Exhibit 10.2
PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of August 17, 2004 (this
"Agreement"), by and between Jade Profit Investment Limited, a British Virgin
Islands limited liability corporation (the "Buyer"), and Hainan Fuyuan
Investment Company Limited, a People's Republic of China limited liability
corporation (the "Seller").
RECITALS
WHEREAS, the Buyer owns 84.42% of the equity interest of Hainan Quebec
Ocean Fishing Company Limited, a People's Republic of China limited liability
corporation ("HQ"); and
WHEREAS, the Seller owns the remaining 15.58% equity interest of HQ
(the "Minority Interest"); and
WHEREAS, the Seller desires to sell to the Buyer and the Buyer desires
to purchase from the Seller, all of the Minority Interest for the aggregate
purchase price of US$ 5.7 million, on the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties to this
Agreement do hereby agree as follows:
ARTICLE I
SALE AND PURCHASE OF THE MINORITY INTEREST
1.1 Sale and Purchase of the Minority Interest. Subject to the terms
and conditions of this Agreement, the Seller shall sell to the Buyer, and the
Buyer shall purchase from the Seller, the Minority Interest at the Closing (as
defined in Article IV of this Agreement).
1.2 The Purchase Price. The total consideration for the purchase of the
Minority Interest pursuant to this Agreement shall be the sum of US$ 5.7 million
(the "Purchase Price"). The Buyer shall pay the Purchase Price to the Seller at
the Closing, by wire transfer using the Seller's wire transfer instructions
previously provided to the Seller by the Buyer, or in other immediately
available funds. All sums payable by the Buyer under this Agreement shall be
paid in full without set-off or counterclaim or any condition, unless otherwise
expressly instructed in writing by the Seller, free and clear of any tax or
other deductions or withholdings of any nature.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE MINORITY INTEREST AND THIS AGREEMENT
The Seller hereby represents and warrants to the Buyer that:
2.1 Title to the Minority Interest. The Seller has good and marketable
title to and is the legal and beneficial owner of the Minority Interest and,
upon consummation of the sale and purchase of the Minority Interest contemplated
herein, the Buyer will acquire from the Seller good and marketable title to all
of the Minority Interest, free and clear of all liens, claims, charges and
encumbrances of any kind whatsoever, except restrictions on transfer under any
applicable securities laws.
2.2 Due Organization. Seller is a limited liability corporation duly
organized, validly and legally existing under the laws of the People's Republic
of China. As of the date of this Agreement, the Seller has not been dissolved.
2.3 Corporate Authority. The Seller has all requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the Seller of
this Agreement and the consummation of all transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of the Seller and no
other corporate proceedings on the part of the Seller are necessary to authorize
or to consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed by the Seller and this Agreement constitutes a valid
and binding agreement of the Seller, enforceable against it in accordance with
its terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights; and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
2.4 HQ Authorization. All requisite action on the part of HQ, to the
extent necessary for the authorization of any documents to be produced, executed
or delivered by HQ pursuant to this Agreement, if any, and the sale and delivery
of the Minority Interest pursuant hereto, has been taken.
2.5 Consents Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) violate,
result in a breach of any of the terms or provisions of, constitute a default
(or any event which, with the giving of notice or the passage of time or both,
would constitute a default) under, result in the acceleration of any
indebtedness under or performance required by, result in any right of
termination of, increase any amounts payable under, decrease any amounts
receivable under, change any other rights pursuant to, or conflict with, any
material agreement, trust, indenture, mortgage, loan agreement or other
instrument to which the Seller is a party or by which any of the properties of
the Seller is bound, the organizational documents of the Seller, or any law,
rule, regulation, judgment, decree, order or award of any court, governmental
body or arbitrator applicable to the Seller; or (ii) require any consent,
approval, authorization or permit of or from, or filing with or notification to,
any court, arbitrator, governmental authority or other regulatory or
administrative agency, authority, commission or instrumentality, domestic or
foreign, federal, state or local.
2.6 No Violation. To the knowledge of Seller, this Agreement does not
violate, result in a breach of any of the terms or provisions of, constitute a
default (or any event which, with the giving of notice or the passage of time or
both, would constitute a default) under, result in the acceleration of any
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indebtedness under or performance required by, result in any right of
termination of, increase any amounts payable under, decrease any amounts
receivable under, change any other rights pursuant to, or conflict with, any
material agreement, trust, indenture, mortgage, loan agreement or other
instrument to which the Seller is a party or by which any of the properties of
HQ is bound, the organizational documents of HQ, or any law, rule, regulation,
judgment, decree, order or award of any court, governmental body or arbitrator
applicable to HQ.
2.7 Compliance with Laws. The Seller has obtained all necessary permits
and other authorizations or orders of exemption as may be necessary or
appropriate under all applicable laws (including, without limitation, securities
laws) in connection with the sale of the Minority Interest to the Buyer pursuant
to the terms of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer hereby represents and warrants to the Seller that:
3.1 Due Organization. The Buyer is a limited liability corporation duly
organized and validly existing under the laws of the British Virgin Islands,
with all requisite power and authority to own its properties and to carry on its
business in the manner now being conducted.
3.2 Corporate Authority. The Buyer has all requisite power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the Buyer of
this Agreement and the consummation of all transactions contemplated hereby have
been duly and validly authorized by all actions necessary to authorize or to
consummate the transaction contemplated hereby. This Agreement has been duly and
validly executed and delivered by the Buyer and this Agreement constitutes a
valid and binding agreement of the Buyer, enforceable against it in accordance
with its terms except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights; and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
3.3 Consents. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will (i) violate,
result in a breach of any of the terms or provisions of, constitute a default
(or any event which, with the giving of notice or the passage of time or both,
would constitute a default) under, result in the acceleration of any
indebtedness under or performance required by, result in any right of
termination of, increase any amounts payable under, decrease any amounts
receivable under, change any other rights pursuant to, or conflict with, any
material agreement, trust, indenture, mortgage, loan agreement or other
instrument to which the Buyer is a party or by which any of the properties of
the Buyer is bound, the organizational documents of the Buyer, or any law, rule,
regulation, judgment, decree, order or award of any court, governmental body or
arbitrator applicable to the Buyer; or (ii) require any consent, approval,
authorization or permit of or from, or filing with or notification to, any
court, arbitrator, governmental authority or other regulatory or administrative
agency, authority, commission or instrumentality, domestic or foreign, federal,
state or local.
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ARTICLE IV
CLOSING OF PURCHASE OF THE MINORITY INTEREST; DELIVERY
4.1 Closing. Closing (the "Closing") of the sale and purchase of the
Minority Interest shall occur on August 17, 2004, or on a different date
mutually agreed by the parties (the "Closing Date"), at such time and location
as the parties may agree. Subject to the terms and conditions of this Agreement,
upon the basis of the representations, warranties and agreements herein
contained, the Seller shall sell, convey and transfer the Minority Interest to
the Buyer upon receipt of payment of the Purchase Price pursuant to Section 1.2
hereof.
4.2 Delivery of the Certificate of Transfer of Minority Interest. At
the Closing, the Buyer shall deliver to the Seller the Purchase Price, and the
Seller shall deliver to the Buyer a certificate of transfer of the Minority
Interest evidencing the transfer thereof to the Buyer, substantially in the form
of Exhibit A attached hereto.
ARTICLE V
CONDITIONS OF THE SELLER'S OBLIGATIONS
5.1 At the Closing Date, (i) the representations and warranties of the
Buyer contained in this Agreement shall be true and correct with the same effect
as if made on and as of the Closing Date; (ii) the Buyer shall have performed
all of its obligations hereunder and satisfied all the conditions on its part to
be satisfied at or prior to the Closing Date; (iii) no preliminary or permanent
injunction or other order or decree by any court of competent jurisdiction, law
or regulation prohibiting or otherwise restraining the sale and purchase of the
Minority Interest contemplated hereunder shall be in effect; and (iv) such sale
and purchase of the Minority Interest shall comply with the terms of this
Agreement and all applicable laws and regulations.
ARTICLE VI
CONDITIONS OF THE BUYER'S OBLIGATIONS
6.1 At the Closing Date, (i) the representations and warranties of the
Seller contained in this Agreement shall be true and correct with the same
effect as if made on and as of the Closing Date; (ii) the Seller shall have
performed all of its obligations hereunder and satisfied all the conditions on
its part to be satisfied at or prior to the Closing Date, (iii) no preliminary
or permanent injunction or other order or decree by any court of competent
jurisdiction, law or regulation prohibiting or otherwise restraining the sale
and purchase of the Minority Interest contemplated hereunder shall be in effect;
and (iv) such sale and purchase of the Minority Interest shall comply with the
terms of this Agreement and all applicable laws and regulations.
ARTICLE VII
MISCELLANEOUS
7.1 Termination. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned at any time (i) by the mutual consent of
the Seller and the Buyer; (ii) by the Seller, if the Buyer breaches in any
material respect any of its representations, warranties, covenants or agreements
contained in this Agreement; (iii) by the Buyer, if the Seller breaches in any
material respect any representations, warranties, covenants or agreements
contained in this Agreement; or (iv) by either the Seller or the Buyer if any of
the conditions to the Closing is not fulfilled or waived by the party for whose
benefit the conditions exist on or prior to the Closing Date.
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7.2 Binding Effect. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and to
their respective successors and permitted assigns.
7.3 Further Assurances. Each party agrees that it shall cooperate with
the other party to facilitate the consummation and implementation of the
transactions contemplated by this Agreement in an expeditious manner. Each party
agrees to execute such further and other documents, certificates, deeds or other
instruments as may be reasonably required or requested by the other party.
7.4 Governing Law. This Agreement shall be governed and construed in
accordance with the internal laws of the State of New York, without regard to
its conflict of laws principles.
7.5 Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, or the interpretation, breach, termination or
validity hereof, shall first be resolved through friendly consultation, if
possible. Such consultation shall begin immediately after either Seller or Buyer
has delivered to the opposite party a written request for such consultation (the
"Consultation Date"). If the dispute cannot be resolved within 30 days following
the Consultation Date, the dispute shall be submitted to arbitration upon the
request of either Party, with written notice to the other Party.
(b) Arbitration shall be conducted in New York, New York under
the auspices of the American Arbitration Association ("AAA") in accordance with
the commercial arbitration rules and supplementary procedures for international
commercial arbitration of the AAA. There shall be three arbitrators--one
arbitrator shall be chosen by each party to the dispute and those two
arbitrators shall choose the third arbitrator. All arbitration proceedings shall
be conducted in English. Each party to the dispute shall cooperate with the
other in making full disclosure of and providing complete access to all
information and documents requested by the other party to the dispute in
connection with the arbitration proceedings. Arbitration shall be the sole,
binding, exclusive and final remedy for resolving any dispute between the
parties thereto; either party thereto may apply to any court of competent
jurisdiction in the State of New York for enforcement of any award granted by
the arbitrators.
(c) During the period when a dispute is being resolved, except
for the matter being disputed, the Parties shall in all other respects continue
to abide by the terms of this Agreement.
7.6 Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the Buyer and the Seller with respect to the subject
matter hereof. This Agreement supersedes all prior agreements and
understandings, written or oral, between the parties relating to the subject
matter hereof.
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7.7 Amendment. Any amendment to this Agreement shall be made in writing
and shall be signed by duly authorized representatives of both parties hereto.
7.8 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner, to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
7.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which is deemed to be an original, but all of which are
one and the same agreement, it being understood that each party hereto need not
sign the same counterpart. Facsimile copies of original signatures by either
party hereto shall be deemed to be originals of such signatures.
7.10 No Liability for Losses. The Seller shall not be liable to the
Buyer for any loss of profits, loss of revenue, lost opportunity, lost business
or other losses, including indirect or consequential losses.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the date
first above written.
JADE PROFIT INVESTMENT LIMITED
By: /s/ Xxxxxxx Sporns
---------------------------
Name: President
Title: CEO
HAINAN FUYUAN INVESTMENT
COMPANY LIMITED
By: /s/ Fu Xxxxx Xxxx
---------------------------
Name: Fu Xxxxx Xxxx
Title: President
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EXHIBIT A
CERTIFICATE OF TRANSFER
August 17, 2004
Gentlemen:
Reference is made to that certain Purchase Agreement, dated as of
August 17, 2004 (the "Purchase Agreement"), between Jade Profit Investment
Limited, a British Virgin Islands limited liability corporation ("Jade"), and
the undersigned. Capitalized terms used herein which are defined in the Purchase
Agreement shall have the same meanings when used herein as therein defined.
The undersigned hereby acknowledges receipt from Jade of immediately
available funds in the amount of US$5.7 million, constituting the full payment
of the Purchase Price for the Minority Interest. The undersigned hereby sells,
conveys, transfers and delivers to Jade the Minority Interest, pursuant to the
terms of the Purchase Agreement.
Please acknowledge receipt of the Minority Interest below.
Very truly yours,
HAINAN FUYAN INVESTMENT
COMPANY LIMITED
By:
------------------------------------
Name: Fu Xxxxx Xxxx
Title: President
Pursuant to the Purchase Agreement, Jade hereby acknowledges receipt of
the Minority Interest transferred thereto by Hainan hereunder.
JADE PROFIT INVESTMENT LIMITED
By:
-----------------------------------
Name: Xxxxxxx Sporns
Title: CEO
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