
not been the subject of the filing of a voluntary or involuntary
petition
in bankruptcy or any proceedings placing it in receivership, and
has not
been party to any assignment for the benefit of creditors. The Seller
is
not subject to any Order that may have an adverse effect on its ability
to
comply with its obligations under this Agreement. The execution,
delivery
and performance of this Agreement and the Transaction Documents on
behalf
of Seller have been duly authorized by all necessary action on the
part of
Seller, and this Agreement and the Transaction Documents have been
duly
executed by Seller and are valid and enforceable as to and binding
against
Seller.
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2
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2.2
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Title
to the Shares.
Seller is the sole owner of and has good title to the Shares, free
and
clear of all Encumbrances and transfer restrictions, other than
restrictions on transferability under securities laws of general
applicability or as set out in the charter documents of the Company.
Seller has not previously assigned or purported to assign the Purchased
Shares (or any part thereof) to any Person. Seller has made no general
solicitation in connection with the
Shares.
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2.3
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Consents
and Approvals.
No consent, action, approval or authorization of, or registration,
declaration or filing with, any Governmental Authority or other third
party is required to be obtained by Seller to authorize the execution
and
delivery by Seller of this Agreement or the Transaction Documents,
the
performance by Seller of the terms hereof and thereof or the consummation
of the transactions contemplated hereby and
thereby.
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2.4
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Other
Instruments.
Seller has executed any and all instruments necessary to effectuate
the
sale, transfer and assignment of the Shares to
Buyer.
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2.5
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Company.
The
Company is duly organized, validly existing and in good standing
under the
laws of Hong Kong and has full corporate power and authority to own
and
hold its properties and to carry on its business as now conducted
and as
proposed to be conducted. The Company is not insolvent, has not declared
bankruptcy, has not been the subject of the filing of a voluntary
or
involuntary petition in bankruptcy or any proceedings placing it
in
receivership, and has not been party to any assignment for the benefit
of
creditors. The Company is not required to be qualified, authorized,
registered or licensed to do business as a foreign corporation in
any
jurisdiction other than the jurisdiction of its incorporation. The
Company
does not own, beneficially or otherwise, any shares or other securities
of, or any direct or indirect interest of any nature in, any Entity
other
than the Subsidiaries. The Company has never conducted any business
under
or otherwise used, for any purpose or in any jurisdiction, any fictitious
name, assumed name, trade name or other name, other than “Daykeen
Group Limited.”
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2.6
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Subsidiaries.
The Company owns, free and clear of all Encumbrances, (a)
ninety percent (90%) of the equity of Beijing LongYi JiuZhou Dismutase
Biology Technology Co. Ltd., a Sino-foreign joint venture organized
and
existing under the laws of the People’s Republic of China (“Beijing
SOD”);
and (b)
one hundred percent (100%) of the equity of Chongqing LongYi JiuZhou
Dismutase Biology Technology Co. Ltd., a wholly foreign-owned entity
organized and existing under the laws of the People’s Republic of China
(“Chongqing
SOD”).
Beijing SOD and Chongqing SOD together are referred to as the
“Subsidiaries.”
Each of the subsidiaries is duly organized, validly existing and
in good
standing under the laws of the PRC and has full corporate power and
authority, and is duly licensed, to own and hold its properties and
to
carry on its business as now conducted and as proposed to be conducted.
Neither of the Subsidiaries is required to be qualified, authorized,
registered or licensed to do business as a foreign corporation in
any
jurisdiction other than the jurisdiction of its organization. Neither
of
the Subsidiaries owns, beneficially or otherwise, any shares or other
securities of, or any direct or indirect interest of any nature in,
any
other Entity.
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2.7
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Charter
Documents; Records. The
Seller has delivered to (or made available for inspection by) the
Buyer
accurate and complete copies of: (a)
the memorandum and articles of association or other comparable charter
documents of the Company, including all amendments thereto; and
(b)
the minutes and other records of the meetings and other proceedings
(including any actions taken by written consent or otherwise without
a
meeting) of the stockholders of the Company, the board of directors
of the
Company and all committees of the board of directors of the Company.
There
have been no meetings or other proceedings of the stockholders of
the
Company, the board of directors of the Company or any committee of
the
board of directors of the Company that are not fully reflected in
such
minutes or other records. To the extent the books of account, stock
records, minute books and other records of the Company are not accurate,
up-to-date and complete, or have not been maintained in accordance
with
sound and prudent business practices, Seller will indemnify the
Indemnified Parties for any loss or damage caused thereby. All of
the
records of the Company are in the actual possession and direct control
of
the Company.
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3
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2.8
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Capitalization. The
total authorized share capital of the Company is 500,000,000 Hong
Kong
Dollars, consisting of 500,000,000 ordinary shares (par value HK$
1), of
which 427,596,001 shares are issued and outstanding. There is no:
(a)
outstanding subscription, option, call, warrant or right (whether
or not
currently exercisable) to acquire any shares of the capital stock
or other
securities of the Company; (b) outstanding security, instrument or
obligation that is or may become convertible into or exchangeable
for any
shares of the capital stock or other securities of the Company; or
(c)
Contract under which the Company is or may become obligated to sell
or
otherwise issue any shares of its capital stock or any other securities.
There are no outstanding obligations of the Company, actual or contingent,
to issue or deliver or to repurchase, redeem or otherwise acquire
any
shares of the Company. No Person other than the Seller has any right
to
vote with respect to the sale of the Shares to the Buyer or any of
the
other Transactions.
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2.9
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Financial
Statements.
The pro-forma consolidated financial statements of the Company and
its
Subsidiaries attached collectively as Part
2.9
of
the Disclosure Schedule (the “Financial
Statements”)
are accurate and complete in all respects, have been prepared in
accordance with generally accepted accounting principles applied
on a
consistent basis throughout the periods covered, and present fairly
the
financial position of the Company and its Subsidiaries as of the
dates and
periods covered thereby.
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2.10
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Absence
of Changes. There
has been no Adverse Change in respect of the Company and its Subsidiaries
since the Financial Statement Date.
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2.11
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Title
To Assets. The
Company and its Subsidiaries own, and have good and valid title to,
free
and clear of any Encumbrances, all of the all assets purported to
be owned
by them, including all the assets reflected in the Financial Statement
and
other books and records of the Company and its Subsidiaries as being
owned
by them and any assets acquired since the Financial Statement Date.
The
assets owned by the Company and its Subsidiaries are sufficient to
enable
them to conduct their Business.
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2.12
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Bank
Accounts. Part 2.12
of
the Disclosure Schedule accurately lists each account maintained
by or for
the benefit of the Company and its Subsidiaries at any bank or other
financial institution, including the name of the institution, the
name in
which the account is maintained, and the names of all individuals
authorized to draw on or make withdrawals from such account. There
are no
safe deposit boxes or similar arrangements maintained by or for the
benefit of the Company or its
Subsidiaries.
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2.13
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Receivables. Part
2.13
of
the Disclosure Schedule provides an accurate and complete breakdown
and
aging of all accounts receivable, notes receivable and other receivables
of the Company and its Subsidiaries as of the Financial Statement
Date.
All existing accounts receivable of the Company and its Subsidiaries
represent valid obligations of customers of the Company arising from
bona
fide transactions entered into in the ordinary course of business.
Part
2.13
of
the Disclosure Schedule identifies all unreturned security deposits
and
other deposits made by, or held by any Person for the benefit of,
the
Company and its Subsidiaries.
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2.14
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Payables. Part 2.14
of
the Disclosure Schedule accurately lists and briefly describes each
account payable or other indebtedness or payment obligation of the
Company
and its Subsidiaries.
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2.15
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Customers;
Distributors.
The Company and its Subsidiaries has not received any notice or other
communication, nor has any knowledge, that any customer or other
Person
identified or required to be identified in Part
2.15
of
the Disclosure Schedule may cease dealing with the Company and its
Subsidiaries or may otherwise reduce the volume of business transacted
by
such Person with the Company and its Subsidiaries below historical
levels.
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4
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2.16
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Inventory.
The inventory
of the Company and its Subsidiaries consists of the items listed
on
Part 2.16
of
the Disclosure Schedule (the “Inventory”).
All of the Inventory is of a type, quality and condition sufficient
for
the purposes of the Business. The value of the Inventory is accurately
identified on the Financial Statements.
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2.17
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Title
to Property and Assets.
The Company and its Subsidiaries have good and marketable title to
their
properties and assets, including the properties and assets reflected
in
the most recent balance sheet included in the Financial Statements,
and
good title to their leasehold estates, in each case subject to no
Encumbrance, other than (a) those resulting from taxes which have not
yet become delinquent, (b) minor liens and encumbrances which do not
materially detract from the value of the property subject thereto
or
materially impair the operations of the Company and its Subsidiaries,
and
(c) those that have otherwise arisen in the ordinary course of
business. All facilities, machinery, equipment, fixtures, vehicles
and
other properties owned, leased or used by the Company are in good
operating condition and repair and are reasonably fit and usable
for the
purposes for which they are being used. The Company is in compliance
with
all material terms of each lease to which it is a party or is otherwise
bound.
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2.18
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Intellectual
Property.
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(a)
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The
Company and its Subsidiaries owns or possesses sufficient legal rights
to
all patents, trademarks, service marks, trade names, copyrights,
customer
lists, trade secrets, licenses, information and other proprietary
rights
and processes necessary for the conduct of their Business, without
any
known infringement of the rights of others. There are no outstanding
options, licenses or agreements of any kind relating to the foregoing
proprietary rights, nor are the Company or its Subsidiaries bound
by or a
party to any options, licenses or agreements of any kind with respect
to
the patents, trademarks, service marks, trade names, copyrights,
trade
secrets, licenses, information and other proprietary rights and processes
of any other person or entity other than such licenses or agreements
arising from the purchase of “off the shelf” or standard
products.
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(b)
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The
Company and its Subsidiaries have not received any communications
alleging
that any of them has violated or, by conducting their Business, would
violate any of the intellectual property rights of any other
Person.
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2.19
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Contracts. Part
2.19
of
the Disclosure Schedule identifies and describes each material Company
Contract, each of which is valid and in full force and effect. Copies
of
all material Company Contracts have been made available to Buyer.
To the
Seller’s knowledge: (i) no Person has violated or breached, or declared
or
committed any default under, any Company Contract; (ii) no event
has
occurred, and no circumstance or condition exists, that might (with
or
without notice or lapse of time) (A) result in a violation or breach
of any of the provisions of any Company Contract, (B) give any Person
the right to declare a default or exercise any remedy under any Company
Contract, (C) give any Person the right to accelerate the maturity or
performance of any Company Contract, or (D) give any Person the right
to
cancel, terminate or modify any Company Contract; (iii) the Company
has
not received any notice or other communication (in writing or otherwise)
regarding any actual, alleged, possible or potential violation or
breach
of, or default under, any Company Contract; and (iv) the Company
has not
waived any right under any Company
Contract.
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2.20
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Liabilities.
The Company and its Subsidiaries have no material Liabilities and,
to the
best of Seller’s knowledge, has no material contingent Liabilities,
except
(a)
Liabilities disclosed in the Financial Statements, and (b)
current Liabilities incurred in the ordinary course of business subsequent
to the Financial Statement Date which, in the aggregate, are not
material
to the financial condition of the Company and its
Subsidiaries.
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2.21
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No
Bankruptcy.
The Company and its Subsidiaries have not, at any time, (i) made a
general assignment for the benefit of creditors, (ii) filed, or had
filed against it, any bankruptcy petition or similar filing,
(iii) suffered the attachment or other judicial seizure of all or a
substantial portion of its assets, (iv) admitted in writing their
inability to pay their debts as they become due.
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2.22
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Compliance
with Legal Requirements.
The Company and its Subsidiaries have not received, at any time,
any
notice or other communication (in writing or otherwise) from any
Governmental Body or any other Person regarding any actual, alleged,
possible or potential violation of, or failure to comply with, any
Legal
Requirement. To the knowledge of the Seller, the Company and its
Subsidiaries have complied with all applicable Legal Requirements
in the
conduct of their Business.
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2.23
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Governmental
Authorizations. Part
2.23
of
the Disclosure Schedule lists each Governmental Authorization held
or used
by the Company or any of its Subsidiaries in the conduct of their
Business, each of which is valid and in full force and effect, and
all of
which together are sufficient for the Company and its Subsidiaries
to
conduct their Business. The Company and its Subsidiaries have at
all times
been in material compliance with all Governmental Authorizations
listed or
required to be listed in Part
2.23
of
the Disclosure Schedule, and have never received any notice or other
communication from any Governmental Authority to the contrary. Copies
of
all such Governmental Authorizations have been made available to
the
Buyer.
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2.24
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Tax
Matters. The
Seller has delivered to (or made available for inspection by) the
Buyer
accurate and complete copies of all Tax Returns that have been filed
on
behalf of or with respect to the Company and its Subsidiaries since
December 31, 2003. The information contained in such Tax Returns is
accurate and complete in all respects. The Company and its Subsidiaries
have timely paid all Taxes required to be paid by them and have received
no notice or other communication from any Governmental Authority
indicating any default, deficiency, penalty or other adverse matter
with
regard to any Tax owed or purported to be owed by them. The Company
and
its Subsidiaries have made provision on their books for all Taxes
payable
by them relating to periods for which no Tax Returns have been filed.
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2.25
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Employee
and Labor Matters. Part
2.25
of
the Disclosure Schedule lists each employee of the Company and its
Subsidiaries by name, date of hire, and current compensation. No
employee
of the Company or any of its Subsidiaries, nor any consultant with
whom
any of them has contracted, is in violation of the terms of any agreement
between such Person and the Company or its Subsidiaries. No employee
of
the Company or its Subsidiaries has been granted the right to continued
employment by the Company or its Subsidiaries or to any material
compensation following termination of employment with the Company
or its
Subsidiaries. The
Company and its Subsidiaries does not maintain, manage or fund, and
has
never maintained. established, managed or funded any Employee Benefit
Plan
other than those mandated by applicable Legal Requirements.
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2.26
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Sale
of Products.
Each product that has been sold by the Company or its Subsidiaries
to any
Person: (i)
conformed and complied in all material respects with the terms and
requirements of any applicable warranty or other Contract and with
all
applicable Legal Requirements; and (ii)
was free of any design or other defects or deficiencies at the time
of
sale. Neither the Company nor its Subsidiaries will incur or otherwise
become subject to any Liability arising directly or indirectly from
any
product sold by them on or at any time prior to the Closing
Date.
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2.27
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Performance
of Services.
Neither Company nor its Subsidiaries has provided services for
compensation to any other Person.
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2.28
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Insurance.
There is no insurance policy maintained by or at the expense of,
or for
the direct or indirect benefit of, the Company or its Subsidiaries
except
as set forth in Part
2.28
of
the Disclosure Schedule.
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2.29
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Related
Party Transactions.
Except as set forth in Part 2.29
of
the Disclosure Schedule: (a) no Related Party has any direct or indirect
interest of any nature in any of the assets of the Company or its
Subsidiaries; (b) no Related Party is, or has at any time since
December 31, 2006 been, indebted to the Company or its Subsidiaries
any; (c) since December 31, 2006, no Related Party has entered into,
or has had any direct or indirect financial interest in, any Company
Contract, transaction or business dealing of any nature involving
the
Company or its Subsidiaries; (d) no Related Party is competing, or
has at
any time since December 31, 2006 competed, directly or indirectly,
with the Company or its Subsidiaries; (e) no Related Party has any
claim
or right against the Company or its Subsidiaries; and (f) no event
has
occurred, and no condition or circumstance exists, that might (with
or
without notice or lapse of time) directly or indirectly give rise
to or
serve as a basis for any claim or right in favor of any Related Party
against the Company or its Subsidiaries.
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2.30
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Proceedings.
There is no pending Proceeding, and to Seller’s knowledge, no Person has
threatened to commence any Proceeding that involves the Company or
its
Subsidiaries or their Business, or which reasonably could be anticipated
to prevent, delay, make illegal or otherwise interfere with the
consummation of the Transactions, and no condition or circumstance
exists
which might reasonably be expect to give rise to or serve as a basis
for
any such Proceeding. No Proceeding has ever been commenced by or
against
the Company or its Subsidiaries in the past.
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2.31
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Orders.
There is no Order in effect relating to the Business or assets of
the
Company or its Subsidiaries to which the Seller, the Company or its
Subsidiaries, any Related Party, or any of the assets owned or used
by the
Company or its Subsidiaries in their Business, is subject.
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2.32
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Authority;
Binding Nature of Agreements.
The execution, delivery and performance by each Seller of the
Transactional Agreements to which it is or may become a party have
been
duly authorized by all necessary action on the part of such Seller
and its
stockholders, board of directors and officers. This Agreement and
each of
the other Transactional Agreements, when executed by a Seller, will
constitute the legal, valid and binding obligation of such Seller,
enforceable against it in accordance with its
terms.
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2.33
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Non-Contravention;
Consents.
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(a)
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Neither
the Company or its Subsidiaries nor the Seller was, is or will be,
required to make any filing with or give any notice to, or to obtain
any
Consent or Governmental Authorization from, any Person or Governmental
Body in connection with the execution and delivery of any of the
Transactional Agreements or the consummation or performance of any
of the
Transactions.
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(b)
|
Neither
the execution and delivery of any of the Transactional Agreements,
nor the
consummation or performance of any of the Transactions, will directly
or
indirectly (with or without notice or lapse of time),
have an Adverse Effect on the Business of the Company or its Subsidiaries
or the Shares.
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2.34
|
Securities
Representations. The
Seller understands, acknowledges and agrees that the offering and
sale of
the shares of the Buyer hereunder (the “Acquisition
Shares”)
to the Seller in accordance with this Agreement has not been registered
under the Securities Act or under any state securities laws or regulations
and that the Acquisition Shares are being offered and sold to it
in
reliance on an exemption from the registration requirements of United
States federal and state securities laws under Regulation S promulgated
under the Securities Act and that the Buyer is relying upon the truth
and
accuracy of the representations, warranties, agreements, acknowledgments
and understandings of the Seller set forth herein in order to determine
the applicability of such exemptions and the suitability of the Seller
to
acquire the Acquisition Shares. In this regard, the Seller represents
and
warrants as follows:
|
|
(a)
|
The
Seller is not a U.S. Person (as defined below) or an affiliate (as
defined
in Rule 501(b) under the Securities Act) of the Buyer. A U.S. Person
means
any one of the following: (1) any natural person resident in the
United
States of America; (2) any partnership or corporation organized or
incorporated under the laws of the United States of America; (3)
any
estate of which any executor or administrator is a U.S. person; (4)
any
trust of which any trustee is a U.S. person; (5) any agency or branch
of a
foreign entity located in the United States of America; (6) any
non−discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account
of a
U.S. person; (7) any discretionary account or similar account (other
than
an estate or trust) held by a dealer or other fiduciary organized,
incorporated or (if an individual) resident in the United States
of
America; and (8) any partnership or corporation if: (a) organized
or
incorporated under the laws of any foreign jurisdiction; and (b)
formed by
a U.S. person principally for the purpose of investing in securities
not
registered under the Securities Act, unless it is organized or
incorporated, and owned, by accredited investors (as defined in Rule
501(a) under the Securities Act) who are not natural persons, estates
or
trusts.
|
7
|
(b)
|
At
the time of the origination of contact concerning this Agreement
and the
date of the execution and delivery of this Agreement, the Seller
was
outside of the United States.
|
|
(c)
|
The
Seller will not, during the period commencing on the date of issuance
of
the Acquisition Shares and ending on the first anniversary of such
date,
or such shorter period as may be permitted by Regulation S or other
applicable securities law (the “Restricted
Period”),
offer, sell, pledge or otherwise transfer the Acquisition Shares
in the
United States, or to a U.S. Person for the account or for the benefit
of a
U.S. Person, or otherwise in a manner that is not in compliance with
Regulation S. At no time shall a Shareholder offer or sell the Acquisition
Shares unless they are registered under the Securities Act or are
exempt
from the registration requirements of the Securities Act and any
applicable state or foreign securities laws or regulations.
|
|
(d)
|
The
Seller will offer, sell, pledge or otherwise transfer the Acquisition
Shares only pursuant to registration under the Securities Act or
an
available exemption therein and, in accordance with all applicable
state
and foreign securities laws.
|
|
(e)
|
The
Seller has not in the United States, engaged in, and will not directly
or
indirectly engage in, any short selling of or any hedging or similar
transaction with respect to the Acquisition Shares, including without
limitation, any put, call or other option transaction, option writing
or
equity swap.
|
|
(f)
|
Neither
the Seller nor or any Person acting on its behalf has engaged, nor
will
engage, in any directed selling efforts to a U.S. Person with respect
to
the Acquisition Shares and the Seller and any person acting on its
behalf
have complied and will comply with the “offering restrictions”
requirements of Regulation S under the Securities
Act.
|
|
(g)
|
The
transactions contemplated by this Agreement have not been prearranged
with
a buyer located in the United States or with a U.S. Person, and are
not
part of a plan or scheme to evade the registration requirements of
the
Securities Act.
|
|
(h)
|
Neither
the Seller nor any Person acting on its behalf has undertaken or
carried
out any activity for the purpose of, or that could reasonably be
expected
to have the effect of, conditioning the market in the United States,
its
territories or possessions, for any of the Acquisition Shares. Each
of the
Shareholder agrees not to cause any advertisement of the Acquisition
Shares to be published in any newspaper or periodical or posted in
any
public place and not to issue any circular relating to the Acquisition
Shares, except such advertisements that include the statements required
by
Regulation S under the Securities Act, and only offshore and not
in the
U.S. or its territories, and only in compliance with any local applicable
securities laws.
|
|
2.35
|
Certain
Payments.
Neither the Seller nor any Person acting for or on behalf of the
Company
or its Subsidiaries or the Seller has, at any time, directly or
indirectly, with respect to the Business of the Company or its
Subsidiaries, (a)
used the funds of the Seller, the Company or its Subsidiaries to
make any
unlawful gift or payment to any Governmental Authority, governmental
official or employee; or (b)
made any payment or given any thing of value to any other Person
for the
purpose of obtaining business or favorable treatment in securing
business.
|
|
2.36
|
Brokers.
The Company, its Subsidiaries and the Seller have not agreed or become
obligated to pay, or has taken any action that might result in any
Person
claiming to be entitled to receive, any brokerage commission, finder’s fee
or similar commission or fee in connection with any of the
Transactions.
|
8
|
2.37
|
Full
Disclosure. None
of the Transactional Agreements contains or will contain any untrue
statement of fact in all material respects relating to the Seller,
the
Company or its Subsidiaries, or the Business of the Company or its
Subsidiaries; and none of the Transactional Agreements omits or will
omit
to state any material fact necessary to make any of the representations,
warranties or other statements or information contained therein not
misleading. All of the information set forth in the Disclosure Schedule,
and all other information regarding the Company or its Subsidiaries
and
their business, condition, assets, liabilities, operations, financial
performance, net income and prospects that has been furnished to
the Buyer
or any of the Buyer’s Representatives by or on behalf of either Seller or
by any Representative of either Seller, is accurate and complete
in all
respects.
|
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF THE BUYER
The
Buyer
represents and warrants, to and for the benefit of the Seller, as
follows:
|
3.1
|
Authority;
Binding Nature of Agreements.
The Buyer has the absolute and unrestricted right, power and authority
to
enter into and perform its obligations under this Agreement, and
the
execution and delivery of this Agreement by the Buyer have been duly
authorized by all necessary action on the part of the Buyer and its
board
of directors. The Buyer has the absolute and unrestricted right,
power and
authority to enter into and perform its obligations under this Agreement
and the other Transactional Agreements, all of which have been duly
authorized by all necessary action on the part of the Buyer and its
board
of directors and/or stockholders. This Agreement constitutes the
legal,
valid and binding obligation of the Buyer, enforceable against it
in
accordance with its terms. Upon the execution and delivery of this
Agreement and the other Transactional Agreements will constitute
the
legal, valid and binding obligations of the Buyer, enforceable against
the
Buyer in accordance with their
terms.
|
|
3.2
|
Brokers.
The Buyer has not become obligated to pay, and has not taken any
action
that might result in any Person claiming to be entitled to receive,
any
brokerage commission, finder’s fee or similar commission or fee in
connection with any of the Transactions.
|
ARTICLE
IV
DISPUTE
RESOLUTION
|
4.1
|
Friendly
Negotiations. The
parties will attempt in the first instance to resolve all disputes
arising
out of or relating to this Agreement (“Disputes”)
through friendly consultations.
|
|
4.2
|
Commencement
of Arbitration. If
no mutually acceptable settlement of the dispute is made within the
sixty
(60) days from the commencement of the settlement negotiation or
if any
Party refuses to engage in any settlement negotiation, any Party
may
submit the dispute for arbitration.
|
|
4.3
|
Arbitration.
If
a Dispute is not resolved by consultations within sixty (60) days
after
one Party has served written notice on the other Party for the
commencement of such consultations, then such dispute will be finally
settled and determined by arbitration in Hong Kong under the Arbitration
Rules of the United Nations Commission on International Trade Law
by
arbitrators appointed in accordance with such rules. The arbitration
and
appointing authority will be the Hong Kong International Arbitration
Centre (“HKIAC”).
The arbitration will be conducted by a panel of three arbitrators,
one
chosen by Buyer, one chosen by Seller acting together, and the third
by
agreement of the Parties; failing agreement within 30 days of commencement
of the arbitration proceeding, the HKIAC will appoint the third
arbitrator. The proceedings will be confidential and conducted in
English.
The arbitral tribunal will have the authority to grant any equitable
and
legal remedies that would be available in any judicial proceeding
instituted to resolve a disputed matter, and its award will be final
and
binding on the parties. The arbitral tribunal will determine how
the
parties will bear the costs of the arbitration. Notwithstanding the
foregoing, each party will have the right at any time to immediately
seek
injunctive relief, an award of specific performance or any other
equitable
relief against the other party in any court or other tribunal of
competent
jurisdiction. During the pendency of any arbitration or other proceeding
relating to a Dispute between the parties, the parties will continue
to
exercise their remaining respective rights and fulfill their remaining
respective obligations under this Agreement, except with regard to
the
matters under dispute.
|
9
ARTICLE
V
MISCELLANEOUS
PROVISIONS
|
5.1
|
Further
Assurances. Each
Party will execute and/or cause to be delivered to each other Party
such
instruments and other documents, and will take such other actions,
as such
other Party may reasonably request (prior to, at or after the Closing)
for
the purpose of carrying out or evidencing any of the
Transactions.
|
|
5.2
|
Survival.
The
representations, warranties, covenants and agreements made herein
shall
survive any investigation made by Buyer and the closing of the
Transactions. All statements as to factual matters contained in any
certificate or other instrument delivered by or on behalf of the
Seller
pursuant hereto in connection with the Transactions shall be deemed
to be
representations and warranties by the Seller solely as of the date
of such
certificate or instrument.
|
|
5.3
|
Fees
and Expenses.
Each
Party will bear its own fees and expenses incurred in connection
with the
negotiation, execution and performance of its obligations under the
Transactional Agreements.
|
|
5.4
|
Notices.
Any notice or other communication required or permitted to be delivered
to
any Party will be in writing and will be deemed properly delivered,
given
and received upon dispatch by hand, registered mail, courier or express
delivery service with receipt confirmed by signature of the addressee,
to
the address set forth beneath the name of such Party below (or to
such
other address as such Party may specify in a written notice given
to the
other Parties):
|
|
If
to Seller:
|
Daykeen
Group Limited
Address:
19th
Floor,
Xxxxxxx House, Nos. 00-000, Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx
Contact
Person: Xxx Xxxx
|
|
|
If
to the Buyer:
|
China
Longyi Group International holdings Limited
Address:
8/F East Area, Century Golden Resources Business Center, 00 Xxxxxxx
Xxxx,
Xxxxxxx Xxxxxxxx
Xxxxxxx,
Xxxxx, 000000
Contact
Person: Xxx Xxxx
|
|
5.5
|
Time
of The Essence. Time
is of the essence of this
Agreement.
|
|
5.6
|
Headings
and Usage.
The underlined headings contained in this Agreement are for convenience
of
reference only, will not be deemed to be a part of this Agreement
and will
not be referred to in connection with the construction or interpretation
of this Agreement. For purposes of this Agreement: (a)
the words “include” and “including” will be taken to include the words,
“without limitation;” (b)
a
Person will be deemed to have “knowledge” of a particular fact or other
matter if any Representative of such Person has knowledge of such
fact or
other matter; and (c)
whenever the context requires, the singular number will include the
plural, and vice versa; and each of the masculine, feminine and neuter
genders will refer to the others.
|
|
5.7
|
Counterparts.
This Agreement may be executed in several counterparts, each of which
will
constitute an original and all of which, when taken together, will
constitute one agreement.
|
|
5.8
|
Governing
Law.
This Agreement, including all matters of construction, validity and
performance, will in all respects be governed by, and construed in
accordance with, the laws of Hong Kong (without giving effect to
principles relating to conflict of laws). This Agreement is written
in
English and the English language will govern this
Agreement.
|
10
|
5.9
|
Successors
and Assigns; Parties in Interest. Except
as otherwise expressly provided herein, the provisions hereof shall
inure
to the benefit of, and be binding upon, the successors, assigns,
heirs,
executors and administrators of the parties hereto and shall inure
to the
benefit of and be enforceable by each Person who shall be a holder
of the
Shares from time to time.
|
|
5.10
|
Assignment.
Neither Party may assign any of its rights or delegate any of their
obligations under this Agreement without the other Party’s prior written
consent.
|
|
5.11
|
Amendments.
This Agreement may not be amended, modified, altered or supplemented
other
than by means of a written instrument duly executed and delivered
on
behalf of all Parties.
|
|
5.12
|
Severability.
In
case any provision of the Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
|
|
5.13
|
Entire
Agreement.
The Transactional Agreements set forth the entire understanding of
the
parties relating to the subject matter thereof and supersede all
prior
agreements and understandings among or between any of the parties
relating
to the subject matter thereof.
|
[Remainder
of Page Intentionally Left Blank]
11
In
Witness Whereof,
the
Parties have caused this Share Purchase Agreement to be executed and delivered
as of the date first set forth above.
|
“SELLER”
Daykeen
Group Limited
By:
/s/
Xxx Xxxx
Name:
Xxx Xxxx
Title:
Chairman
|
“BUYER”
China
Longyi Group International holdings Limited
By:
/s/
Xxx Xxxx
Name:
Xxx Xxxx
Title:
Chief Executive Officer
|
|
Exhibit
A
|
Certain
Definitions
|
|
Schedule
I
|
Form
of Payment Instructions
|
|
Schedule
II
|
Form
of Receipt
|
|
Schedule
III
|
Form
of Instrument of Transfer and Sold and Bought Notes
|
|
Schedule
IV
|
Disclosure
Letter
|
12
EXHIBIT
A
CERTAIN
DEFINITIONS
For
purposes of the Agreement (including this Exhibit A):
Agreement.“Agreement”
means
the Stock Purchase Agreement to which this Exhibit
A is
attached (including the Disclosure Schedule), as it may be amended from time
to
time.
“Adverse
Change”
means,
with respect to the Company, that:
(a) there
has
not been any adverse change in, and no event has occurred that might have an
adverse effect on, the business, condition, assets, liabilities, operations,
financial performance, net income or prospects of the Company;
(b) there
has
not been any loss, damage or destruction to, or any interruption in the use
of,
any of the assets of the Company (whether or not covered by
insurance);
(c) the
Company has not (i) declared, accrued, set aside or paid any dividend or made
any other distribution in respect of any shares of capital stock or other
securities, or (ii) repurchased, redeemed or otherwise reacquired any shares
of
capital stock or other securities;
(d) the
Company has not purchased or otherwise acquired any asset from any other Person,
except for supplies acquired by the Company in the ordinary course of business;
(e) the
Company has not leased or licensed any asset from any other Person;
(f) the
Company has not made any capital expenditure;
(g) the
Company has not sold or otherwise transferred, or leased or licensed, any asset
to any other Person;
(h) the
Company has not written off as uncollectible, or established any extraordinary
reserve with respect to, any account receivable or other
indebtedness;
(i) the
Company has not made any loan or advance to any other Person;
(j) the
Company has not (i) established or adopted any Employee Benefit Plan, or (ii)
paid any bonus or made any profit sharing or similar payment to, or increased
the amount of the wages, salary, commissions, fees, fringe benefits or other
compensation or remuneration payable to, any of its directors, officers,
employees or independent contractors;
(k) no
Contract by which the Company or any of the assets owned or used by the Company
is or was bound, or under which the Company has or had any rights or interest,
has been amended or terminated;
(l) the
Company has not incurred, assumed or otherwise knowingly become subject to
any
Liability, other than accounts payable (of the type required to be reflected
as
current liabilities in the “liabilities” column of a balance sheet prepared in
accordance with applicable GAAP) incurred by the Company in bona fide
transactions entered into in the ordinary course of business;
(m) the
Company has not discharged any Encumbrance or discharged or paid any
indebtedness or other Liability, except for accounts payable that (i) are
reflected as current liabilities in the “liabilities” column of the Unaudited
Interim Balance Sheet or have been incurred by the Company since Financial
Statement Date, in bona fide transactions entered into in the ordinary course
of
business, and (ii) have been discharged or paid in the ordinary course of
business;
1
(n) the
Company has not forgiven any debt or otherwise released or waived any right
or
claim;
(o) the
Company has not changed any of its methods of accounting or accounting practices
in any respect;
(p) the
Company has not entered into any transaction or taken any other action outside
the ordinary course of business; and
(q) the
Company has not agreed, committed or offered (in writing or otherwise) to take
any of the actions referred to in clauses “(c)” through “(p)”
above.
“Adverse
Effect” means:
(i) to
contravene, conflict with or result in a violation of any Legal Requirement
or
any Order to which any of the Stockholders or the Company, or any of the assets
of the Company, is subject;
(ii) to
cause
any of the Shares to be reassessed or revalued by any taxing authority or other
Governmental Body;
(iii) to
contravene, conflict with or result in a violation of any of the terms or
requirements of any Governmental Authorization that is to be included in the
Shares or is held by the Company or any employee of the Company;
(iv) to
contravene, conflict with or result in a violation or breach of, or result
in a
default under, any provision of any Contract;
(v) to
give
any Person the right to (i) declare a default or exercise any remedy under
any
Contract, (ii) accelerate the maturity or performance of any Contract, or (iii)
cancel, terminate or modify any Contract; or
(vi) to
result
in the imposition or creation of any Encumbrance upon or with respect to any
of
the Shares.
“Beijing
SOD”
is
defined in the Recitals.
“Best
Efforts” means
the
efforts that a prudent Person desiring to achieve a particular result would
use
in order to ensure that such result is achieved as expeditiously as
possible.
“Business”
means
the business of the
Company and its Subsidiaries as
carried out at the date of this Agreement.
“Buyer”
is
defined in the Recitals.
“Chongqing
SOD”
is
defined in the Recitals.
“Closing”
is
defined in Section
1.3.
“Closing
Date”
means
the time and date as of which the Closing actually takes place.
2
“Consent”
means
any approval, consent, ratification, permission, waiver or authorization
(including any Governmental Authorization).
“Company”
is
defined in the Recitals.
“Company
Contract” means
any
Contract: (a) to which the Company
or any of its Subsidiaries is
a
party; (b) by which the Company
or any of its Subsidiaries or
any of
their assets is or may become bound or under which they have, or may become
subject to, any obligation; or (c) under which the Company
or any of its Subsidiaries has
or
may acquire any right or interest.
“Contract”
means
any
written, oral, implied or other agreement, contract, understanding, arrangement,
instrument, note, guaranty, indemnity, representation, warranty, deed,
assignment, power of attorney, certificate, purchase order, work order,
insurance policy, benefit plan, commitment, covenant, assurance or undertaking
of any nature.
“Disclosure
Schedule” means
the
schedule (dated as of the date of the Agreement) delivered to the Buyer on
behalf of the Seller, a copy of which is attached to the Agreement and
incorporated in the Agreement by reference.
“Disputes”
is
defined in Section
4.1
“Effective
Date” is
the
date first set forth in the Agreement.
“Employee
Benefit Plan”
means
any plan, scheme, fund or arrangement funded in whole or in part by, and/or
managed by or on behalf of the Company for the benefit of the employees of
Company.
“Encumbrance” means
any
lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance,
equity, trust, equitable interest, claim, preference, right of possession,
lease, tenancy, license, encroachment, covenant, infringement, interference,
Order, proxy, option, right of first refusal, preemptive right, community
property interest, legend, defect, impediment, exception, reservation,
limitation, impairment, imperfection of title, condition or restriction of
any
nature (including any restriction on the transfer of any asset, any restriction
on the receipt of any income derived from any asset, any restriction on the
use
of any asset and any restriction on the possession, exercise or transfer of
any
other attribute of ownership of any asset).
“Entity”
means
any corporation (including any non-profit corporation), general partnership,
limited partnership, limited liability partnership, joint venture, estate,
trust, cooperative, foundation, society, political party, union, company
(including any limited liability company or joint stock company), firm or other
enterprise, association, organization or entity.
“GAAP”
means
generally accepted accounting principles consistently applied during the
relevant period.
Governmental
Authorization.“Governmental
Authorization” means any: (a) permit, license, certificate,
franchise, concession, approval, consent, ratification, permission, clearance,
confirmation, endorsement, waiver, certification, designation, rating,
registration, qualification or authorization issued, granted, given or otherwise
made available by or under the authority of any Governmental Body or pursuant
to
any Legal Requirement; or (b) right under any Contract with any Governmental
Body.
Governmental
Body.“Governmental
Body” means any: (a) nation, principality, state, commonwealth,
province, territory, county, municipality, district or other jurisdiction of
any
nature; (b) federal, state, local, municipal, foreign or other government;
(c)
governmental or quasi-governmental authority of any nature (including any
governmental division, subdivision, department, agency, bureau, branch, office,
commission, council, board, instrumentality, officer, official, representative,
organization, unit, body or Entity and any court or other tribunal); (d)
multi-national organization or body; or (e) individual, Entity or body
exercising, or entitled to exercise, any executive, legislative, judicial,
administrative, regulatory, police, military or taxing authority or power of
any
nature.
3
“Financial
Statement Date”
means
June 30, 2007.
“Financial
Statements” is
defined in Section
2.9.
“Indemnitees”
means
the
following Persons: (a) the Buyer; (b) the Buyer’s current and future affiliates,
including [ • ]; (c) the respective Representatives of the Persons referred to
in clauses “(a)” and “(b)” above; and (d) the respective successors and assigns
of the Persons referred to in clauses “(a)”, “(b)” and “(c)” above.
“Legal
Requirement” means
any
federal, state, local, municipal, foreign or other law, statute, legislation,
constitution, principle of common law, resolution, ordinance, code, edict,
decree, proclamation, treaty, convention, rule, regulation, ruling, directive,
pronouncement, requirement, specification, determination, decision, opinion
or
interpretation issued, enacted, adopted, passed, approved, promulgated, made,
implemented or otherwise put into effect by or under the authority of any
Governmental Body.
“Liability”
means
any
debt, obligation, duty or liability of any nature (including any unknown,
undisclosed, unmatured, unaccrued, unasserted, contingent, indirect,
conditional, implied, vicarious, derivative, joint, several or secondary
liability), regardless of whether such debt, obligation, duty or liability
would
be required to be disclosed on a balance sheet prepared in accordance with
generally accepted accounting principles and regardless of whether such debt,
obligation, duty or liability is immediately due and payable.
“Order”
means
any: (a) order, judgment, injunction, edict, decree, ruling, pronouncement,
determination, decision, opinion, verdict, sentence, subpoena, writ or award
issued, made, entered, rendered or otherwise put into effect by or under the
authority of any court, administrative agency or other Governmental Body or
any
arbitrator or arbitration panel; or (b) Contract with any Governmental Body
entered into in connection with any Proceeding.
“Person”
means
any
individual, Entity or Governmental Body.
“Purchase
Price”
is
defined in Section
1.2.
“Proceeding”
means
any action, suit, litigation, arbitration, proceeding (including any civil,
criminal, administrative, investigative or appellate proceeding and any informal
proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination
or investigation commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental Body or any arbitrator or arbitration
panel.
“Proprietary
Asset” means
any
patent, patent application, trademark (whether registered or unregistered and
whether or not relating to a published work), trademark application, trade
name,
fictitious business name, service xxxx (whether registered or unregistered),
service xxxx application, copyright (whether registered or unregistered),
copyright application, maskwork, maskwork application, trade secret, know-how,
customer list, franchise, system, computer software, invention, design,
blueprint, engineering drawing, proprietary product, technology, proprietary
right or other intellectual property right or intangible asset.
“RMB”
means
Renminbi, the legal currency of China
“Related
Party” -
each of
the following is a “Related Party”: (a) each individual who is, or who has at
any time been, an officer of the Company; (b) each member of the family of
each
of the individuals referred to in clause “(a)” above; and (c) any Entity (other
than the Company) in which any one of the individuals referred to in clauses
“(a)” and “(b)” above holds or held (or in which more than one of such
individuals collectively hold or held), beneficially or otherwise, a controlling
interest or a material voting, proprietary or equity interest.
“Representatives”
means
officers, directors, employees, agents, attorneys, accountants, advisors and
representatives.
“Scheduled
Closing Time”
means
the time and date as of which the Closing is scheduled to take place pursuant
to
Section
1.3.
4
“Securities
Act” means
the
United States Securities Act of 1933, as amended.
“Shares”
is
defined in Section
1.1.
“Subsidiaries”
is
defined in Section
2.6.
“Tax”
means
any tax (including any income tax, franchise tax, capital gains tax, estimated
tax, gross receipts tax, value-added tax, surtax, excise tax, ad valorem tax,
transfer tax, stamp tax, sales tax, use tax, property tax, business tax,
occupation tax, inventory tax, occupancy tax, withholding tax or payroll tax),
levy, assessment, tariff, impost, imposition, toll, duty (including any customs
duty), deficiency or fee, and any related charge or amount (including any fine,
penalty or interest), that is, has been or may in the future be
(a) imposed, assessed or collected by or under the authority of any
Governmental Body, or (b) payable pursuant to any tax-sharing agreement or
similar Contract.
“Tax
Return”
means
any return (including any information return), report, statement, declaration,
estimate, schedule, notice, notification, form, election, certificate or other
document or information that is, has been or may in the future be filed with
or
submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection or payment
of
any Tax or in connection with the administration, implementation or enforcement
of or compliance with any Legal Requirement relating to any Tax.
“Transactional
Agreements” means:
(a) this Agreement; and (b) all other agreements necessary to complete the
transactions contemplated by the Agreement.
“Transactions”
means
the
execution and delivery of the respective Transactional Agreements, and all
of
the transactions contemplated by the respective Transactional Agreements.
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