ASSET PURCHASE AGREEMENT By and Among BEIJING HI-TECH WEALTH INVESTMENT AND DEVELOPMENT COMPANY LIMITED, GENERAL COMPONENTS, INC. and MAGICAL INSIGHT INVESTMENTS LIMITED Dated as of February 8, 2007
By
and
Among
BEIJING
HI-TECH WEALTH INVESTMENT AND DEVELOPMENT COMPANY LIMITED,
and
MAGICAL
INSIGHT INVESTMENTS LIMITED
Dated
as
of February 8, 2007
ASSET
PURCHASE AGREEMENT, dated as of February 8, 2007, by and among Beijing Hi-Tech
Wealth Investment and Development Company Limited, a limited liability company
organized under the laws of the People’s Republic of China (the “Seller”),
Magical Insight Investments Limited, an international business company organized
and existing under the laws of the British Virgin Islands (the “Buyer”)
and
General Components, Inc., a corporation organized and existing under the laws
of
Nevada (“Parent”).
W
I T
N E S S E T H:
WHEREAS,
Parent acquired all of the outstanding capital stock of the Buyer pursuant
to a
Share Exchange Agreement dated as of September 6, 2006 and intends to contribute
30,000,000 warrants to purchase shares of its common stock, par value $.0001
per
share (“Parent
Common Stock”)
to its
wholly-owned subsidiary, the Buyer, to enable the Buyer to purchase the Interest
(as defined below) from the Seller.
WHEREAS,
the Buyer owns 92.29% of the registered capital of Beihai Hi-Tech Wealth
Technology Development Co. Ltd. (“Beihei
HTW”),
a
company formed under the laws of the People’s Republic of China;
and
WHEREAS,
the Seller owns assets including the remaining 7.71% interest in the registered
capital of Beihai HTW (the “Interest”);
and
WHEREAS,
the Seller wishes to sell to the Buyer, and the Buyer wishes to purchase from
the Seller, the Interest, upon the terms and subject to the conditions set
forth
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements and
covenants hereinafter set forth, the Buyer and the Seller hereby agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01 Certain
Defined Terms.
As used
in this Agreement, the following terms shall have the following
meanings:
“Action”
means
any claim, action, suit, arbitration, inquiry, proceeding or investigation
by or
before any Governmental Authority.
“Affiliate”
means,
with respect to any specified Person, any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by,
or is
under common control with, such specified Person.
1
“Beihai
HTW”
has
the
meaning specified in the recitals to this Agreement.
“Buyer”
has
the
meaning specified in the recitals to this Agreement.
“Closing”
has
the
meaning specified in Section 2.02.
“Closing
Date”
has
the
meaning specified in Section 2.02.
“Control”
(including the terms “controlled
by”
and
“under
common control with”),
with
respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly or as trustee or executor, of the power
to
direct or cause the direction of the affairs or management of a Person, whether
through the ownership of voting securities, as trustee or executor, by contract
or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board
of
directors or similar body governing the affairs of such Person.
“Damage
Claim Notice”
has
the
meaning specified in Section 7.04.
“Damages”
has
the
meaning specified in Section 7.02.
“Encumbrance”
means
any security interest, pledge, mortgage, lien (including, without limitation,
environmental and tax liens), charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including, without limitation, any
restriction on the use, voting, transfer, receipt of income or other exercise
of
any attributes of ownership.
“Governmental
Authority”
means
any United States federal, state or local or any foreign government,
governmental, regulatory or administrative authority, agency or commission
or
any court, tribunal, or judicial or arbitral body.
“Governmental
Order”
means
any order, writ, judgment, injunction, decree, stipulation, determination or
award entered by or with any Governmental Authority.
“Indemnitee”
has
the
meaning specified in Section 7.04.
“Indemnitor”
has
the
meaning specified in Section 7.04.
“Interest”
has
the
meaning specified in the recitals to this Agreement.
“Law”
means
any federal, state, local or foreign statute, law, ordinance, regulation, rule,
code, order, other requirement or rule of law.
“Liabilities”
means
any and all debts, liabilities and obligations, whether accrued or fixed,
absolute or contingent, matured or un-matured or determined or determinable,
including, without limitation, those arising under any Law, Action or
Governmental Order and those arising under any contract, agreement, arrangement,
commitment or undertaking.
2
“Loss”
has
the
meaning specified in Section 7.01.
“Material
Adverse Effect”
means
any circumstance, change in, or effect on the business of the Seller that,
individually or in the aggregate with any other circumstances, changes in,
or
effects on, the business of the Seller: (a) is, or could be, materially adverse
to the business, operations, assets or Liabilities, employee relationships,
customer or supplier relationships, prospects, results of operations or the
condition (financial or otherwise) of the Seller or (b) could adversely affect
the ability of the Seller to operate or conduct any lawful business. With
respect to Section 6.03 only, “Material Adverse Effect” means any circumstance,
change in, or effect on the business of the Seller or Buyer that, individually
or in the aggregate, could adversely affect the ability of the Seller or Buyer
to authorize, execute or perform under this Agreement.
“Parent”
has
the
meaning specified in the recitals to this Agreement.
“Parent
Common Stock”
has
the
meaning specified in the recitals to this Agreement.
“Parent
Warrants”
has
the
meaning specified in Section 2.01(a).
“Person”
means
any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity, as well as any syndicate or group
that would be deemed to be a person under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
“Seller”
has
the
meaning specified in the recitals to this Agreement.
“Tax”
or
“Taxes”
means
any and all taxes, fees, levies, duties, tariffs, imposts, and other charges
of
any kind (together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any government
or
taxing authority, including, without limitation: taxes or other charges on
or
with respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer,
value
added, or gains taxes; license, registration and documentation fees; and customs
duties, tariffs, and similar charges.
“Third
Party Indemnity Claim”
has
the
meaning specified in Section 7.04.
3
ARTICLE
II
PURCHASE
AND SALE
SECTION
2.01 Issuance
of Parent Warrants and Purchase and Sale of the Interest.
Upon
the terms and subject to the conditions of this Agreement, at the Closing,
(a) Parent
shall contribute 30,000,000 warrants to purchase shares of Parent’s Common Stock
(“Parent
Warrants”)
to the
Buyer; and
(b) the
Buyer
shall transfer such Parent Warrants to the Seller in the name of the Seller’s
three designated shareholders: 10,000,000 warrants in the name of Ally Glory
Limited, 10,000,000 warrants in the name of Testridge Investments Limited and
10,000,000 warrant in the name of ▇▇▇▇▇▇▇▇ Holdings Limited, and in
consideration therefor, the Seller shall sell to the Buyer, and the Buyer shall
purchase from the Seller, free and clear of any Encumbrance the, Interest
constituting 7.71% of Beihai HTW’s outstanding registered
capital.
SECTION
2.02 Closing.
Upon
the terms and subject to the conditions of this Agreement, the sale and purchase
of the Interest contemplated by this Agreement shall take place at a closing
(the “Closing”)
to be
held at the offices of Loeb & Loeb LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
at 10:00 A.M. New York time two business days following satisfaction or waiver
of all conditions to the obligations of the parties set forth in Article VI,
or
at such other place or at such other time or on such other date as the Seller,
Parent and the Buyer may agree upon in writing (the day on which the Closing
takes place being the “Closing
Date”).
SECTION
2.03 Closing
Deliveries by the Seller.
At the
Closing, the Seller shall deliver or cause to be delivered to the
Buyer:
(a) appropriate
instruments of transfer or instructions to Beihai HTW to re-register the Buyer
as the holder of the Interest on the Beihai Commercial Registrar, in either
case
in form and substance satisfactory to the Buyer;
(b) the
opinions, certificates and other documents required to be delivered pursuant
to
Section 8.02.
SECTION
2.04 Closing
Deliveries by the Buyer.
At the
Closing, the Buyer shall deliver to the Seller:
(a) the
Parent Warrants; and
(b) the
opinions, certificates and other documents required to be
delivered pursuant to Section 8.01.
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ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
THE SELLER
As
an
inducement to the Buyer to enter into this Agreement, the Seller hereby
represents and warrants to the Buyer as follows:
SECTION
3.01 Organization,
Authority and Qualification of the Seller.
The
Seller is a company duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and has all necessary power and
authority to execute, deliver, and perform this Agreement. The Seller is duly
licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation
of
its business makes such licensing or qualification necessary. The execution,
delivery, and performance of this Agreement by the Seller, have been duly
authorized by all requisite action on the part of the Seller. This Agreement
constitutes a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms.
SECTION
3.02 Title
to the Interest, etc.
The
Seller has good and marketable title to the Interest, free and clear of any
Encumbrance. The Interest has been legally and validly issued are fully paid
and
nonassessable. Except pursuant to this Agreement, the Seller has no agreement,
arrangement, or understanding with respect to the Interest or the Seller’s
ownership thereof.
SECTION
3.03 No
Seller Conflict.
The
execution, delivery and performance of this Agreement by the Seller do not
and
will not (a) violate, conflict with or result in the breach of any provision
of
the organizational documents of the Seller, (b) conflict with or violate (or
cause an event which could have a Material Adverse Effect as a result of) any
Law or Governmental Order applicable to the Seller or any of its assets,
properties, or business, or require any consent, approval, authorization or
other order of, action by, filing with or notification to any Governmental
Authority, or (c) conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others any right
of termination, amendment, acceleration, suspension, revocation or cancellation
of, or result in the creation of any Encumbrance on any of the Interest or
on
any of the assets or properties of the Seller.
SECTION
3.04 Ownership
of the Interest.
The
Interest constitutes 7.71% of the registered capital of Beihai HTW, and, upon
consummation of the transactions contemplated by this Agreement and registration
of the Interest in the name of the Buyer in the stock records of Beihai HTW,
the
Buyer, assuming it shall have purchased the Interest for value in good faith
and
without notice of any adverse claim, will own 100.0% of registered capital
of
Beihai HTW. Upon consummation of the transactions contemplated by this
Agreement, the Interest will be fully paid and nonassessable.
SECTION
3.05 Full
Disclosure.
The
Seller is not aware of any facts pertaining to Beihai HTW that affect adversely
Beihai HTW or which are likely in the future to affect Beihai HTW adversely,
except as disclosed in this Agreement or otherwise known to the Buyer. No
representation or warranty of the Seller in this Agreement or any statement
or
certificate furnished or to be furnished to the Buyer pursuant to this
Agreement, or in connection with the transactions contemplated by this
Agreement, contains or will contain any untrue statement of a material fact,
or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
5
SECTION
3.06 Brokers.
No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of the Seller
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
OF
THE BUYER
AND PARENT
As
an
inducement to the Seller to enter into this Agreement, the Buyer and Parent
hereby represent and warrant to the Seller as follows:
SECTION
4.01 Organization
and Authority of the Buyer.
The
Buyer is a company duly organized, validly existing, and in good standing under
the laws of the British Virgin Islands and has all necessary corporate power
and
authority to execute, deliver, and perform this Agreement. The execution,
delivery, and performance of this Agreement has been duly authorized by all
requisite action on the part of the Buyer. This Agreement shall have been duly
executed and delivered by the Buyer, and (assuming due authorization, execution,
and delivery by each other party thereto) constitutes a legal, valid, and
binding obligation of the Buyer enforceable against the Buyer in accordance
with
its terms.
SECTION
4.02 No
Conflict.
The
execution, delivery and performance of this Agreement by the Buyer does not
and
will not (a) violate, conflict with or result in the breach of any provision
of
the charter, bylaws, or similar organizational documents of the Buyer, (b)
conflict with or violate any Law or Governmental Order applicable to the Buyer
or require any consent, approval, authorization, or other order of, action
by,
filing with, or notification to any Governmental Authority, or (c) conflict
with, or result in any breach of, constitute a default (or event which with
the
giving of notice or lapse or time, or both, would become a default) under,
require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, or result
in the creation of any Encumbrance on any of the assets or properties of the
Buyer that would have a material adverse effect on the ability of the Buyer
to
consummate the transactions contemplated by this Agreement.
6
SECTION
4.03 Investment
Purpose.
The
Buyer is acquiring the Interest solely for the purpose of investment and not
with a view to, or for offer or sale in connection with, any distribution
thereof.
SECTION
4.04 Brokers.
No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of the Buyer.
SECTION
4.05 Organization
and Authority of Parent.
Parent
is a corporation duly organized, validly existing, and in good standing under
the laws of Nevada and has all necessary corporate power and authority to
execute, deliver, and perform this Agreement. The execution, delivery, and
performance of this Agreement has been duly authorized by all requisite action
on the part of Parent. This Agreement shall have been duly executed and
delivered by Parent, and (assuming due authorization, execution, and delivery
by
each other party thereto) constitutes a legal, valid, and binding obligation
of
Parent enforceable against Parent in accordance with its terms.
SECTION
4.06 No
Conflict.
The
execution, delivery and performance of this Agreement by Parent does not and
will not (a) violate, conflict with or result in the breach of any provision
of
the charter, bylaws, or similar organizational documents of Parent, (b) conflict
with or violate any Law or Governmental Order applicable to Parent or require
any consent, approval, authorization, or other order of, action by, filing
with,
or notification to any Governmental Authority, or (c) conflict with, or result
in any breach of, constitute a default (or event which with the giving of notice
or lapse or time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation, or cancellation of, or result in the creation of any
Encumbrance on any of the assets or properties of the Buyer that would have
a
material adverse effect on the ability of Parent to consummate the transactions
contemplated by this Agreement.
SECTION
4.07 Capitalization.
The
authorized capital stock of Parent consists of 280 million shares, consisting
of
280 million shares of Parent Common Stock and 10 million shares of preferred
stock, of which approximately 279,997,207 shares of Parent Common Stock are
issued and outstanding, no shares of preferred stock are outstanding and
approximately 287,432,793 shares of Parent Common Stock and 120 shares of Series
B Preferred Stock are issuable pursuant to outstanding options, warrants,
purchase agreements, participation agreements, subscription rights, conversion
rights, exchange rights or other securities or contracts. All issued and
outstanding shares of Parent Common Stock are duly authorized, validly issued,
fully paid and nonassessable, and have not been issued in violation of any
preemptive or similar rights. There are no outstanding stockholders’ agreements,
voting trusts or arrangements, registration rights agreements, rights of first
refusal or other contracts pertaining to the capital stock of Parent.
7
ARTICLE
V
ADDITIONAL
AGREEMENTS
SECTION
5.01 Non-Solicitation;
Confidentiality; Cooperation.
Until
the Closing or termination of this Agreement,
(a)
the
Seller will not transfer any of the Interest, or any interest therein, or engage
in any discussion either directly or indirectly with any third party with regard
thereto, other than as necessary for consummating the transactions contemplated
by this Agreement;
(b) none
of
the Seller, Parent or Buyer will disclose, the existence of this Agreement,
or
the subject matter thereof, other than as necessary for consummating the
transactions contemplated by this Agreement or as required by applicable law,
rule, regulation, regulatory inquiry or other judicial process; and
(c) each
of
the parties shall use reasonable efforts to cause the satisfaction of the
conditions to the obligation of the other parties to consummate the transactions
contemplated by this Agreement and otherwise to cause the Closing to occur,
including in making all required filings with or obtaining any approval from
all
required Government Authorities and notices to or obtaining required consents
of
other third parties.
SECTION
5.02 Reverse
Stock Split.
Parent
shall take such actions as are necessary to consummate a 1 for 10 reverse split
of its outstanding common shares at the earliest practicable date following
the
Closing.
ARTICLE
VI
CONDITIONS
TO CLOSING
SECTION
6.01 Conditions
to Obligations of the Seller.
The
obligations of the Seller to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing,
of
each of the following conditions:
(a) Representations,
Warranties and Covenants.
The
representations and warranties of the Buyer contained in this Agreement shall
have been true and correct when made and shall be true and correct in all
material respects as of the Closing, with the same force and effect as if made
as of the Closing Date; the Buyer shall have performed all obligations under
this Agreement required to be performed by it as of the Closing; and the Seller
shall have received a certificate from the Buyer to such effect signed by a
duly
authorized officer thereof;
8
(b) No
Proceeding or Litigation.
No
Action shall have been commenced by or before any Governmental Authority against
any Seller, Beihai HTW or the Buyer, seeking to restrain or materially and
adversely alter the transactions contemplated by this Agreement that, in the
reasonable, good faith determination of the Seller, is likely to render it
impossible or unlawful to consummate such transactions.
(c) Resolutions.
The
Seller shall have received a true and complete copy, certified by the Secretary
or an Assistant Secretary of the Buyer, of the resolutions duly and validly
adopted by the Board of Directors of the Buyer evidencing its authorization
of
the execution, delivery, and performance of this Agreement.
SECTION
6.02 Conditions
to Obligations of the Buyer and Parent.
The
obligations of each of the Buyer and Parent to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, at or prior
to the Closing, of each of the following conditions:
(a) Representations,
Warranties, and Covenants.
The
representations and warranties of the Seller contained in this Agreement shall
have been true and correct when made and shall be true and correct as of the
Closing with the same force and effect as if made as of the Closing; the Seller
shall have performed all obligations under this Agreement required to be
performed by it as of the Closing; and the Buyer shall have received a
certificate of the Seller to such effect signed by a duly authorized officer
thereof.
(b) No
Proceeding or Litigation.
No
Action shall have been commenced or threatened by or before any Governmental
Authority against the Seller, Beihai HTW, the Buyer or Parent, seeking to
restrain or materially and adversely alter the transactions contemplated hereby
which the Buyer or Parent believes, in its reasonable, good faith determination,
is likely to render it impossible or unlawful to consummate the transactions
contemplated by this Agreement or that could have a Material Adverse
Effect.
(c) Resolutions
of the Seller.
The
Buyer shall have received a true and complete copy, certified by the Secretary
or an Assistant Secretary of the Seller, of the resolutions duly and validly
adopted by the Board of Directors of the Seller evidencing its authorization
of
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(d) Consents
and Approvals.
The
Buyer, Beihai HTW and the Seller shall have received or made, each in form
and
substance satisfactory to the Buyer in its reasonable, good faith determination
all required filings and approvals from all Government Authorities and notices
to or required consents of any other third parties that the Buyer shall deem
appropriate for the consummation of the transactions contemplated by this
Agreement.
9
SECTION
6.03 No
Material Adverse Effect.
No
event or events shall have occurred, or be reasonably likely to occur, which,
individually or in the aggregate, have, or could have, a Material Adverse
Effect.
ARTICLE
VII
INDEMNIFICATION;
REMEDIES
SECTION
7.01 Survival
of Representations and Warranties of the Parties.
All
representations and warranties made by any party hereto contained in this
Agreement, and the indemnification obligations of each party hereto, shall
survive for a period of two years after the Closing Date. Provided that a party
has made a claim for indemnification in accordance with the procedures set
forth
in this Article VII on or prior to the expiration of the survival period
referred to in the previous sentence, then the indemnity obligations relating
to
such claim shall survive until the final resolution of such claim, as further
provided in this Article VII.
SECTION
7.02 Indemnification
by the Seller.
The
Seller hereby agrees to pay and indemnify fully, hold harmless and defend the
Buyer and its successors and permitted assigns for, from and against any and
all
damages, losses, claims, liabilities, deficiencies, judgments, penalties,
forfeitures, costs or expenses (including all reasonable legal, consultant
and
other professional fees, expenses and other disbursements of any kind
whatsoever) (collectively, “Damages”)
resulting from, arising out of or in connection with any inaccuracy or any
breach or any alleged breach or inaccuracy of any representation, warranty,
covenant or agreement on the part of the Seller contained in this Agreement.
SECTION
7.03 Indemnification
by the Buyer.
The
Buyer agrees to pay and indemnify fully, hold harmless and defend the Seller,
and its agents, directors, officers, partners, shareholders, employees,
servants, consultants, representatives, successors and permitted assigns for,
from and against any and all Damages resulting from, arising out of or in
connection with any inaccuracy or any breach or any alleged breach or inaccuracy
of any representation, warranty, covenant or agreement on the part of the Buyer
contained in this Agreement.
10
SECTION
7.04 Procedure.
In the
event (i) any claim for which a party hereto (the “Indemnitor”)
would
be obligated to pay, indemnify, defend or hold harmless another party hereto
(the “Indemnitee”)
is
asserted or sought to be collected by a third party (a “Third
Party Indemnity Claim”),
or
(ii) any Indemnitee should have a right under this Article VII against any
Indemnitor to be paid, indemnified, defended or held harmless (a “Direct
Indemnity Claim”),
such
Indemnitee shall with reasonable promptness give written notice to such
Indemnitor, which notice shall describe in reasonable detail the specific basis
for the right to be paid, indemnified, defended or held harmless under this
Article VII and the estimated amount of Damages anticipated to be suffered
(if
ascertainable), which estimated amount shall not be conclusive of the final
amount of such Damages (the “Damage
Claim Notice”);
provided, however, that any failure to give such notice will not waive any
rights of the Indemnitee except to the extent that either (i) the rights of
the
Indemnitor are actually prejudiced or (ii) such notice is not given within
the
relevant time period set forth in Section 7.01 hereof, if applicable. The
Indemnitor may, and upon the Indemnitee’s request shall promptly, retain counsel
of the Indemnitor’s choice, subject to the prior written consent of the
Indemnitee (which consent shall not be unreasonably withheld or delayed), to
represent the Indemnitee and any other Person the Indemnitor may reasonably
designate in connection with such Third Party Indemnity Claim, and shall pay
all
fees and disbursements of such counsel with regard thereto; provided, however,
that any Indemnitee is hereby authorized to retain separate counsel in
connection with such Third Party Indemnity Claim whose fees and disbursements
shall be at the expense of the Indemnitor in the event that (i) the Indemnitor
and the Indemnitee shall have mutually agreed to the retention of such counsel,
or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnitor and the Indemnitee, and the Indemnitee
reasonably believes that representation of both by the same counsel would be
inappropriate due to actual or potential differing interests between them,
but
under no circumstances shall the Indemnitor be required to pay the fees and
disbursements of more than one such separate counsel in connection with such
Third Party Indemnity Claim. To the extent the Indemnitor shall have refused
or
failed to comply with the Indemnitee’s request to promptly retain counsel as
aforesaid, the Indemnitee may not compromise or settle any Third Party Indemnity
Claim for which it has asserted or may assert its right to be paid, indemnified,
defended or held harmless under this Article 6 without the prior written consent
of the Indemnitor, which consent shall not be unreasonably withheld or delayed.
Unless (i) the Indemnitor shall have agreed in writing that any and all Damages
to the Indemnitee relating to a Third Party Indemnity Claim are fully covered
under this Article 6 and (ii) such settlement includes an immediately effective
release for the benefit of the Indemnitee, the Indemnitor may not compromise
or
settle any such claim without the prior written consent of the Indemnitee,
which
consent shall not be unreasonably withheld or delayed.
Upon
receipt by the Indemnitor of a Damage Claim Notice which relates to a Direct
Indemnity Claim, the Indemnitor and Indemnitee shall make all reasonable efforts
to promptly resolve such claim on an amicable basis within the thirty (30)
day
period following such receipt, failing which the Indemnitee shall be entitled
to
commence any action in its discretion to enforce its rights under this Article
VII.
11
SECTION
7.05 Payment,
Etc., of Indemnification Obligations.
Damages
shall be due and owing when finally judicially determined to be covered by
the
indemnities set forth in this Article VII hereof or otherwise as mutually agreed
among the parties hereto. The Indemnitor shall, within two (2) business days
following receipt of written demand by the Indemnitee, pay the Indemnitee or
at
the Indemnitee’s direction in immediately available funds any and all Damages
then due and owing.
SECTION
7.06 Exclusive
Remedy.
Except
for claims or causes of action for fraud or intentional misrepresentation,
as
among the parties hereto, the rights and obligations set forth in this Agreement
will be the exclusive post-Closing rights and obligations with respect to this
Agreement, and the transactions provided for or contemplated hereby or thereby.
No party shall make a claim for special, consequential or incidental Damages
in
connection with a claim to be paid, indemnified, defended or held harmless
hereunder.
ARTICLE
VIII
TERMINATION
AND WAIVER
SECTION
8.01 Termination.
Without
limiting any other remedy available to any party, this Agreement may be
terminated at any time prior to the Closing:
(a) by
the
Buyer, if there shall be or have been any breach of any representation,
warranty, or covenant made in this Agreement by any Seller or any condition
in
Section 6.02 shall not have been satisfied as of the Closing;
(b) by
the
Seller if there shall be or have been any breach of any representation,
warranty, or covenant made in this Agreement by the Buyer of Parent of any
condition in Section 6.01 shall not have been satisfied as of the
Closing;
(c) by
any
party not at fault, if the Closing shall not have occurred by March 1,
2007.
SECTION
8.02 Effect
of Termination.
If this
Agreement is terminated, no party will have any liability or further obligation
to any other party to the Agreement, except for any liability arising out of
any
knowing, willful or fraudulent breach of this Agreement prior to such
termination.
ARTICLE
IX
GENERAL
PROVISIONS
SECTION
9.01 Expenses.
Except
as otherwise specified in this Agreement, all costs and expenses, including,
without limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
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SECTION
9.02 Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by cable,
by telecopy, by telegram, by telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 10.02) :
(a) if
to the
Seller:
c/o
Charmfield Ltd.
▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
(▇) if
to the
Buyer or Parent:
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇
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with
a
copy to:
Loeb
& Loeb, LLP
▇▇▇
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▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax:▇▇▇-▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
SECTION
9.03 Public
Announcements.
No
party to this Agreement shall make, or cause to be made, any press release
or
public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall cooperate as
to
the timing and contents of any such press release or public announcement.
SECTION
9.04 Headings.
The
descriptive headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation
of
this Agreement.
SECTION
9.05 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any Law or public policy, all other terms and provisions
of
this Agreement shall 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 materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall 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 in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.
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SECTION
9.06 Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, between the Seller, Parent and the Buyer
with respect to the subject matter hereof and thereof.
SECTION
9.07 Assignment.
This
Agreement may not be assigned by operation of law or otherwise without the
express written consent of the Seller, Parent and the Buyer (which consent
may
be granted or withheld in the sole discretion of the Seller, Parent or the
Buyer); provided, however, that the Buyer may assign this Agreement to an
Affiliate of the Buyer without the consent of the Seller provided that any
such
assignee shall become a party to this Agreement and make the representations
of
the Buyer contained herein on or prior to the effective date of such
assignment.
SECTION
9.08 No
Third Party Beneficiaries.
This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their permitted assigns and nothing herein, express or implied,
is
intended to or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION
9.09 Amendment.
This
Agreement may not be amended or modified except by an instrument in writing
signed by, or on behalf of the parties hereto.
SECTION
9.10 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York applicable to contracts negotiated, executed, and to
be
performed entirely in that state by residents thereof.
SECTION
9.11 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
SECTION
9.12 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity.
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IN
WITNESS WHEREOF, the Seller, Parent and the Buyer have caused this Agreement
to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
| BEIJING HI-TECH WEALTH INVESTMENT AND DEVELOPMENT COMPANY LIMITED | ||
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| BEIJING HI-TECH WEALTH INVESTMENT AND DEVELOPMENT COMPANY LIMITED | ||
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Name:
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| GENERAL COMPONENTS, INC. | ||
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