REVISED AND RESTATED PLAN OF EXCHANGE AGREEMENT
THIS REVISED AND RESTATED PLAN OF EXCHANGE AGREEMENT made this 25thday of
July2008, as amended February 2, 2009, by and among ZHONGKE BIOTEC AGRICULTURE
(USA) COMPANY, a Nevada corporation ("Nevada Zhongke"), and SUCCESS MATER
INVESTMENT LIMITED, a Hong Kong holding company ("Success") and its
subsidiaries, including SHAANXI ZHONGKE SPACEFLIGHT AGRICULTURE DEVELOPMENT
STOCK CO., LTD. , A P.R.CHINA'S CORPORATION ("Zhongke"), and majority
shareholders of Success, SHAANXI QIN YUAN AGRICULTURE SCIENTIFIC DEVELOPMENT
LIMITED. ("QY") (all of which shall be collectively referred to as "Success").
BACKGROUND
Success Mater Investment Limited ("Success" or the "Company") was incorporated
on September 17, 2004 in Hong Kong under the Companies Ordinance as a limited
Liability Company as a wholly owned foreign enterprise ("WOFE"). The Company
was formed for the purpose of seeking and consummating a merger or acquisition
with a business entity.
Shaanxi Zhongke Spaceflight Agriculture Development Stock Co., Ltd. is a
corporation organized under the laws of the P.R. China Approved by the Shaanxi
provincial government on May 18, 2004, number 2004 No.40. Zhongke is now held
by Shaanxi Qin Yuan Agriculture Scientific Development Limited ("QY") with
majority of 98%. Its offices are located in Xian, Shaanxi Province, Peoples
Republic of China.
Shaanxi Qin Yuan Agriculture Scientific Development Limited ("QY") is
incorporated in 2007 under PR China Law, a vehicle for the purpose of
completing Success's merger or acquisition. At the time of execution of this
Agreement, QY is 100% owned by the Success, and QY owns 98% of the equity of
Zhongke.
Zhongke is a diversified business stock company, mainly dealing with the
research of breeding, producing, vending space seeds, space Chinese herbals and
the green foods. It currently is engaged in cultivation of a variety of
horticultural crops, flowers and vegetation and either holds or is in the
process of obtaining patents on a variety of genetically mutated space bred
crops, tissues and creams. The Company is also exploring a neutraceutical
equivalent to the class of statin drugs currently utilized in the treatment of
heart disease.
Nevada Zhongke is a Nevada corporation organized on October 25, 2007.
IT IS THEREFORE AGREED:
ARTICLE I
PLAN OF EXCHANGE OF SECURITIES
Nevada Zhongke is a Nevada corporation that has authorized 300,000,000 shares
of stock, par value $0.001, 250,000,000 of which are common stock, par value
$0.001, $0.001 par value. Immediately prior to the exchange Nevada Zhongke has
issued and outstanding1,001,000 shares on a fully diluted basis are currently
outstanding. Nevada Zhongke also has authorized 50.000,000 convertible
preferred shares, $0.001 par value, of which none have been issued.
The parties hereby propose to have Nevada Zhongke acquire all of the issued and
outstanding shares of Success for shares of Nevada Zhongke common stock in
exchange for the issuance of 84,999,000 shares (the "Shares") representing
98.8% of the total issued and outstanding, which shares shall be issued to
Success Shareholders of record as of the date of this Agreement or its
designated beneficiaries. The share exchange shall be on the following terms:
SECTION 1.1 PLAN OF EXCHANGE. The parties intend to issue sufficient
securities such that Success Shareholders shall become the majority holder of
securities and therefore control the operations of Nevada Zhongke and the
current Success Shareholders shall effectively acquire voting and operational
control of Nevada Zhongke through a "reverse acquisition." by way of WOFE set
forth in Definition and Clause 1.2 and 2.3 hereafter.
(a) Share Exchange. Nevada Zhongke shall issue 84,999,000 new
shares directly to the shareholders of Success, all of whom are citizens
and residents of the Peoples Republic of China. In exchange, Success
shall transfer to Nevada Zhongke shares totaling 100% of Success, which
in turn shall own at least 98% of Zhongke. To the extent permissible
under the laws of the People's Republic of China, the 84,999,000 shares
issued to Success shall be held in trust for the benefit of the
shareholders of Zhongke and the shares shall be divided among the
Zhongke shareholders on the basis of their current proportion of Zhongke
shares.
(b) Increase in Authorized Capital. Prior to or contemporaneously
with the closing of this Agreement, Nevada Zhongke will increase its
capitalization to 200,000,000 shares of common stock.
(c) Nevada Zhongke has caused 1,000,000 shares of newly issued common
voting shares to be issued from the authorized but unissued shares of
Nevada Zhongke at the direction of FirstEver Holdings, Ltd., a Hong
Kong corporation or their designees in satisfaction of obligations of
Success for legal and consulting fees incurred prior to closing. The
shares shall be afforded "piggyback" registration rights whereby the
shares will be registered by Nevada Zhongke at Nevada Zhongke expense if
Nevada Zhongke registers any other shares. During the first 3 years
following the closing, the 1,000,000 shares issued to First Ever or its
designees shall not be reverse split or otherwise diluted without first
obtaining written consent from First Ever or the designees.
(c) Registration of Securities. Immediately after the closing of this
transaction, Nevada Zhongke will undertake to register up to 2,000,000
of the shares issued by the exchange under the Securities Act of 1933,
as amended and/or the Securities Exchange Act of 1934, as amended. It is
the intention of the parties to take steps necessary to permit trading
of the securities in the OTC-BB or other stock exchange. The Company
will engage experienced securities counsel to advise as to the
appropriate forms and compliance for registration and trading of the
securities.
SECTION 1.2 COMPLIANCE WITH CHINESE "WOFE" REGULATIONS. The parties
acknowledge that approval from Xi'an City and/or Shaanxi provincial governments
in the PRC may be required for transfer by Success to Nevada Zhongke and
therefore give advance consent to nominal changes needed for such approval.
Provided, however, that the nominal transfer shall not alter the valuation or
operations of Zhongke. In that event, all of Zhongke's rights,
responsibilities and benefits under this Agreement shall be assigned to and
assumed by the WOFE entity. All PRC approvals shall be obtained by as quickly
as possible.
SECTION 1.3 EXEMPTIONS FROM REGISTRATION. The parties hereto intend
that the Nevada Zhongke Shares to be issued to the beneficiaries Zhongke
Shareholders shall be exempt from the registration requirements of the
Securities Act pursuant to Regulation S, Section 4(2) of the Securities Act and
the rules and regulations promulgated there under. The parties believe these
transactions are private placements within the meaning of the rules and
regulations under the Securities Act. Each of these entities separately, and
through their intermediaries, had a pre-existing relationship that had existed
for at least 30 days. Nevada Zhongke will rely upon the exemptions from
registration provided by Regulation S, Section 4(2) and Regulation D of the
Securities Act, and on comparable exemptions under the China Corporation Act
and the China Securities Act and other state and foreign laws. It is understood
that these exemptions are available because the issuances will be made to a de
minimus number of sophisticated persons, in transactions not involving a public
offering.
SECTION 1.4 BOARD OF DIRECTORS. The current Board of Directors and the
officers and directors of the Nevada Zhongke are:
Chen Min Chair
Chen Min CEO
Ao Xxxxx Xxxx President, Director
Xxxx Xxxxx Secretary
Xxxxxxx X. Xxxxxxx has served as incorporator and has been empowered to
engage in all acts required of the officers to effect the establishment of the
corporation, all of which have been completed and the incorporator has now
resigned.The Board may hold a meeting in compliance with the notice or waiver
of notice requirements of Nevada Zhongke and may then adopt resolutions fixing
the size of its Board of Directors at not less than three nor more than nine
directors, and may elect a new Board of Directors.
SECTION 1.5 CLOSING. This AGREEMENT shall become effective immediately
upon approval and adoption by the parties hereto, in the manner provided by the
law of the places of incorporation and constituent corporate documents, and
upon compliance with governmental filing requirements. Closing shall occur when
all conditions of closing have been met or are waived by the parties, including
all required government approvals. The closing of the Agreement (the "Closing")
shall take place in Charlotte, North Carolina, at the offices of attorney
Xxxxxxx Xxxxxxx immediately after all conditions have been removed or as soon
thereafter as all regulatory approvals have been obtained, or at such other
place and time as the parties may otherwise agree.
SECTION 1.6 DUE DILIGENCE. Each party shall have furnished to the other
party certain corporate and financial information to conduct its respective due
diligence. If any party determines that there is a reason not to complete the
Agreement as a result of their due diligence examination, then they must give
written notice to the other party prior to the expiration of the due diligence
examination period.
SECTION 1.7 REPRESENTATIONS AND WARRANTIES CORRECT. The representations
and warranties made by the Parties herein shall have been true and correct when
made and shall be true and correct on and as of the Closing date with the same
force and effect as though made on and as of the Closing date. All
authorizations, approvals or permits of any governmental authority or
regulatory body that are required in connection with the lawful issuance and
sale of the Nevada Zhongke Stock and the sale of Success Stock pursuant to this
Agreement shall have been duly obtained and shall be in full force and effect.
SECTION 1.8 TERMINATION. The AGREEMENT may be terminated by written
notice, at any time prior to closing, (i) by mutual consent, (ii) by either
party during the due diligence phase, (iii) by either party, in the event that
the transaction represented by this PLAN OF EXCHANGE has not been implemented
and approved by the proper governmental authorities 90 days from the date of
this Agreement, or (iv) if payments scheduled in the Escrow Agreement are not
received when occurs. In the event that termination of the PLAN OF EXCHANGE by
either or both, as provided above, the PLAN OF EXCHANGE shall become void and
there shall be no liability on the part of either party, other than as set
forth in 1(a) above.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Success, QY and Zhongke hereby represent and warrant to Nevada Zhongke that:
SECTION 2.1 ORGANIZATION. QY is a corporation duly organized validly
existing and in good standing under the laws of People's Republic of China, has
all necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and is duly qualified to do business
and is in good standing in each of the states where its business requires
qualification. Success is a holding company consisting of 100% equity of QY,
and QY has 98% equity of Zhongke, a corporation duly organized on September 8,
1988, validly existing and in good standing under the laws of the People's
Republic of China, has all necessary corporate powers to own its properties and
to carry on its business as now owned and operated by it, and is duly qualified
to do business and is in good standing in each of the states where its business
requires qualification.
SECTION 2.2 CAPITAL. The authorized capital stock of Zhongke consists
solely of 40,000,000 RMB, of which 40,000,000 shares are issued and
outstanding. All of the issued and outstanding shares of Zhongke are duly and
validly issued, fully paid and nonassessable. There are no outstanding
subscriptions, options, rights, warrants, debentures, instruments, convertible
securities or other agreements or commitments obligating Zhongke or Success
to issue or to transfer from treasury any additional shares of its capital
stock of any class. Zhongke and/ or QY and or Success shall furnish a legal
opinion to Nevada Zhongke to the effect that/natural persons own 100% of
Success's shares: NIE PINGJUN owning 55%* LI PING 15%*WANG SHENGLI 17%*LI
HUA2%*CHEN MIN1%* AO Xxxxx Xxxx 10%*
There is no other outstanding capital stock, warrants and options as of the
date of the Agreement. All of the outstanding shares of capital stock of
Zhongke and/ or QY and /or Success are validly issued, fully paid,
nonassessable and subject to no lien or restriction on transfer, except
restrictions on transfer imposed by applicable securities laws.
SECTION 2.3 SUBSIDIARIES. Zhongke has no subsidiaries other than QY and
Zhongke.
.
SECTION 2.4 AUTHORITY. The Board of Directors of Success have
authorized the execution of this Agreement and the consummation of the
transactions contemplated herein, and Success have full power and authority to
execute, deliver and perform this Agreement, and this Agreement is a legal,
valid and binding obligation of Success and is enforceable in accordance with
its terms and conditions. All shareholder approval and corporate action on the
part of Success necessary for the due authorization, execution and delivery of
this Agreement and the consummation of the transactions contemplated herein has
been or will be taken prior to the Closing date. This Agreement is a legal,
valid and binding agreement of Success, enforceable in accordance with their
terms. The execution, delivery and performance by Success of this Agreement
and the sale of Success shares will not result in any violation of or be in
conflict with, or result in a breach of or constitute a default under, any term
or provision of any Legal Requirement to which Success, Success is subject, or
any Charter or Bylaws of Success, or any Contractual Obligation to which
Success is a party or by which Success is bound.
SECTION 2.5 CORPORATE POWER. Success has all necessary power and
authority to enter into and perform this Agreement and to sell the Success
shares hereunder. Success has all necessary power and authority to own all the
properties owned by it and to carry on the businesses now conducted or
presently proposed to be conducted by it. QY, Zhongke have taken all action
necessary to authorize this Agreement and the sale of the Success shares to be
sold hereunder. The execution and delivery of this Agreement by Success and
the performance by Success of its obligations hereunder in the time and manner
contemplated will not cause, constitute or conflict with or result in (a) any
breach or violation of any of the provisions of or constitute a default under
any license, indenture, mortgage, instrument, article of incorporation, bylaw,
or other agreement or instrument to which Success is a party, or by which it
may be bound, nor will any consents or authorizations of any party other than
those hereto be required; (b) an event that would permit any party to any
agreement or instrument to terminate it or to accelerate the maturity of any
indebtedness or other obligation of Success; or (c) an event that would result
in the creation or imposition of any lien, charge or encumbrance on any asset
of Success ,Zhongke and QY.
SECTION 2.6 DIRECTORS AND OFFICERS. The names and titles of all
directors and officers of Success as of the date of this Agreement are:
Chair Ao Xxxxx Xxxx
CEO Ao Xxxxx Xxxx
SECTION 2.7 FINANCIAL STATEMENTS.Success shall furnish, upon request,
Zhongke's unaudited financial statements for the years ended June 30, 2007and
2008. The financial statements have been prepared in accordance with generally
accepted accounting principles and practices consistently followed throughout
the periods indicated, and fairly present the financial position as of the
dates of the balance sheets included in the financial statements and the
results of operations for the periods indicated. Success has engaged auditors
approved by the Public Company Accounting Oversight Board (PCAOB) and has
furnished a copy of the engagement letter to Nevada Zhongke.
SECTION 2.8 ABSENCE OF CHANGES. Since the date of Success's most
recent financial statements, there have not been any undisclosed changes in the
financial condition or operations of Success, except for changes in the
ordinary course of business, which changes have not in the aggregate been
materially adverse.
SECTION 2.9 ABSENCE OF UNDISCLOSED XXXXXXXXXXX.Xx of the date of
Success's most recent balance sheet, Success did not have any material debt,
liability or obligation of any nature, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, that is not reflected in such
balance sheet.
SECTION 2.10 TAX RETURNS. Within the times and in the manner prescribed
by law, Success has filed all federal, state and local tax returns required by
law and has paid all taxes, assessments and penalties due and payable except
for those for which returns are not yet due. The provisions for taxes, if any,
reflected in Exhibit 2.5 are adequate for the periods indicated. There are no
present disputes as to taxes of any nature payable by Success ,Zhongke and QY.
SECTION 2.11 INVESTIGATION OF FINANCIAL CONDITION.Without in any manner
reducing or otherwise mitigating the representations contained herein, Nevada
Zhongke and its legal counsel and accountants shall have the opportunity to
meet with Success's legal counsel and accountants to discuss the financial
condition of Success. Success shall make available to Nevada Zhongke all
books and records of Success , Zhongke, QY.
SECTION 2.12 PATENTS, TRADE NAMES AND RIGHTS. To the best of its
knowledge, Success is not infringing upon or otherwise acting adversely to the
right or claimed right of any person with respect to patents, trade names and
rights.
SECTION 2.13 COMPLIANCE WITH LAWS. Success has complied with, and
are not in violation of, applicable federal, state or local statutes, laws and
regulations (including, without limitation, and to the knowledge of the
officers of Success, any applicable building, zoning or other law, ordinance or
regulation) affecting its properties or the operation of its business.
SECTION 2.14 LITIGATION. Success is not a defendant to any suit,
action, arbitration or legal, administrative or other proceeding, or
governmental investigation which is pending or, to the best knowledge of
Success, threatened against or affecting Success , Zhongke or QY or its
business, assets or financial condition. Success, Zhongke and QY are not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court, department, agency or instrumentality applicable
to it. Success is not engaged in any material lawsuits to recover monies due
it.
SECTION 2.15 FULL DISCLOSURE. None of the representations and
warranties made by Success herein or in any exhibit, certificate or memorandum
furnished or to be furnished by Success, or on its behalf, contains or will
contain any untrue statement of material fact or omit any material fact the
omission of which would be misleading.
SECTION 2.16 ASSETS. Success has good and marketable title to all of its
property, free and clear of all liens, claims and encumbrances, except as
otherwise indicated in the financial statements.
SECTION 2.17 MATERIAL CONTRACTS. Success has no material contracts other
than distribution agreements, except as set forth on the financial statements
or schedules herein.
SECTION 2.18 INDEMNIFICATION OF OFFICERS AND DIRECTORS.The parties
acknowledge and agree that prior to execution of this Agreement, each party had
separately adopted resolutions and bylaws affording indemnification, to the
fullest extent permitted by law, of all officers, directors, promoters,
attorneys and other responsible persons, past or present for liability, which
arises out of or pertains to any non-intentional action or omission taken in
good faith while serving in such capacity on behalf of the Corporation. The
parties hereby agree that each shall, to the fullest extent permitted by law,
retain and maintain such indemnification provisions with respect to its
officers and directors and that each party shall hereafter continuously
maintain the fullest indemnification of officers and directors as permitted by
law.
SECTION 2.19 GENERAL. All instruments and legal and corporate
proceedings in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance and Success shall have
received copies of all documents, including records of corporate proceedings
and officers' certificates, which they may have reasonably requested in
connection therewith. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Parties on or prior to
the Closing shall have been performed or complied with and Success shall not be
in default in the performance of or compliance with any provisions of this
Agreement. Success shall have delivered to Nevada Zhongke an Officer's
Certificate from the chief executive officer or chief financial officer or
acceptable agent thereof, dated the date of the Closing date, certifying to all
representations and warranties required by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NEVADA ZHONGKE
Nevada Zhongke represents and warrants to Success, Zhongke and QY that:
SECTION 3.1 ORGANIZATION.Nevada Zhongke is a corporation duly
organized, validly existing and in good standing under the laws of Nevada, has
all necessary corporate powers to own its properties and to carry on its
business as now owned and operated by it, and is duly qualified to do business
and is in good standing in each of the states where its business requires
qualification.
SECTION 3.2 CAPITAL. The capital stock of Nevada Zhongke consists of
common voting stock, preferred stock and options to purchase stock. There are
no outstanding subscriptions, options, rights, warrants, debentures,
instruments, convertible securities or other agreements, commitments or
obligations of Nevada Zhongke to issue or to transfer from treasury any
additional shares of its capital stock of any class, except as set forth in
Section 3.2. .
(a) Common Stock. The authorized capital stock of Nevada Zhongke
consists of 70,000,000 shares of common stock, $0.01 par value of which
approximately 1,000 shares of common stock are currently issued and
outstanding.
(b) Preferred Stock. The Company has also authorized 4,000,000 shares
of Preferred Stock and no shares of Preferred Stock are issued or outstanding.
SECTION 3.3 SUBSIDIARIES.Nevada Zhongke has no other subsidiaries and
does not own any interest in any other enterprise.
SECTION 3.4 DIRECTORS AND OFFICERS. The names and titles of all
directors and officers of Nevada Zhongke as of the date of this Agreement and
to be appointed contemporaneously with the exchange are:
Chen Min CEO, President and Director
Nie Pingjun Chairman of the Board
Qiang Juzhen CFO
Pan Yi Chief Scientist
Xx. Xx Jinying Chief Scientist
Shu Jinsheng Chief Scientist
Xxxx Xxxxx Secretary
Xing Hongyi Cultivation Manager
SECTION 3.5 FINANCIAL STATEMENTS.Success has been furnished with
complete and correct copies of the following financial statements of Nevada
Zhongke (the "Nevada Zhongke Financial Statements"): (a) the audited balance
sheet of Nevada Zhongke as of December 31, 2008 (or later date) and the
respective related consolidated statements of income, retained earnings and
cash flows for the twelve month period then ended, and (b) the audited
consolidated balance sheet of Nevada Zhongke as of December 31 2008 together
with the related consolidated statements of operations, retained earnings and
cash flows for the twelve month period then ended. The Nevada Zhongke Financial
Statements have been prepared in accordance with GAAP consistently applied and
fairly and accurately present the financial condition of Nevada Zhongke at the
date thereof and the results of its operations for the period covered thereby.
All the books, records and accounts of Nevada Zhongke are accurate and
complete, are in accordance with good business practice and all laws,
regulations and rules applicable to Nevada Zhongke the conduct of its business
and accurately present and reflect all of the transactions described therein.
SECTION 3.6 CHANGES IN FINANCIAL CONDITION. Since the Balance Sheet
Date, there have occurred no events or events that, individually or in the
aggregate, have caused or will cause a Material Adverse Effect. Nevada Zhongke
has not (a) declared any dividend or other distribution on any shares of its
capital stock, (b) made any payment (other than compensation to its directors,
officers and employees at rates in effect prior to the Balance Sheet Date or
for bonuses accrued in accordance with normal practice prior to the Balance
Sheet Date) to any of its Affiliates, (c) increased the compensation, including
bonuses, payable or to be payable to any of its directors, officers, employees
or Affiliates, or (d) entered into any Contractual Obligation, or entered into
or performed any other transaction, not in the ordinary and usual course of
business and consistent with past practice, other than as specifically
contemplated by this Agreement.
SECTION 3.7 ABSENCE OF UNDISCLOSED XXXXXXXXXXX.Xx of the closing date
Nevada Zhongke does not have any liabilities or obligations, contingent or
otherwise, which are not reflected or provided for in the Distribution of
Proceeds contained in Article I. Nevada Zhongke (i) does not have any
outstanding indebtedness for borrowed money or for any other purpose and (ii)
except as reflected, is not a guarantor or otherwise contingently liable on
such indebtedness of any other Person. At closing Nevada Zhongke shall not have
any material debt, liability or obligation of any nature, whether accrued,
absolute, contingent or otherwise, and whether due or to become due.
SECTION 3.8 TAX RETURNS. At all times that the Company had operations,
Nevada Zhongke filed all federal, state and local tax and information returns
which are required to be filed by it and such returns are true and correct.
Nevada Zhongke has paid all taxes, interest and penalties, if any, reflected in
such tax returns or otherwise due and payable by it. No tax returns were filed
for the years 1999 to the present. Nevada Zhongke has no knowledge of any
material additional assessments or any basis therefore. Nevada Zhongke has
withheld or collected from each payment made to its employees the amount of all
taxes required to be withheld or collected and has paid over such amounts to
the appropriate taxing authorities. There are no present disputes as to taxes
of any nature payable to Nevada Zhongke and the Company has no actual knowledge
or notice of any returns due or any unpaid tax, lien, claim of lien, penalty,
interest, assessment or charge by a taxing authority .Any deficiencies proposed
as a result of any governmental audits of such tax returns have been paid or
settled or are being contested in good faith, and there are no present disputes
as to taxes payable by Nevada Zhongke.
SECTION 3.9 INVESTIGATION OF FINANCIAL CONDITION.Without in any manner
reducing or otherwise mitigating the representations contained herein, Success
and its legal counsel and accountants shall have the opportunity to meet with
Nevada Zhongke's legal counsel and accountants to discuss the financial
condition of Nevada Zhongke. Nevada Zhongke shall make available to Success
all books and records of Nevada Zhongke.
SECTION 3.10 PATENTS, TRADE NAMES AND RIGHTS. To the best of its
knowledge, Nevada Zhongke is not infringing upon or otherwise acting adversely
to the right or claimed right of any person with respect to any of the
foregoing.
SECTION 3.12 LITIGATION. Nevada Zhongke is not now a named or
threatened party to any suit, action, arbitration or legal, administrative or
other proceeding, or governmental investigation which is pending or, to the
best knowledge of Nevada Zhongke threatened against or affecting Nevada Zhongke
or its business, assets or financial condition. Nevada Zhongke is not in
default with respect to any order, writ, injunction or decree of any federal,
state, local or foreign court, department, agency or instrumentality applicable
to it. Nevada Zhongke is not engaged in any material lawsuits to recover
monies due it. no litigation or proceeding before, or investigation by, any
foreign, federal, state or municipal board or other governmental or
administrative agency or any arbitrator or, to Nevada Zhongke's knowledge,
threatened (nor to Nevada Zhongke's knowledge, does any basis exist therefore)
against Nevada Zhongke or, to Nevada Zhongke's knowledge, any officer of Nevada
Zhongke, which individually or in the aggregate could result in any material
liability or which may otherwise result in a Material Adverse Effect, or which
seeks equitable relief, rescission of, seeks to enjoin the consummation of, or
which questions the validity of, this Agreement or any other Related Agreement
or any of the transactions contemplated hereby or thereby.
SECTION 3.13 AUTHORITY. The Board of Directors of Nevada Zhongke has
authorized the execution of this Agreement and the consummation of the
transactions contemplated herein, and Nevada Zhongke has full power and
authority to execute, deliver and perform this Agreement, and this Agreement is
a legal, valid and binding obligation of Nevada Zhongke and is enforceable in
accordance with its terms and conditions. As of the Closing, the Shareholders
shall have approved this Agreement and the transactions described herein as
required by Nevada law. All consents and approvals to the transactions
contemplated by this Agreement required to be obtained by Success from any
third party shall have been obtained by Success. All authorizations, approvals
or permits of any governmental authority or regulatory body that are required
in connection with the lawful issuance and sale of the Nevada Zhongke Stock and
the sale of Success Stock pursuant to this Agreement shall have been duly
obtained and shall be in full force and effect. No additional consent,
approval, qualification, order or authorization of, or filing with any
governmental authority is required in connection any Nevada Zhongke Parties'
execution or delivery of valid stock certificates or other performance of the
this Agreements or the offer, issue or sale of the Nevada Zhongke Stock by
Shareholders or the consummation of any other transaction pursuant to this
Agreement on the part of any Nevada Zhongke Party, except for filings under
applicable federal securities or blue sky laws.
SECTION 3.14 ABILITY TO CARRY OUT OPERATIONS. Nevada Zhongke has no
operations.
SECTION 3.15 FULL DISCLOSURE. None of the representations and
warranties made by Nevada Zhongke herein or in any exhibit, certificate or
memorandum furnished or to be furnished by Nevada Zhongke or on its behalf,
contains or will contain any untrue statement of material fact or omit any
material fact the omission of which would be misleading...
SECTION 3.16 ASSETS.Nevada Zhongke has no assets or liabilities.
SECTION 3.17MATERIAL CONTRACTS. Except as set forth on Schedule 3.17,
Nevada Zhongke has no material contracts with any other party and no other
agreement shall be breached by the entry of this Acquisition Agreement
SECTION 3.18MARKET FOR COMPANY STOCK. Nevada Zhongke has been advised
that at least three (3) NASD members presently make markets in the Company's
common stock as of the date of closing pursuant to the Rules and regulations of
the NASD. The Company's stock has been given the symbol "Nevada Zhongke" and is
eligible for continued trading on the pink sheets bulletin board. While the
Company has no arrangements or understanding with any market maker to make or
maintain any market, the Company has no knowledge of any intention to terminate
making markets in the securities by any of its present market makers.
ARTICLE IV
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
SECTION 4.1 NEVADA ZHONGKE'S DELIVERY OF THE SHARES. On the Closing
Date, Nevada Zhongke will cause the transfer agent to deliver to Success stock
certificates and suitable stock powers in form acceptable to Success's attorney
or other instruction required for the issuance of the Shares to Success or
Success's designees on a "payment versus delivery" basis. If necessary, after
the sale closes the Nevada Zhongke will also execute such other certificates or
other documents reasonably necessary to confirm the sale, enter the shares on
the transfer ledger of Nevada Zhongke and transfer the Shares to Success.
SECTION 4.2 SUCCESS'S DELIVERY OF PURCHASE PRICE. Delivery of the
Purchase Price by Success shall be deemed completed upon receipt by the Escrow
Agent of the purchase price. On the Closing Date, Escrow Agent will deliver a
bank wire, bank draft or official check in an amount equal to the balance of
the Purchase Price to Nevada Zhongke upon receipt of the securities from Nevada
Zhongke and shall exchange the payment for the delivery upon confirmation of
the parties.
SECTION 4.3 TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date:
a. By Success if the due diligence examination of Nevada Zhongke, its
corporate books and records, shareholder lists and certifications,
market for its securities or its financial condition, in the opinion
of Success's counsel, materially differ from the representations
contained herein; if the consummation of the Agreement would be
deemed unlawful, or if there is a material change prior to closing;
b. by either Nevada Zhongke or Success if the other party shall have
failed to comply in any material respect with any of its covenants or
agreements contained in this Agreement required to be complied with
prior to the date of such termination, which failure to comply has
not been cured within thirty business days following receipt by such
other party of written notice from the nonbreaching party of such
failure to comply;
c. by either Nevada Zhongke or Success if there has been (i) a breach by
the other party (in the case of Success, including any breach by
Nevada Zhongke) of any representation or warranty that is not
qualified as to materiality which has the effect of making such
representation or warranty not true and correct in all material
respects or (ii) a breach by the other party (in the case of Success,
including any breach by Nevada Zhongke) of any representation or
warranty, in each case which breach has not been cured within thirty
business days following receipt by the breaching party from the
nonbreaching party of written notice of the breach;
d. by Nevada Zhongke or Success if the transactions contemplated by
this Agreement have not been effected on or prior to the Closing
Date;
(i) by Nevada Zhongke or Success if any court or other
Governmental Body having jurisdiction over a party hereto
shall have issued an order, decree or ruling or taken any
other action permanently enjoining, restraining or
otherwise prohibiting the consummation of the Exchange and
such order, decree, ruling or other action shall have
become final and nonappealable.
(ii) provided, however, that the right to terminate this
Agreement pursuant to this shall not be available to any
party whose failure to fulfill any of its obligations
contained in this Agreement has been the cause of, or
resulted in, the failure of the sale of the Assets to have
occurred on or prior to the aforesaid date The right of
any party hereto to terminate this Agreement shall remain
operative and in full force and effect regardless of any
investigation made by or on behalf of any party hereto, any
Person controlling any such party or any of their
respective
SECTION 4.4 TERMINATION. EFFECT OF TERMINATION
In the event of termination of this Agreement by either Nevada Zhongke
and Success , as provided in this Agreement shall forthwith become void, and
there shall be no liability hereunder on the part of Nevada Zhongke, Nevada
Zhongke and Success or their respective officers or directors; provided,
however, that nothing contained in this Agreement shall relieve any party
hereto from any liability for any willful breach of a representation or
warranty contained in this Agreement or the breach of any covenant contained in
this Agreement.
At any time prior to the Effective Time, the parties hereto may (a)
extend the time for the performance of any of the obligations or other acts of
the other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and
(c) waive compliance with any of the agreements or conditions contained herein
which may legally be waived. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party.
ARTICLE V
CLOSING
SECTION 5.1 CONDITIONS TO CLOSING. Success's obligation to purchase and
pay for the Shares is subject to the fulfillment, prior to or at the closing,
of the conditions specified in Nevada Zhongke's Covenants, Representations, and
Warranties and the due diligence examination of Success.
SECTION 5.2 CLOSING. The Closing of this transaction shall be held at
the offices of Xxxxxxx X. Xxxxxxx, 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX
00000 as specified in Article I or other location agreed to by the parties. At
the closing:
(a)Nevada Zhongke shall deliver to Success certificates
representing the exchanged shares of common voting stock ;
(b)Nevada Zhongke shall deliver (i) an officer's certificate from
Nevada Zhongke dated the Closing Date, that all
representations, warranties, covenants and conditions set forth
in this Agreement on behalf of Nevada Zhongke are true and
correct as of, or have been fully performed and complied with
by, the Closing Date and (ii) the legal opinion of its counsel
in form acceptable to Success, and (iii) there are no
liabilities of the Company and (iv) Nevada Zhongke's company
minute book, seal or chops and records of minutes of meeting
of boards. Nevada Zhongke shall deliver a signed consent and/or
Minutes of the Meetings of the Board of Directors of Nevada
Zhongke approving this Agreement.
(c)Such other instruments, documents and certificates, if any, as
are required to be delivered pursuant to the provisions of this
Agreement shall have been duly authorized, executed and
delivered by the parties thereto and a copy of such executed
instruments, documents and certificates shall have been
delivered to both Nevada Zhongke and Success.
(d)The Nevada Zhongke shall issue new restricted stock
certificates representing the Shares to be issued and sold to
Success along with stock powers that shall be signed with
medallion stamp guarantees. The certificates shall be in form
suitable to the Company's transfer agent and acceptable to
Success's counsel.
SECTION 5.3 EVENTS SUBSEQUENT TO CLOSING. Subsequent to the Closing,
the capitalization of Nevada Zhongke may be restructured by reverse splits,
conversion of preferred shares to common shares or otherwise to reflect the
intended capitalization. Further, Nevada Zhongke shall be available to assist
in the change of corporate name, CUSIP number, confirmation of transfer agent
and registrar or change of transfer agent, update information on the Pink
Sheets, and other ministerial matters necessary to disclose and effect the
change of control.
ARTICLE VI
MISCELLENANEOUS
SECTION 6.1 NOTICES. Any notices or other communications required or
permitted by this agreement shall be sufficiently given if personally delivered
to it or sent by registered mail or certified mail, postage prepaid, or by
post, fax, e-mail or prepaid telegram addressed to the addresses set forth
above in this Agreement 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 as of the date so
delivered, mailed or telegraphed.
Zhongke Biotec Agriculture (USA) Company
c/o Chen Min, CEO
Dukang Group
Van Metropolis X-00X
Xxxx Xxx Xxxx 00#
Xxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxx 710065
Success Mater Investment, Ltd.
Xxxx 000, 0/X. Xxxxxxx Xxxxx, 93-103, Wing lock
Street, Xxxxxx Xxx, Hong Kong
Shaanxi Zhongke Spaceflight Agriculture Development
Stock Co., Ltd.
x/x Xx Xxxxxxxxx
Xxxxxxxxx Xxxx 00# Chuangye Mansion
Yanglin Representative Rea,
Shaanxi Province, PRC
Copies to: Xxxxxxx X. Xxxxxxx. Attorney
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
SECTION 6.2 ATTORNEYS' FEES. Each party will be responsible for their
own attorney's fees.
SECTION 6.3 CONFIDENTIALITY. Each party agrees with the other party
that, unless and until the transactions contemplated by this Agreement have
been consummated, they and their representatives will hold in strict confidence
all data and information obtained with respect to another party or any
subsidiary 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 is a matter of public knowledge or is required by law
to be published; and (ii) to the extent that such data or information must be
used or disclosed in order to consummate the transactions contemplated by this
Agreement.
SECTION 6.4 THIRD PARTY BENEFICIARIES.This contract is between Nevada
Zhongke and Success, and the Company may be a third party beneficiary of this
Agreement. Except for the shareholders of the Company and as specifically
provided, no other person or entity shall be deemed to be a third party
beneficiary of this Agreement. Additionally, relating to this transaction,
Nevada Zhongke owes no duty to anyone other than Success, at any time or for
any reason.
SECTION 6.5 ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties. This Agreement alone fully and completely
expresses the agreement of the parties relating to the subject matter hereof.
There are no other courses of dealing, understanding, agreements,
representations or warranties, written or oral, except as set forth in this
document. This Agreement may not be amended or modified, except by a written
agreement signed by all parties.
SECTION 6.6 SURVIVAL; TERMINATION. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated the applicable statute of
limitations.
SECTION 6.7 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.
SECTION 6.8 AMENDMENT OR WAIVER. Every right and remedy provided by
this agreement shall be cumulative with every other right and remedy conferred
at law or in equity, and may be enforced concurrently. 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 arising at any time. At any time prior
to the Closing Date, this Agreement may be amended by a writing signed by all
parties, with respect to any of its terms, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
SECTION 6.9 EXPENSES. Each party shall bear all of their respective
costs and expenses incurred in connection with the negotiation of this
Agreement and in the consummation of the transactions provided for herein and
the preparation thereof.
SECTION 6.10 HEADINGS; CONTEXT. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only
and in no way modify, interpret or construe the meaning of this Agreement.
SECTION 6.11 BENEFIT. This Agreement shall be binding upon and shall
inure only to the benefit of the parties and their permitted assigns. This
Agreement shall not be assigned by any party without the prior written consent
of the other party.
SECTION 6.12 XXXXXXXXXXXX.Xx the event that any particular provision or
provisions of this Agreement shall for any reason be determined to be
unenforceable, or in violation of any law, governmental order or regulation,
such unenforceability or violation shall not affect the remaining provisions of
such agreements, which shall continue in full force and effect and be binding
upon the respective parties.
SECTION 6.13 NO STRICT CONSTRUCTION. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment,
and not strictly for or against either party, regardless of who drafted or was
principally responsible for drafting the Agreement or its terms or conditions.
SECTION 6.14 EXECUTION KNOWING AND VOLUNTARY. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprised by its attorneys of the legal effect and
meaning of this document and all its terms and conditions; (c) is executing
this Agreement voluntarily, free from any influence, coercion or duress of any
kind.
SECTION 6.15 FURTHER ASSURANCES, COOPERATION. Each party shall, upon
reasonable request by the other party, execute and deliver any additional
documents necessary or desirable to complete sale contemplated by this
agreement. The parties agree to cooperate and use their respective best
efforts to consummate the transactions contemplated by this agreement.
SECTION 6.16 GOVERNING LAW. This Agreement shall be construed (both as
to validity and performance) and enforced in accordance with and governed by
the laws of the state of Nevada applicable to agreements made and to be
performed wholly within such jurisdiction and without regard to conflicts of
laws.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION BY NEVADA ZHONGKE. Notwithstanding any
other provisions of this Agreement and subject to the terms and conditions of
this Article V, Nevada Zhongke agrees to indemnify, defend and hold harmless
Success, any of Success's subsidiaries or affiliates, including Company and any
Subsidiaries, and their successors, officers, directors and controlling persons
(the "Success Group"), at any time after the Closing Date, from and against all
demands, claims, actions or causes of action, assessments, losses, damages,
liabilities, costs and expenses, including without limitation, interest,
penalties and attorney's fees and expenses, which were reasonably incurred or
imposed upon Success Group or any of its members, net of any insurance proceeds
received by any member of Success Group for such demands, asserted against or
incurred by any member of the Success Group directly or indirectly, by reason
of or resulting from any misrepresentation, breach of any warranty or
nonperformance or breach of any covenant, obligation or agreement of Nevada
Zhongke or Company contained in or made pursuant to this Agreement or any
statement contained in any certificate or document furnished to Nevada Zhongke
pursuant to this Agreement, or any facts or circumstances constituting such a
breach.
AGREED AND ACCEPTED as of the date first above written.
(Signatures on Next Page)
Confirmed and Amended on February 3, 0000
XXXXXXX XXXXXX XXXXXXXXXXX (XXX) COMPANY
By: /s/ CHEN MIN
-------------
CHEN MIN, CEO
SUCCESS MATER INVESTMENT LIMITED
By: /s/ AO JIANGFENG
----------------
AO JIANGFENG, PRESIDENT
SHAANXI ZHONGKE SPACEFLIGHT AGRICULTURE DEVELOPMENT
STOCK CO., LTD.
By: /s/ AO JIANGFENG
----------------
AO JIANGFENG, PRESIDENT
SHAANXI QIN YUAN AGRICULTURE SCIENTIFIC DEVELOPMENT
LIMITED
By: /s/ AO JIANGFENG
----------------
AO JIANGFENG, PRESIDENT
