THIS SHARE EXCHANGE AGREEMENT, dated as of the 14th day of June, 2005 (the “Agreement”), by and among Vorsatech Ventures, Inc., a Delaware corporation (the “Company”); Thomas Braun (“Braun”) and Berlin Capital Investments, Inc., a British Columbia...
EXHIBIT
2.1
THIS
SHARE EXCHANGE AGREEMENT, dated as of the 14th
day of
June, 2005 (the “Agreement”), by and among Vorsatech Ventures, Inc., a Delaware
corporation (the “Company”); Xxxxxx Xxxxx (“Xxxxx”) and Berlin Capital
Investments, Inc., a British Columbia corporation (the “Shareholder”); Beams
Power Investment Corporation, a British Virgin Islands corporation and Strong
Gold Finance Corporation, a British Virgin Islands corporation (the “Sellers”);
and Synutra, Inc., an Illinois corporation (“Synutra”). The Company, Xxxxx, the
Shareholder, the Sellers and Synutra are collectively referred to herein
as the
“Parties”.
ARTICLE
I
1.1 The
Exchange.
Subject
to the terms and conditions of this Agreement, on the Closing Date (as
hereinafter defined):
(a) the
Company shall issue and deliver to each of the Sellers and/or their designees
and the Financial Consultant and/or its designee the number of authorized
but
unissued shares of Company Common Stock set forth opposite such Seller’s or
designee’s names set forth on Schedule I hereto or pursuant to separate
instructions to be delivered prior to Closing, and
(b) the
Sellers agree to deliver to the Company duly endorsed certificates representing
the Synutra Shares.
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1.2 Time
and Place of Closing.
The
closing of the transactions contemplated hereby (the “Closing”) shall take place
at the offices of Xxxx & Xxxxx on or before July 15, 2005 (the “Closing
Date”) at 10:00 a.m., or at such place and time as mutually agreed upon by the
parties hereto.
1.3 Effective
Time.
The
Exchange shall become effective (the “Effective Time”) at such time as all of
the conditions to set forth in Article VII hereof have been satisfied or
waived
by the Parties hereto.
1.4 Escrow.
Notwithstanding anything herein to the contrary, an escrow (“Escrow”) shall be
established at the law firm of Xxxx & Xxxxx (the “Escrow Agent”)
pursuant to an escrow agreement among the Parties and Xxxx & Xxxxx (
the “Escrow Agreement”) upon terms reasonably acceptable to the parties to the
Escrow Agreement. Pursuant to the Escrow, the following Shares shall be
deposited with the Escrow Agent: the 48,879,500 Company Shares.
ARTICLE
II
The
Company and the Shareholder severally represent and warrant to Synutra and
each
of the Sellers that now and/or as of the Closing:
(a) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with full corporate power
and
authority to own, lease and operate its respective business and properties
and
to carry on its business in the places and in the manner as presently conducted
or proposed to be conducted. The Company is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it requires such qualification except
for any such failure, which when taken together with all other failures,
is not
likely to have a material adverse effect on the business of the
Company.
(b) The
Company does not own, directly or indirectly, any capital stock, equity or
interest in any corporation, firm, partnership, joint venture or other
entity.
(c) The
Company has all requisite corporate power and authority to execute and deliver
this Agreement, and to consummate the transactions contemplated hereby and
thereby. The Company has taken all corporate action necessary for the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, and this Agreement constitutes the valid and binding
obligation of the Company and the Shareholder, enforceable against the Company
and the Shareholder in accordance with its terms, except as may be affected
by
bankruptcy, insolvency, moratoria or other similar laws affecting the
enforcement of creditors’ rights generally and subject to the qualification that
the availability of equitable remedies is subject to the discretion of the
court
before which any proceeding therefore may be brought.
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2.2 No
Conflicts or Defaults.
The
execution and delivery of this Agreement by the Company and the consummation
of
the transactions contemplated hereby do not and shall not (a) contravene
the
Certificate of Incorporation or By-laws of the Company or (b) with or without
the giving of notice or the passage of time (i) violate, conflict with, or
result in a breach of, or a default or loss of rights under, any material
covenant, agreement, mortgage, indenture, lease, instrument, permit or license
to which the Company is a party or by which the Company is bound, or any
judgment, order or decree, or any law, rule or regulation to which the Company
is subject, (ii) result in the creation of, or give any party the right to
create, any lien, charge, encumbrance or any other right or adverse interest
(“Liens”) upon any of the assets of the Company, (iii) terminate or give any
party the right to terminate, amend, abandon or refuse to perform, any material
agreement, arrangement or commitment to which the Company is a party or by
which
the Company’s assets are bound, or (iv) accelerate or modify, or give any party
the right to accelerate or modify, the time within which, or the terms under
which, the Company is to perform any duties or obligations or receive any
rights
or benefits under any material agreement, arrangement or commitment to which
it
is a party.
2.3 Capitalization.
The
authorized capital stock of the Company immediately prior to giving effect
to
the transactions contemplated hereby consists of 270,000,000 shares of which
250,000,000 have been designated as Company Common Stock $.0001 par value
and
20,000,000 shares have been designed as preferred stock, $.0001 par value
(“Preferred Stock”). As of the date hereof, there are 2,638,713, shares of
Company Common Stock issued and outstanding and no shares of Preferred Stock
outstanding. All of the outstanding shares of Company Common Stock are, and
the
Company Shares when issued in accordance with the terms hereof, will be,
duly
authorized, validly issued, fully paid and nonassessable, and have not been
or,
with respect to the Company Shares will not be issued in violation of any
preemptive right of stockholders. There is no outstanding voting trust agreement
or other contract, agreement, arrangement, option, warrant, call, commitment
or
other right of any character obligating or entitling the Company to issue,
sell,
redeem or repurchase any of its securities, and there is no outstanding security
of any kind convertible into or exchangeable for Company Common Stock. The
Company has not granted registration rights to any person.
2.4 Financial
Statements.
Item
2.4 of the Disclosure Schedule to this Agreement, includes copies the balance
sheets of the Company at March 31, 2005 and 2004, and the related
statements of operations and cash flows for the fiscal years then ended,
including the notes thereto, as audited by Xxxxxxxxx International, P.C.
independent accountants (the “Financial Statements”). The Financial Statements,
together with the notes thereto, have been prepared in accordance with U.S.
generally accepted accounting principles applied on a basis consistent
throughout all periods presented. The Financial Statements present fairly
the
financial position of the Company as of the dates and for the periods indicated.
The books of account and other financial records of the Company have been
maintained in accordance with good business practices.
2.5 No
Assets or Liabilities.
Except
as set forth on the Financial Statements, the Company does not have any (a)
assets of any kind or (b) liabilities or obligations, whether secured or
unsecured, accrued, determined, absolute or contingent, asserted or unasserted
or otherwise.
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2.6 Taxes.
The
Company has filed all United States federal, state, county and local returns
and
reports which were required to be filed on or prior to the date hereof in
respect of all income, withholding, franchise, payroll, excise, property,
sales,
use, value-added or other taxes or levies, imposts, duties, license and
registration fees, charges, assessments or withholdings of any nature whatsoever
(together, “Taxes”), and has paid all Taxes (and any related penalties, fines
and interest) which have become due pursuant to such returns or reports or
pursuant to any assessment which has become payable, or, to the extent its
liability for any Taxes (and any related penalties, fines and interest) has
not
been fully discharged, the same have been properly reflected as a liability
on
the books and records of the Company and adequate reserves therefore have
been
established.
2.7 Indebtedness;
Contracts; No Defaults.
The
Company has no material instruments, agreements, indentures, mortgages,
guarantees, notes, commitments, accommodations, letters of credit or other
arrangements or understandings, whether written or oral, to which the Company
is
a party.
2.8 Real
Property.
The
Company does not own or lease any real property.
2.9 Compliance
with Law.
The
Company is in compliance with all applicable federal, state, local and foreign
laws and regulations relating to the protection of the environment and human
health. There are no claims, notices, actions, suits, hearings, investigations,
inquiries or proceedings pending or, to the knowledge of the Company, threatened
against the Company that are based on or related to any environmental matters
or
the failure to have any required environmental permits, and there are no
past or
present conditions that the Company has reason to believe are likely to give
rise to any material liability or other obligations of the Company under
any
environmental laws.
2.10 Permits
and Licenses.
The
Company has all certificates of occupancy, rights, permits, certificates,
licenses, franchises, approvals and other authorizations as are reasonably
necessary to conduct its respective business and to own, lease, use, operate
and
occupy its assets, at the places and in the manner now conducted and operated,
except those the absence of which would not materially adversely affect its
respective business.
2.11 Litigation.
There
is no claim, dispute, action, suit, proceeding or investigation pending or,
to
the knowledge of the Company and the Shareholder, threatened, against or
affecting the business of the Company, or challenging the validity or propriety
of the transactions contemplated by this Agreement, at law or in equity or
admiralty or before any federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, nor to the knowledge
of
the Company and the Shareholder, has any such claim, dispute, action, suit,
proceeding or investigation been pending or threatened, during the twelve
month
period preceding the date hereof. There is no outstanding judgment, order,
writ,
ruling, injunction, stipulation or decree of any court, arbitrator or federal,
state, local, foreign or other governmental authority, board, agency, commission
or instrumentality, against or materially affecting the business of the Company.
The Company has not received any written or verbal inquiry from any federal,
state, local, foreign or other governmental authority, board, agency, commission
or instrumentality concerning the possible violation of any law, rule or
regulation or any matter disclosed in respect of its business.
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2.12 Insurance.
The
Company does not currently maintain any form of insurance.
2.13 Patents;
Trademarks and Intellectual Property Rights.
The
Company does not own or possesses any patents, trademarks, service marks,
trade
names, copyrights, trade secrets, licenses, information, Internet web site(s)
or
proprietary rights of any nature.
2.14 Trading.
The
Company Common Stock is currently listed for trading on the OTC Bulletin
Board
(the “Bulletin Board”) and the Company has received no notice that its Common
Stock is subject to being delisted therefrom.
2.15 Securities
Law Compliance.
The
Company has complied with all of the requirements of the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”) and the Securities Act of 1933, as
amended (the “Securities Act”), and has complied with all applicable blue sky
laws.
ARTICLE
III
Synutra
and the Sellers severally represent and warrant to the Company that now and/or
as of the Closing:
(a) Synutra
is a company duly organized, validly existing and in good standing under
the
laws of the state of Illinois, with full corporate power and authority to
own,
lease and operate its business and properties and to carry on its business
in
the places and in the manner as presently conducted or proposed to be conducted.
Synutra is in good standing as a foreign corporation in each jurisdiction
in
which the properties owned, leased or operated, or the business conducted,
by it
requires such qualification except for any such failure, which when taken
together with all other failures, is not likely to have a material adverse
effect on the business of Synutra.
(b) Synutra
does not own, directly or indirectly, any capital stock, equity or interest
in
any corporation, firm, partnership, joint venture or other entity, other
than
the Subsidiaries as set forth in Item 3.1 of the Disclosure Schedule. Each
Subsidiary is wholly owned by Synutra, all the outstanding equity interest
in
each Subsidiary are owned free and clear of all liens. There is no contract,
agreement, arrangement, option, warrant, call, commitment or other right
of any
character obligating or entitling Synutra to issue, sell, redeem or repurchase
any of its securities, and there is no outstanding security of any kind
convertible into or exchangeable for securities of Synutra.
(c) Synutra
has all requisite power and authority to execute and deliver this Agreement,
and
to consummate the transactions contemplated hereby and thereby. Synutra has
taken all corporate action necessary for the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, and
this
Agreement constitutes the valid and binding obligation of Synutra, enforceable
against Synutra in accordance with its terms, except as may be affected by
bankruptcy, insolvency, moratoria or other similar laws affecting the
enforcement of creditors' rights generally and subject to the qualification
that
the availability of equitable remedies is subject to the discretion of the
court
before which any proceeding therefore may be brought.
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3.2 No
Conflicts or Defaults.
The
execution and delivery of this Agreement by Synutra and the consummation
of the
transactions contemplated hereby do not and shall not (a) contravene the
governing documents of Synutra or any of the Subsidiaries, or (b) with or
without the giving of notice or the passage of time, (i) violate, conflict
with,
or result in a breach of, or a default or loss of rights under, any material
covenant, agreement, mortgage, indenture, lease, instrument, permit or license
to which Synutra or any of the Subsidiaries is a party or by which Synutra
or
any of the Subsidiaries or any of their respective assets are bound, or any
judgment, order or decree, or any law, rule or regulation to which their
assets
are subject, (ii) result in the creation of, or give any party the right
to
create, any lien upon any of the assets of Synutra or any of the Subsidiaries,
(iii) terminate or give any party the right to terminate, amend, abandon
or
refuse to perform any material agreement, arrangement or commitment to which
Synutra is a party or by which Synutra or any of its assets are bound, or
(iv)
accelerate or modify, or give any party the right to accelerate or modify,
the
time within which, or the terms under which Synutra is to perform any duties
or
obligations or receive any rights or benefits under any material agreement,
arrangement or commitment to which it is a party.
3.3 Capitalization.
The
authorized capital stock of Synutra immediately prior to giving effect to
the
transactions contemplated hereby consists of 100,000 shares of common stock
of
which as of the date hereof there were 10,000 shares of Common Stock are
issued
and outstanding. Except as set forth herein, all of the outstanding shares
of
Synutra are duly authorized, validly issued, fully paid and nonassessable,
and
have not been or, with respect to Synutra Shares, will not be transferred
in
violation of any rights of third parties. The Synutra Shares are not subject
to
any preemptive or subscription right, any voting trust agreement or other
contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling Synutra to issue, sell, redeem
or
repurchase any of its securities, and there is no outstanding security of
any
kind convertible into or exchangeable for Common Stock. All of the Synutra
Shares are owned of record and beneficially by the Sellers free and clear
of any
liens, claims, encumbrances, or restrictions of any kind.
3.4 Taxes.
Synutra
has filed all returns and reports which were required to be filed on or prior
to
the date hereof, and has paid all Taxes (and any related penalties, fines
and
interest) which have become due pursuant to such returns or reports or pursuant
to any assessment which has become payable, or, to the extent its liability
for
any Taxes (and any related penalties, fines and interest) has not been fully
discharged, the same have been properly reflected as a liability on the books
and records of Synutra and adequate reserves therefore have been established.
All such returns and reports filed on or prior to the date hereof have been
properly prepared and are true, correct (and to the extent such returns reflect
judgments made by Synutra such judgments were reasonable under the
circumstances) and complete in all material respects. Except as indicated
in 3.4
of the Disclosure Schedule, no extension for the filing of any such return
or
report is currently in effect. Except as indicated in Item 3.4 of the Disclosure
Schedule, no tax return or tax return liability of Synutra has been audited
or,
presently under audit. All taxes and any penalties, fines and interest which
have been asserted to be payable as a result of any audits have been paid.
Except as indicated in Item 3.4 of the Disclosure Schedule, Synutra has not
given or been requested to give waivers of any statute of limitations relating
to the payment of any Taxes (or any related penalties, fines and interest).
There are no claims pending for past due Taxes. Except as indicated in Item
3.4
of the Disclosure Statement, all payments for withholding taxes, unemployment
insurance and other amounts required to be paid for periods prior to the
date
hereof to any governmental authority in respect of employment obligations
of
Synutra have been paid or shall be paid prior to the Closing and have been
duly
provided for on the books and records of Synutra and in the Synutra Financial
Statements.
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3.5 Compliance
with Law.
Synutra
and the Subsidiaries are conducting their respective businesses in material
compliance with all applicable law, ordinance, rule, regulation, court or
administrative order, decree or process, or any requirement of insurance
carriers material to its business. Neither Synutra nor any Subsidiary has
received any notice of violation or claimed violation of any such law,
ordinance, rule, regulation, order, decree, process or
requirement.
3.6 Litigation.
(a) There
is
no claim, dispute, action, suit, proceeding or investigation pending or
threatened, against or affecting Synutra or any of the Subsidiaries or
challenging the validity or propriety of the transactions contemplated by
this
Agreement, at law or in equity or admiralty or before any federal, state,
local,
foreign or other governmental authority, board, agency, commission or
instrumentality, has any such claim, dispute, action, suit, proceeding or
investigation been pending or threatened, during the 12 month period preceding
the date hereof;
(b) there
is
no outstanding judgment, order, writ, ruling, injunction, stipulation or
decree
of any court, arbitrator or federal, state, local, foreign or other governmental
authority, board, agency, commission or instrumentality, against or materially
affecting Synutra or any of the Subsidiaries; and
(c) neither
Synutra nor any of the Subsidiaries has received any written or verbal inquiry
from any federal, state, local, foreign or other governmental authority,
board,
agency, commission or instrumentality concerning the possible violation of
any
law, rule or regulation or any matter disclosed in respect of its
business.
ARTICLE
IV
Each
Seller, severally, represents and warrants to the Company and the Shareholder
that now and/or as of the closing:
4.1 Title
to Shares.
Such
Seller is the legal and beneficial owner of the Synutra Shares to be transferred
to the Company by such Seller, and upon consummation of the exchange
contemplated herein, the Company will acquire from such Seller good and
marketable title to such Shares, free and clear of all Liens excepting only
such
restrictions upon transfer, if any, as may be imposed by Applicable
Law.
4.2 Due
Authorization.
Each
Seller has all requisite power and authority to execute and deliver this
Agreement, and to consummate the transactions contemplated hereby and thereby.
This Agreement constitutes the valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as may be
affected by bankruptcy, insolvency, moratoria or other similar laws affecting
the enforcement of creditors' rights generally and subject to the qualification
that the availability of equitable remedies is subject to the discretion
of the
court before which any proceeding therefore may be brought.
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(a) Each
Seller is acquiring the Company Shares for investment for such Seller's own
account and not as a nominee or agent, and not with a view to the resale
or
distribution of any part thereof, and such Seller has no present intention
of
selling, granting any participation in, or otherwise distributing the same.
Each
Seller further represents that he does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any
of the
Company Shares.
(b) Each
Seller understands that the Company Shares are not registered under the Act
on
the ground that the sale and the issuance of securities hereunder is exempt
from
registration under the Act pursuant to Section 4(2) thereof, and that the
Company's reliance on such exemption is predicated on such Seller's
representations set forth herein. Such Seller is an “accredited investor” as
that term is defined in Rule 501(a) of Regulation D under the Act.
4.4 Investment
Experience.
Each
Seller acknowledges that he can bear the economic risk of its investment,
and
has such knowledge and experience in financial and business matters that
it is
capable of evaluating the merits and risks of the investment in the Company
Shares.
4.5 Information.
The
Sellers have carefully reviewed such information as each Seller deemed necessary
to evaluate an investment in the Company Shares. To the full satisfaction
of
each Seller, it has been furnished all materials that it has requested relating
to the Company and the issuance of the Company Shares hereunder, and each
Seller
has been afforded the opportunity to ask questions of representatives of
the
Company to obtain any information necessary to verify the accuracy of any
representations or information made or given to the Sellers. Notwithstanding
the
foregoing, nothing herein shall derogate from or otherwise modify the
representations and warranties of the Company set forth in this Agreement,
on
which each of the Sellers has relied in making an exchange of the Synutra
Shares
for the Company Shares.
4.6 Restricted
Securities.
Each
Seller understands that the Company Shares may not be sold, transferred,
or
otherwise disposed of without registration under the Act or an exemption
there
from, and that in the absence of an effective registration statement covering
the Company Shares or any available exemption from registration under the
Act,
the Company Shares must be held indefinitely. Each Seller is aware that the
Company Shares may not be sold pursuant to Rule 144 promulgated under the
Act
unless all of the conditions of that Rule are met. Among the conditions for
use
of Rule 144 may be the availability of current information to the public
about
the Company.
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ARTICLE
V
5.1 Further
Assurances.
Each of
the Parties shall use its reasonable commercial efforts to proceed promptly
with
the transactions contemplated herein, to fulfill the conditions precedent
for
such party’s benefit or to cause the same to be fulfilled and to execute such
further documents and other papers and perform such further acts as may be
reasonably required or desirable to carry out the provisions of this Agreement
and to consummate the transactions contemplated herein.
ARTICLE
VI
6.1 Items
to be delivered to the Sellers prior to or at Closing by the
Company.
(a) Certificate
of Incorporation and amendments thereto, By-laws and amendments thereto,
certificate of good standing in the Company’s state of
incorporation;
(b) all
applicable schedules hereto;
(c) all
minutes and resolutions of board of director and shareholder meetings in
possession of the Company;
(d) shareholder
list;
(e) all
financial statements and all tax returns in possession of the
Company;
(f) resolution
from the Company’s Board appointing the designees of the Sellers to the
Company’s Board of Directors;
(g) resolution
from the Company’s Board, and if applicable, shareholder resolutions approving
this transaction and authorizing the issuances of the shares
hereto;
(h) letters
of resignation from the Company’s current officers and directors to be effective
upon Closing and after the appointments described in this section;
(i) certificates
representing shares of the Company Shares issued in the denominations as
set
forth opposite the respective names of Sellers and/or their designees on
Schedule I to this Agreement and the Financial Consultant;
(j) any
other
document reasonably requested by the Sellers that it deems necessary for
the
consummation of this transaction.
6.2 Items
to be delivered to the Company prior to or at Closing by Synutra and the
Sellers.
(a) all
applicable schedules hereto;
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(b) instructions
from Synutra appointing its designees to the Company’s Board of
Directors;
(c) share
certificates and duly executed stock powers from the Sellers transferring
the
number of Synutra Shares set forth opposite their respective names on Schedule
I
to this Agreement to the Company;
(d) resolutions
from the Board of Directors of Synutra, if applicable, and shareholder
resolutions approving the transactions contemplated hereby; and
(e) any
other
document reasonably requested by the Company that it deems necessary for
the
consummation of this transaction.
ARTICLE
VII
7.1 Conditions
Precedent to Closing.
The
obligations of the Parties under this Agreement shall be and are subject
to
fulfillment, prior to or at the Closing, of each of the following
conditions:
(a) That
each
of the representations and warranties of the Parties contained herein shall
be
true and correct at the time of the Closing date as if such representations
and
warranties were made at such time except for changes permitted or contemplated
by this Agreement.
(b) That
the
Parties shall have performed or complied with all agreements, terms and
conditions required by this Agreement to be performed or complied with by
them
prior to or at the time of the Closing; and
(c) The
Company shall have cancelled approximately 1,517,500 shares of Common Stock
owned by the Shareholder and/or his Affiliate(s).
(d) Xxxxx
Xxxxx, Xxxxx Xxxxx and Xxxx Xxxxx will enter into a purchase agreement to
sell
their shares as designated by WestPark Capital, Inc.
7.2 Conditions
to Obligations of Sellers.
The
obligations of Sellers shall be subject to fulfillment prior to or at the
Closing, of each of the following conditions:
(a) The
Company shall have paid all of its the costs and expenses associated with
the
acquisition of the Synutra Shares by the Company;
(b) the
Company shall have received all of the regulatory, shareholder and other
third
party consents, permits, approvals and authorizations necessary to consummate
the transactions contemplated by this Agreement; and
(c) the
shares of the Company’s Common Stock shall continue to be traded on the Bulletin
Board and the Company shall not have received any notification materially
adversely affecting such status.
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(d) The
Company shall have complied with Rule 14(f)(1) of the Exchange Act, if
required.
7.3 Conditions
to Obligations of the Company.
The
obligations of the Company shall be subject to fulfillment at or prior to
or at
the Closing, of each of the following conditions:
(a) Synutra
and the Sellers shall have received all of the regulatory, shareholder and
other
third party consents, permits, approvals and authorizations necessary to
consummate the transactions contemplated by this Agreement.
ARTICLE
VIII
8.1 Indemnity
of the Company, Xxxxx and the Shareholder.
The
Company, Xxxxx and the Shareholder severally agree as to defend, indemnify
and
hold harmless each Seller from and against, and to reimburse each Seller
with
respect to, all liabilities, losses, costs and expenses, including, without
limitation, reasonable attorneys’ fees and disbursements (collectively the
“Losses”) asserted against or incurred by such Seller by reason of, arising out
of, or in connection with any material breach of any representation or warranty
contained in this Agreement made by the Company or the Shareholder or in
any
document or certificate delivered by the Company or the Shareholder pursuant
to
the provisions of this Agreement or in connection with the transactions
contemplated thereby.
8.2 Indemnity
of the Sellers.
Each of
the Sellers severally, agrees to defend, indemnify and hold harmless the
Company, Xxxxx and the Shareholder from and against, and to reimburse the
Company and the Shareholder with respect to, all Losses, including, without
limitation, reasonable attorneys’ fees and disbursements, asserted against or
incurred by the Company, Xxxxx or the Shareholder by reason of, arising out
of,
or in connection with any material breach of any representation or warranty
contained in this Agreement and made by the applicable Seller or in any document
or certificate delivered by the applicable Seller pursuant to the provisions
of
this Agreement or in connection with the transactions contemplated thereby,
it
being understood that each Seller shall have responsibility hereunder only
for
the representations and warranties made by such Seller.
8.3 Indemnification
Procedure.
A party
(an “Indemnified Party”) seeking indemnification shall give prompt notice to the
other party (the “Indemnifying Party”) of any claim for indemnification arising
under this Article VIII. The Indemnifying Party shall have the right to assume
and to control the defense of any such claim with counsel reasonably acceptable
to such Indemnified Party, at the Indemnifying Party’s own cost and expense,
including the cost and expense of reasonable attorneys’ fees and disbursements
in connection with such defense, in which event the Indemnifying Party shall
not
be obligated to pay the fees and disbursements of separate counsel for such
in
such action. In the event, however, that such Indemnified Party’s legal counsel
shall determine that defenses may be available to such Indemnified Party
that
are different from or in addition to those available to the Indemnifying
Party,
in that there could reasonably be expected to be a conflict of interest if
such
Indemnifying Party and the Indemnified Party have common counsel in any such
proceeding, or if the Indemnified Party has not assumed the defense of the
action or proceedings, then such Indemnifying Party may employ separate counsel
to represent or defend such Indemnified Party, and the Indemnifying Party
shall
pay the reasonable fees and disbursements of counsel for such Indemnified
Party.
No settlement of any such claim or payment in connection with any such
settlement shall be made without the prior consent of the Indemnifying Party
which consent shall not be unreasonably withheld.
-11-
ARTICLE
IX
9.1 Termination.
This
Agreement may be terminated at any time before or, at Closing, by:
(a) The
mutual agreement of the Parties;
(b) Any
party
if:
(i) Any
provision of this Agreement applicable to a party shall be materially untrue
or
fail to be accomplished; or
(ii) Any
legal
proceeding shall have been instituted or shall be imminently threatening
to
delay, restrain or prevent the consummation of this Agreement;
(c) Upon
termination of this Agreement for any reason, in accordance with the terms
and
conditions set forth in this paragraph, each said party shall bear all costs
and
expenses as each party has incurred.
ARTICLE
X
Within
thirty days after the Company has filed required financial statements pursuant
to Form 8-k, the Company shall file, at its expense, with the U.S.
Securities and Exchange Commission a registration statement covering the
resale
of Common Shares owned by Financial Consultant, Westpark Capital and their
designees, the resale of which will be subject to (a) a leakage agreement
reasonably acceptable to the Company, and (b) the selling shareholders
depositing the Common Shares in a brokerage account with Westpark
Capital.
ARTICLE
XI
11.1 Survival
of Representations, Warranties and Agreements.
All
representations and warranties and statements made by a party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for two years. Each of the parties hereto is executing
and carrying out the provisions of this agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
agreement or at the closing of the transactions herein provided for and not
upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party
or
any other person other than as specifically set forth herein.
-12-
11.2 Access
to Books and Records.
During
the course of this transaction through Closing, each party agrees to make
available for inspection all corporate books, records and assets, and otherwise
afford to each other and their respective representatives, reasonable access
to
all documentation and other information concerning the business, financial
and
legal conditions of each other for the purpose of conducting a due diligence
investigation thereof. Such due diligence investigation shall be for the
purpose
of satisfying each party as to the business, financial and legal condition
of
each other for the purpose of determining the desirability of consummating
the
proposed transaction. The Parties further agree to keep confidential and
not use
for their own benefit, except in accordance with this Agreement any information
or documentation obtained in connection with any such
investigation.
11.3 Further
Assurances.
If, at
any time after the Closing, the parties shall consider or be advised that
any
further deeds, assignments or assurances in law or that any other things
are
necessary, desirable or proper to complete the merger in accordance with
the
terms of this agreement or to vest, perfect or confirm, of record or otherwise,
the title to any property or rights of the parties hereto, the Parties agree
that their proper officers and directors shall execute and deliver all such
proper deeds, assignments and assurances in law and do all things necessary,
desirable or proper to vest, perfect or confirm title to such property or
rights
and otherwise to carry out the purpose of this Agreement, and that the proper
officers and directors the parties are fully authorized to take any and all
such
action.
11.4 Notice.
All
communications, notices, requests, consents or demands given or required
under
this Agreement shall be in writing and shall be deemed to have been duly
given
when delivered to, or received by prepaid registered or certified mail or
recognized overnight courier addressed to, or upon receipt of a facsimile
sent
to, the party for whom intended, as follows, or to such other address or
facsimile number as may be furnished by such party by notice in the manner
provided herein:
|
Attention:
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If
to the Sellers and Synutra:
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0000
Xxxxxxxx Xxx
Xxxxxxxxxxxx,
XX 00000
Telecopy
No.: (000) 000-0000
Attn:
Xxxxxx Xxxxx
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With
a copy to:
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Xxxx
& Xxxxx
0000
Xxxxxxx Xxxx Xxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxx, Esq.
Telecopy
No.: (000) 000-0000
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-13-
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If
to the Company, Xxxxx and the Shareholder
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000-000
Xxxxxx Xxxxxx
Xxxxxxxxx,
XX V62 152
Attention:
Xxxxxx Xxxxx
Telecopy
No.: (000) 000-0000
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11.5 Entire
Agreement.
This
Agreement, the Disclosure Schedules and any instruments and agreements to
be
executed pursuant to this Agreement, sets forth the entire understanding
of the
parties hereto with respect to its subject matter, merges and supersedes
all
prior and contemporaneous understandings with respect to its subject matter
and
may not be waived or modified, in whole or in part, except by a writing signed
by each of the parties hereto. No waiver of any provision of this Agreement
in
any instance shall be deemed to be a waiver of the same or any other provision
in any other instance. Failure of any party to enforce any provision of this
Agreement shall not be construed as a waiver of its rights under such
provision.
11.6 Successors
and Assigns.
This
Agreement shall be binding upon, enforceable against and inure to the benefit
of, the parties hereto and their respective heirs, administrators, executors,
personal representatives, successors and assigns, and nothing herein is intended
to confer any right, remedy or benefit upon any other person. This Agreement
may
not be assigned by any party hereto except with the prior written consent
of the
other parties, which consent shall not be unreasonably withheld.
11.7 Governing
Law.
This
Agreement shall in all respects be governed by and construed in accordance
with
the laws of the State of Delaware are applicable to agreements made and fully
to
be performed in such state, without giving effect to conflicts of law
principles.
11.8 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
11.9 Construction.
Headings contained in this Agreement are for convenience only and shall not
be
used in the interpretation of this Agreement. References herein to Articles,
Sections and Exhibits are to the articles, sections and exhibits, respectively,
of this Agreement. The Disclosure Schedule is hereby incorporated herein
by
reference and made a part of this Agreement. As used herein, the singular
includes the plural, and the masculine, feminine and neuter gender each includes
the others where the context so indicates.
11.10 Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, this Agreement shall be interpreted and enforceable
as
if such provision were severed or limited, but only to the extent necessary
to
render such provision and this Agreement enforceable.
-14-
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VORSATECH
VENTURES, INC., a Delaware corporation
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By:
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/s/
Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
President
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SYNUTRA,
INC., a Illinois corporation
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By:
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/s/
Xxxxxx Xxxxx
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By:
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/s/
Xxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
President
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Title:
Chairman
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SELLERS:
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Beams
Power Investment Corporation
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By:
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/s/
Xxxxxx Xxxx
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Name:
Xxxxxx Xxxx
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Title:
President
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Strong
Gold Finance Corporation
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By:
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/s/
Xxxxx Xx Bin
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Name:
Xxxxx Xx Bin
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Title:
President
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-15-
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XXXXX:
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx
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SHAREHOLDER:
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Berlin
Capital Investments, Inc.
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By:
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/s/
Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
President
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Witness:
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FirstAlliance
Financial Group, Inc.
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WestPark
Capital Inc.
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By:
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/s/
Xxxxxxx Xxxxx
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By:
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/s/
Xxxxxxx Xxxxxxxxx
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Name:
Xxxxxxx Xxxxx
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Name:
Xxxxxxx Xxxxxxxxx
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Title:
Chief Executive Officer
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Title:
Chief Executive Officer
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SCHEDULE
I
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||||
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Name
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Number
of Company Shares
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Beams
Power Investment Corporation
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36,000,000
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Strong
Gold Finance Corporation
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10,000,000
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-16-
ITEM
3.1
SUBSIDIARIES
Qingdao
Shenyuan Dairy Company Limited
Qingdao
Shengqiaozhi Dairy Company Limited
Zhangjiakou
Shenyuan Dairy Company Limited
Beian
Yipin Dairy Company Limited
Luobei
Shenyuan Dairy Company Limited
Qingdao
Baby Nutrition Research Company Limited
-17-
Table
of Contents
Page
|
ARTICLE
I
|
THE
EXCHANGE
|
1
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|
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1.1
|
The
Exchange
|
1
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|
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1.2
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Time
and Place of Closing
|
2
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1.3
|
Effective
Time
|
2
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|
|
1.4
|
Escrow
|
2
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ARTICLE
II
|
2
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||
|
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2.1
|
Due
Organization and Qualification; Due Authorization
|
2
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|
|
2.2
|
No
Conflicts or Defaults
|
3
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|
2.3
|
Capitalization
|
3
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2.4
|
Financial
Statements
|
3
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|
|
2.5
|
No
Assets or Liabilities
|
3
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|
|
2.6
|
Taxes
|
4
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2.7
|
Indebtedness;
Contracts; No Defaults
|
4
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2.8
|
Real
Property
|
4
|
|
|
2.9
|
Compliance
with Law
|
4
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|
|
2.10
|
Permits
and Licenses
|
4
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|
|
2.11
|
Litigation
|
4
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|
|
2.12
|
Insurance
|
5
|
|
|
2.13
|
Patents;
Trademarks and Intellectual Property Rights
|
5
|
|
|
2.14
|
Trading
|
5
|
|
|
2.15
|
Securities
Law Compliance
|
5
|
|
|
|
|
|
|
ARTICLE
III
|
REPRESENTATIONS
AND WARRANTIES OF SYNUTRA
|
5
|
|
|
|
3.1
|
Due
Organization and Qualification; Subsidiaries; Due
Authorization
|
5
|
|
|
3.2
|
No
Conflicts or Defaults
|
6
|
|
|
3.3
|
Capitalization
|
6
|
|
|
3.4
|
Taxes
|
6
|
|
|
3.5
|
Compliance
with Law
|
7
|
|
|
3.6
|
Litigation
|
7
|
|
|
|
|
|
|
ARTICLE
IV
|
REPRESENTATION
AND WARRANTIES OF THE SELLERS
|
7
|
|
|
|
4.1
|
Title
to Shares
|
7
|
|
|
4.2
|
Due
Authorization
|
7
|
|
|
4.3
|
Purchase
for Investment
|
8
|
|
|
4.4
|
Investment
Experience
|
8
|
|
|
4.5
|
Information
|
8
|
|
|
4.6
|
Restricted
Securities
|
8
|
-i-
Table
of Contents
(continued)
Page
|
|
|
|
|
|
ARTICLE
V
|
COVENANTS
|
9
|
|
|
|
5.1
|
Further
Assurances
|
9
|
|
|
|
|
|
|
ARTICLE
VI
|
DELIVERIES
|
9
|
|
|
|
6.1
|
Items
to be delivered to the Sellers prior to or at Closing by the
Company
|
9
|
|
|
6.2
|
Items
to be delivered to the Company prior to or at Closing by Synutra
and the
Sellers
|
9
|
|
|
|
|
|
|
ARTICLE
VII
|
CONDITIONS
PRECEDENT
|
10
|
|
|
|
7.1
|
Conditions
Precedent to Closing
|
10
|
|
|
7.2
|
Conditions
to Obligations of Sellers
|
10
|
|
|
7.3
|
Conditions
to Obligations of the Company
|
11
|
|
|
|
|
|
|
ARTICLE
VIII
|
INDEMNIFICATION
|
11
|
|
|
|
8.1
|
Indemnity
of the Company, Xxxxx and the Shareholder
|
11
|
|
|
8.2
|
Indemnity
of the Sellers
|
11
|
|
|
8.3
|
Indemnification
Procedure
|
11
|
|
|
|
|
|
|
ARTICLE
IX
|
TERMINATION
|
12
|
|
|
|
9.1
|
Termination
|
12
|
|
|
|
|
|
|
ARTICLE
X
|
COVENANTS
SUBSEQUENT TO CLOSING
|
12
|
|
|
|
|
|
|
|
ARTICLE
XI
|
MISCELLANEOUS
|
12
|
|
|
|
11.1
|
Survival
of Representations, Warranties and Agreements
|
12
|
|
|
11.2
|
Access
to Books and Records
|
13
|
|
|
11.3
|
Further
Assurances
|
13
|
|
|
11.4
|
Notice
|
13
|
|
|
11.5
|
Entire
Agreement
|
14
|
|
|
11.6
|
Successors
and Assigns
|
14
|
|
|
11.7
|
Governing
Law
|
14
|
|
|
11.8
|
Counterparts
|
14
|
|
|
11.9
|
Construction
|
14
|
|
|
11.10
|
Severability
|
14
|
-ii-