EXHIBIT 10.1
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT
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Acquisition Agreement, made this 6th day of September, 2001 among:
China Gateway Holding Limited
▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇
a Delaware corporation
("Buyer")
and
Chemical Consortium, Inc.
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
a , Washington corporation
(the "Company")
and
▇. ▇▇▇▇▇, Ph.D.
A resident of the State of Washington
(the "Seller")
WHEREAS;
A. Buyer, is a United States publicly held, fully reporting
corporation, currently trading on the Pink Sheets.
B. Buyer, currently is not engaged in any business nor owns any assets,
and directly or through one or more subsidiaries, desires to engage in the
business of manufacturing and sales of chemicals.
C. Company, is engaged in the business of manufacturing and sales of
chemicals in the State of Washington.
D. The parties hereto deem it to be in the best interest of each of
them that Buyer purchase 100 percent of the issued and outstanding capital stock
of the Company, and generally succeed to the business of the Company, all
pursuant to such terms, provisions and conditions as the parties hereto shall
agree.
NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises
and of the mutual promises and covenants hereinafter set forth, the parties
hereto agree as follows:
A. PURCHASE AND PAYMENT
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1. Purchase and Sale of Stock.
1.1 Buyer agrees to purchase from Seller and Seller agrees to sell,
assign, transfer and deliver to Buyer 100 percent of the issued and outstanding
stock of the Company owned by the Seller consisting of 10,000,000 shares of the
Company (collectively, the "Stock").
1.2 The purchase and payment for the Stock by Buyer shall take place
at the time and in the manner hereinafter provided, and the sale, assignment,
transfer and delivery of the Stock by Seller, shall take place on the Closing
Date at the Closing as those terms are hereinafter defined, subject to the
fulfillment of the conditions hereinafter provided.
2. Purchase Price.
The aggregate purchase price of the Stock (the "Purchase Price"),
shall be Forty Four Million Eight Hundred Thousand (44,800,000) newly issued
common shares of the Buyer. The shares comprising the Purchase Price shall be
transferred to the Seller at closing.
B. REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer hereby warrants and represents to Seller that, as of the date hereof,
the following statements are true and correct.
1. Corporate Status.
The Buyer is (a) duly organized, validly existing and in good standing
under the laws of Delaware; (b) has full corporate power to own all of its
properties and carry on its business as it is now being conducted and (c) is
qualified to do business as a foreign corporation in each of the jurisdictions
in which it operates and the character of the properties owned by the Buyer or
the nature of the business transacted by the Buyer does not make qualification
necessary in any other jurisdiction or jurisdictions.
2. Shares Issued and Outstanding.
2.1 The Buyer is authorized to issue 50,000,000
shares Common Stock, US $0.0001 par value.
2.2 As of this date, the Buyer has issued and outstanding 5,107,158.
The Buyer warrants, that there are no other shares issued and outstanding and
that there are no options or warrants outstanding except as noted in this
paragraph herein.
3. Authority to Buy.
Buyer have full right, power and authority to buy the Company and
deliver the Stock to the Seller in accordance with the terms of this Agreement,
and otherwise to consummate and close the transaction provided for in this
Agreement in the manner and upon the terms herein specified.
4. Period Since Most Recent Financials.
From the date of the most recent financial statements as filed with the
Securities and Exchange Commission, the Buyer has:
5.1 Not suffered any material adverse change in its financial
condition, assets, liabilities or business.
5.2 Not issued any additional shares of stock, rights or options to
purchase or convert into such stock, or other securities except as noted in this
Agreement in Paragraph 2 above.
5.3 To the best knowledge of Buyer, it not incurred any liabilities,
contingent or otherwise, except those stated in the balance sheet of the Buyer
as of June 30, 2001, or described in any notes accompanying said balance sheet.
6. Ownership of Stock.
All of the issued and outstanding shares of capital stock of the Buyer
are owned beneficially and of record with the number of shares owned by each is
set forth in Schedule A hereto.
7. Capital Structure.
The Buyer (a) is authorized by its charter and applicable law to issue
capital stock of the type and having par values as set forth in this Agreement
in Paragraph B2 above; (b) has no issued and outstanding shares of its capital
stock whatever, except as specifically indicated in this Agreement in Paragraph
B2 above, all of which such shares are fully paid and non-assessable; (c) does
not have authorized, issued or outstanding any subscription, option, warrant,
conversion or other rights to the issuance or receipt of shares of its capital
stock except as set forth in this Agreement in Paragraph B2 above; (d) has all
voting rights vested exclusively in the presently issued and outstanding capital
stock; and (e) has outstanding no bonds, debentures or other similar evidences
of indebtedness except as specifically disclosed in this Agreement in Paragraph
B2 above.
8. Regulatory Good Standing.
The Buyer has all material rights, certificates, authorities, permits,
licenses, franchises and other authorizations necessary to and has complied in
material respects with all laws applicable to, the conduct of its business in
the manner and in the areas in which such business is presently being conducted
and all such certificates, authorities, rights, permits, licenses, franchises
and authorizations are valid, in good standing, in full force and effect, under
no orders of suspension or restraints, and subject to no disciplinary,
probationary or other orders. To the best of its knowledge, the Buyer has
engaged in no activity whatever which would cause or lead to proceedings
involving revocation, suspension, restraint, disciplinary action or any other
action whereby any of such certificates, authorities, rights, permits, licenses,
franchises or authorizations, or any part thereof, might be canceled,
terminated, suspended, impaired, lost or otherwise adversely affected, and no
action or proceeding looking to or contemplating any of the foregoing is pending
or to the Buyer's knowledge threatened.
9. Litigation.
The Buyer is not a party to any pending or to its knowledge threatened
suit, action, proceeding, prosecution or litigation which might materially
adversely affect the financial condition, business, assets, properties,
certificates, rights, authorities, franchises or authorizations of the Buyer, or
materially interfere therewith, nor to the knowledge of the Buyer is there any
threatened or pending governmental investigation involving the Buyer or any of
its operations, including inquiries, citations or complaints by any federal,
state or local administration or agency, which would materially adversely affect
the financial condition, business, assets or properties of the Buyer; and there
are no outstanding, existing or pending judgments, orders, decrees, rulings,
directives, stipulations or other mandates of any court or any public or
quasi-public agency, body or official which have been in any way violated as
they relate to or affect the Buyer or any of the Buyer's properties, businesses,
operations, affairs or activities.
10. Defaults.
There are no material defaults on the part of the Buyer under any
contract, lease, mortgage, pledge, credit agreement, title retention agreement,
security agreement, lien, encumbrance or any other commitment, contract,
agreement or undertaking to which the Buyer or any of its subsidiaries are a
party.
11. Tax Returns.
All returns for governmental income taxes, surtaxes, excess profits
taxes, franchise taxes, sales and use taxes, real and personal property taxes
and any and all other taxes to which the Buyer, or its assets, operations or
income may be subject, due as of the date hereof, have been duly prepared and
filed in good faith and all taxes shown thereon have been paid or are accrued on
the books of the Buyer.
12. Tax Accruals.
All other taxes and other assessments and levies which the Buyer is
required by law to withhold or to collect have been duly withheld and collected
and have been paid over to the proper governmental authorities or are held by
the Buyer for such payment and all such withholding and collections and all
other payments unpaid and due in connection therewith as of June 30, 2001 are
duly reflected in the balance sheet of the Buyer as of said date and as of the
date of Closing.
13. Labor Problems.
No labor or labor union problems or difficulties, arbitrations,
investigations, litigations or similar proceedings with respect thereto, are
presently existing, suffered, pending or threatened with respect to the Buyer or
any of its subsidiaries.
14. Compliance with Law.
The Buyer conform in material respects with all applicable
regulations, laws and statutes, including but not limited to U.S. securities
law, income tax law, and other such laws, rules, regulations and ordinances.
15. Truth of Representation.
No representation by the Buyer made in this Agreement and no statement
made in any certificate or schedule furnished in connection with the transaction
herein contemplated contains or will contain any knowingly untrue statement of a
material fact or knowingly omits or will omit to state any material fact
reasonably necessary to make any such representation or any such statement not
misleading to a prospective purchaser of the Stock.
C. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
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Seller and the Company hereby warrant and represent to Buyer that, as of
the date hereof, the following statements are true and correct.
1. Corporate Status.
The Company is (a) duly organized, validly existing and in good
standing under the laws of the State of Washington; (b) has full corporate power
to own all of its properties and carry on its business as it is now being
conducted; and (c) is qualified to do business in each of the jurisdictions in
which it operates and the character of the properties owned by the Company or
the nature of the business transacted by the Company does not make qualification
necessary in any other jurisdiction or jurisdictions.
2. Authority to Sell.
Seller have full right, power and authority to sell, transfer and
deliver the Stock owned by such Seller to Buyer in accordance with the terms of
this Agreement, and otherwise to consummate and close the transaction provided
for in this Agreement in the manner and upon the terms herein specified.
3. Capital Structure.
The Company (a) is authorized by its charter and applicable law to
issue up to 50,000 shares capital stock .0001 par vale; (b) has no issued and
outstanding shares of its capital stock whatever, except as specifically
indicated in this Agreement in Paragraph A1 above, all of which such shares are
fully paid and non-assessable; (c) does not have authorized, issued or
outstanding any subscription, option, warrant, conversion or other rights to the
issuance or receipt of shares of its capital stock except as set forth in this
Agreement in Paragraph A1 above; (d) has all voting rights vested exclusively in
the presently issued and outstanding capital stock; and (e) has outstanding no
bonds, debentures or other similar evidences of indebtedness except as
specifically disclosed in this Agreement in Paragraph A1 above.
4. Ownership of Stock.
▇. ▇▇▇▇▇, owns all of the issued and outstanding
shares of capital stock of the Company. Seller holds such stock free and
clear of all liens, claims, debts, encumbrances and assessments, and any and all
restrictions as to sale, assignment or transferability thereof. Seller has full
rights, power and authority to sell, transfer and deliver all of the shares of
stock owned by said Seller and the certificates therefore, sold hereunder, to
Buyer in accordance with the terms of this Agreement, and otherwise to
consummate and close the transaction provided for in this Agreement in the
manner and upon the terms herein specified.
5. Title to Assets.
The Company states: (a) that it has good and marketable title to all
of its assets, as set forth on Schedule B hereto, which good and marketable
title is free and clear of all mortgages, pledges, liens, credit agreements,
title retention agreements, security agreements, taxes, claims, debts and other
obligations and encumbrances except as noted in Schedule B hereto (b) the lien,
if any, of current taxes not yet due and payable and (c) such additional
encumbrances or imperfections of title, if any, which are not substantial in
character, amount or extent and which do not materially detract from the value,
or materially interfere with the present or future intended use, of the
properties subject thereto or affected thereby, and which do not otherwise
materially impair or affect the business and operations of the Company.
6. Peaceable Possession of Assets.
The ownership and possession of all of the assets of the Company have
been peaceable and undisturbed and the title thereto has never been disputed or
questioned to the knowledge of the Company; nor does the Company know of any
facts by reason of which the possession or title thereof by the Company might be
disturbed or questioned or by reason of which any claim to its assets might
arise or be set up adverse to the Company.
7. Regulatory Good Standing.
The Company has all material rights, certificates, authorities,
permits, licenses, franchises and other authorizations necessary to and has
complied in material respects with all laws applicable to, the conduct of its
business in the manner and in the areas in which such business is presently
being conducted and all such certificates, authorities, rights, permits,
licenses, franchises and authorizations are valid, in good standing, in full
force and effect, under no orders of suspension or restraints, and subject to no
disciplinary, probationary or other orders. To the best of its knowledge, the
Company has engaged in no activity whatever which would cause or lead to
proceedings involving revocation, suspension, restraint, disciplinary action or
any other action whereby any of such certificates, authorities, rights, permits,
licenses, franchises or authorizations, or any part thereof, might be canceled,
terminated, suspended, impaired, lost or otherwise adversely affected, and no
action or proceeding looking to or contemplating any of the foregoing is pending
or to the Company's knowledge threatened. The foregoing shall not be deemed to
constitute a warranty or representation that the Company has not heretofore or
shall not hereafter suffer to be committed minor and unintentional violations of
any governmental regulations of such nature as not to cause either suspension or
revocation of the Company's operating authority.
8. Litigation.
The Company is not a party to any pending or to its knowledge
threatened suit, action, proceeding, prosecution or litigation which might
materially adversely affect the financial condition, business, assets,
properties, certificates, rights, authorities, franchises or authorizations of
the Company, or materially interfere therewith, nor to the knowledge of the
Company is there any threatened or pending governmental investigation involving
the Company or any of its operations, including inquiries, citations or
complaints by any federal, state or local administration or agency, which would
materially adversely affect the financial condition, business, assets or
properties of the Company; and there are no outstanding, existing or pending
judgments, orders, decrees, rulings, directives, stipulations or other mandates
of any court or any public or quasi-public agency, body or official which have
been in any way violated as they relate to or affect the Company or any of the
Company's properties, businesses, operations, affairs or activities.
9. Defaults.
There are no material defaults on the part of the Company under any
contract, lease, mortgage, pledge, credit agreement, title retention agreement,
security agreement, lien, encumbrance or any other commitment, contract,
agreement or undertaking to which the Company is a party.
10. Tax Returns.
All returns for governmental income taxes, surtaxes, excess profits
taxes, franchise taxes, sales and use taxes, real and personal property taxes
and any and all other taxes to which the Company, or its assets, operations or
income may be subject, due as of the date hereof, have been duly prepared and
filed in good faith and all taxes shown thereon have been paid or are accrued on
the books of the Company.
11. Tax Accruals.
All other taxes and other assessments and levies which the Company is
required by law to withhold or to collect have been duly withheld and collected
and have been paid over to the proper governmental authorities or are held by
the Company for such payment and all such withholding and collections and all
other payments unpaid and due in connection therewith as of June 30, 2001 are
duly reflected in the balance sheet of the Company as of said date.
12. Labor Problems.
No labor or labor union problems or difficulties, strikes, walk-outs,
slow downs, job actions, boycotts, arbitrations, investigations, litigations or
similar proceedings with respect thereto, are presently existing, suffered,
pending or threatened with respect to the Company, its employees, business
operations, assets or properties.
13. Compliance with Law.
All of the properties, assets and business operations of the Company
conform in material respects with all applicable ordinances, regulations, laws
and statutes, including but not limited to building, zoning, safety, highway and
other such laws, rules, regulations and ordinances of the State of Washington.
14. Infringements.
The Company has never been charged with infringement or violation of
any adversely held patent, trademark, trade name, or copyright, with claims
reading on operations of the Company or on apparatus or methods employed by the
Company in effecting the same, which would materially adversely affect any
operation of the Company, nor is the Company using or in any way making use of
any confidential information or trade secrets, of any former employer or any
present or past employee of the Company except as a result of the acquisition of
the business of such former employer.
15. Truth of Representation.
No representation by the Company made in this Agreement and no
statement made in any certificate or schedule furnished in connection with the
transaction herein contemplated contains or will contain any knowingly untrue
statement of a material fact or knowingly omits or will omit to state any
material fact reasonably necessary to make any such representation or any such
statement not misleading to a prospective purchaser of the Stock.
D. COVENANTS OF THE BUYER, SELLER AND THE COMPANY
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The Buyer, Seller and the Company (hereinafter "the Parties") hereby
covenant and agree as follows:
1. Inspection of Records.
During the period from the date hereof through the Closing Date as
that term is hereinafter defined (the "Contract Period"), the Parties shall have
the right and opportunity at its own expense to make such examination and
investigation of the Buyer's and the Company's business, properties and affairs
as the Parties may deem reasonably necessary or desirable for all purposes
relating to this Agreement and to that end, throughout the Contract Period, the
Buyer and the Company will allow and grant the Parties, its officers, counsel,
accountants, auditors and executive employees full, free and continuous access,
during normal business hours and without interference with the conduct of the
Buyer's and the Company's business, to all of the premises, properties,
contracts, commitments, leases, books, papers, documents, instruments, books of
account, minutes and other records of the Buyer and the Company and will furnish
and provide the Parties with all such financial and other statements and all
such additional information and particulars in respect of the business,
properties and affairs of the Buyer and Company as the Parties may, from time to
time during the Contract Period, reasonably request or require.
2. Conduct of Business.
During the period from the date hereof to the Closing Date as that
term is hereinafter defined, the Buyer and Company shall:
2.1 Conduct their business and operations solely in the usual, normal
and ordinary course;
2.2 Issue no additional shares of stock, options, calls or other
rights to purchase such stock, or any other securities of any kind whatever;
2.3 Make no distributions to their shareholders, as shareholders, of
any of its assets or properties by way of dividends, purchase of shares,
redemption or otherwise.
2.4 Not transfer to any person, firm or corporation any customers,
customer lists or customer accounts of the Buyer or Company;
2.5 Make no increase of any kind in any salary, wages, bonus or
compensation of any officer, employee, representative or agent of the Buyer or
Company or pay any extra compensation of any kind whatever to any of such
persons;
2.6 Not sell, transfer or dispose of any of the Stock;
2.7 Not sell, transfer or dispose of any of its business, properties
or assets, tangible or intangible, except for a full and fair consideration in
the usual and ordinary course of business;
2.8 Make no purchases or acquisitions of any real or personal property
nor increase or decrease inventory, except in the usual and ordinary course of
its business;
2.9 Not subject any of its business, property or assets whatever,
tangible or intangible, to any mortgage, lien, pledge, hypothecation or
encumbrance in any manner except for a full and fair consideration in the usual
and ordinary course of business;
2.10 Not borrow any money, make any unusual or extraordinary
expenditure or incur or become liable for any obligations or liabilities except
current liabilities in the usual and ordinary course of its business;
2.11 Not make any loans or advances or extend any credit except in
the usual and ordinary course of its business.
3. Publicity.
All notices to third parties other than Parties and all other
publicity concerning the transactions contemplated by this Agreement shall be
planned and coordinated jointly by Buyer and by the Company.
4. Warranties and Representations.
The Buyer and Company will promptly furnish to all the Parties copies
of any and all financial statements of the Buyer and Company prepared by or for
the Buyer or Company subsequent to the date hereof, and will promptly furnish to
and advise the Parties of any and all material information, details, facts and
circumstances concerning the Buyer's or Company's financial condition, or
business arising subsequent to the date of this Agreement by reason of which any
changes, modifications, amendments, additions or deletions from any Schedule
annexed hereto or any warranty, representation, covenant or condition recited
herein would be necessary to render the same true and correct in material
respects and not materially false or misleading, as of the date such
information, details, facts and circumstances are furnished to the Parties.
E. MANAGEMENT
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Upon the Closing under this Agreement in accordance with Paragraph H below, the
Buyer's corporate headquarters will relocated to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, the current Board of Directors will resign and ▇.
▇▇▇▇▇ will be elected to the Board of Directors of the Buyer as its Chairman.
F. CONDITIONS PRECEDENT TO CLOSING
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All obligations of the Buyer, Seller and the Company under this Agreement
are subject to the fulfillment of each of the following conditions, in addition
to the fulfillment of any and all other conditions set forth in this Agreement:
1. Effectiveness of Warranties.
Each and every one of the warranties and representations of the Buyer
as hereinbefore set forth in Paragraph B hereof, and of the Seller and the
Company as hereinbefore set forth in Paragraph C hereof, shall be true at and as
of the Closing Date as though such representations were made at and as of such
time.
2. Performance of Covenants.
Each and every covenant herein made by Buyer, Seller and the Company,
as set forth in Paragraph D, which is to be performed at or prior to the Closing
Date, shall have been duly performed by such times.
3. Corporate Action.
3.1 Prior to the Closing Date, the Board of Directors of the Company
and of the Buyer shall have duly adopted resolutions to the same effect with
respect to the aforesaid matters.
3.2 Prior to the Closing Date, the Board of Directors of the Company
and of the Buyer shall call a special meeting of their respective shareholders
whereby their respective shareholders shall have duly approved the above Board
of Directors resolutions to the same effect with respect to the aforesaid
matters.
4. Termination.
In the event any of the foregoing conditions shall not be fulfilled
prior to the Closing, unless caused by any action or failure to act on the part
of Parties, any of the Parties shall have the right to terminate the Agreement
by notice thereof in writing to the other, and the parties hereto shall be
restored as far as possible to status quo, whereupon the parties hereto shall
have no further obligations or liabilities hereunder, one against the other,
except for the obligation of Buyer under Section G hereof which shall survive a
termination of this Agreement.
G. INDEMNIFICATION
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1. Parties shall be indemnified as follows:
Seller and the Company shall indemnify and hold harmless the Buyer
from and against any losses, damages or expenses which may be suffered or
incurred by Buyer arising from or by reason of the inaccuracy of any statement,
representation or warranty of Seller or the Company made herein or, in any
schedule hereto or certificate delivered in connection herewith, or the failure
of Seller or the Company to perform any agreement made by them herein. Buyer
shall give Seller prior written notice of any claim, demand, suit or action with
respect to which indemnity may be sought pursuant to this Section. Seller, in
every such case, shall have the right at his sole expense and cost to
participate in contesting the validity or the amount of any such claim, demand,
suit or action. In the event Buyer suffers loss, damage or expense and is
entitled to indemnification under this Section, the amount of any such loss,
damage or expense shall be assessed against and shall be paid by Seller. Seller
shall have no liability under this Section unless a claim for indemnification is
made by the Buyer prior to the Six (6) month anniversary of the Closing.
Notwithstanding anything herein to the contrary, Seller shall have no liability
under this Section for any loss, damage, expense or amount suffered or incurred
by Buyer or the Company (a) as a result of any election made by the Buyer or the
Company subsequent to the Closing under Section 338 of the Internal Revenue Code
of 1954, as amended, or (b) which is covered by insurance maintained by the
Company on the Closing Date.
2. The Buyer shall indemnify the Company and Seller and shall hold the
Company and Seller harmless, from and against any losses, damages or expenses
which may be suffered or incurred by the Company or Seller arising from or by
reason of the inaccuracy of any statement, representation or warranty of the
Buyer made herein or in any schedule hereto or certificate delivered in
connection herewith, or the failure of Buyer to perform any agreement made by it
herein. Seller shall give Buyer prior written notice of any claim, demand, suit
or action with respect to which indemnity may be sought pursuant to this
Section. Buyer, in every such case, shall have the right at his sole expense
and cost to participate in contesting the validity or the amount of any such
claim, demand, suit or action. In the event Seller suffers loss, damage or
expense and is entitled to indemnification under this Section, the amount of any
such loss, damage or expense shall be assessed against and shall be paid by
Buyer. Buyer shall have no liability under this Section unless a claim for
indemnification is made by the Seller prior to the Six (6) month anniversary of
the Closing.
H. CLOSING
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1. Time and Place.
The closing under this Agreement (the "Closing") and all deliveries
hereunder shall take place at the office of the Seller's attorneys office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ on September ___,
2001 or such other date as shall be agreed upon by all the parties ("the Closing
date").
2. Delivery of Documents.
At the Closing, the Company will deliver to the Buyer the following
documents:
2.1 A written opinion, dated on the Closing Date, of counsel
representing the Company, to the effect that the Company has been duly
incorporated and is on the closing date validly existing as a corporation in
good standing under the laws of the state of its incorporation; that the Company
is duly qualified or licensed as a foreign corporation in all other states in
which it does business; that the shares of capital stock delivered by Seller to
Buyer at the closing have been validly issued and are outstanding, fully paid,
and non-assessable, and constitute all of the issued and outstanding shares of
capital stock of the Company; that such counsel knows of no litigation,
proceeding or investigation pending or threatened against the Company or Seller
which might result in any material adverse change in the business, properties or
financial condition of the Company or which questions the validity of this
Agreement or of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, other than as represented elsewhere in
this Agreement; and that to the knowledge of such counsel the sale, transfer,
assignment and delivery by Seller to Buyer of the Stock pursuant to this
Agreement will vest in Buyer all rights, title and interest in and to such Stock
free and clear of all liens, encumbrances, and equities.
2.2 A certificate of the Chief Executive Officer and the Chief
Financial Officer of the Company, dated the Closing Date certifying to the best
of his knowledge, in reasonable detail as Buyer may request on and as of said
date, to the fulfillment, as of the Closing Date, of each and every one of the
conditions precedent to the closing set forth in Paragraph F hereof, and
specifically setting forth each and every change, amendment, modification,
omission or addition to any provision hereof or schedule annexed hereto or
furnished hereunder, necessary to render each and every one of the provisions
hereof or schedules annexed hereto correct and accurate in material respects and
not materially false or misleading.
2.3 Such additional copies or duplicate originals of the above
described documents and such other documents, undertakings and assurances as
Buyer shall reasonably require, all of which documents, undertakings and
assurances shall be delivered to Buyer sufficiently in advance of the Closing
Date, as Buyer shall reasonably require, so as to permit adequate inspection and
examination thereof, all of which documents, undertakings and assurances shall
be in form satisfactory to counsel to Buyer.
I. CONFIDENTIALITY
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All information and documentation provided or to be provided by the Company
or Seller to Buyer in connection with this Agreement and the transactions
contemplated hereby has been and shall be provided in the strictest confidence.
Pending the Closing, Buyer covenants and agrees not to use any of such
information or documentation in or for the benefit of any business engaged in
directly or indirectly by Buyer and not to furnish or disclose any of such
information or documentation to any person or company. If the transactions
contemplated by this Agreement are not consummated, Buyer covenants and agrees
to return all such information and documentation to the Company and not retain
any copies thereof, and Buyer further covenants and agrees to maintain the
confidentiality of such information and documentation and to neither use any of
it in or for the benefit of any business engaged in directly or indirectly by
the Buyer nor furnish or disclose any of it to any person or company.
J. RESCISSION
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The parties hereby agree that the purpose of this Agreement between the
parties herein, is to implement the Company's Business Plan, a copy of which is
attached herein and made a part of this Agreement. As part of said Business
Plan, the parties herein agree that on or before 90 days from execution of this
Agreement, the Company will execute a purchase agreement for a blending and
mixing facility in accordance with said Business Plan and the Seller will
arrange for a minimum of $175,000 USD to be deposited into the Company which
shall be used as a down payment for that purpose, and within the same time
period start an environmental audit of the facility prior to the completion of
the purchase of said facility. In the event Seller fails to do so within the
specified 90 days time period, a majority of the Company's shareholders without
the Seller's shares taken into consideration, may elect to rescind this
Agreement within 180 days from execution of this Agreement, and in such event,
the Seller shall bear all costs associated with said rescission including but
not limited to costs associated with regulatory fees.
K. GENERAL PROVISIONS
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1. Survival of Representations, Warranties and Covenants.
Unless otherwise expressly provided herein, the representations,
warranties, covenants, indemnities and other agreements herein contained shall
be deemed to be continuing and shall survive the consummation of the
transactions contemplated by this Agreement.
2. Diligence.
The parties hereto agree that each shall with reasonable diligence
proceed to take all action which may be reasonably required to consummate the
transaction herein contemplated.
3. Waivers.
Each party hereto may:
3.1 Extend the time for performance of any of the obligations of the
other party;
3.2 Waive in writing any inaccuracies in representations and
warranties made to it contained in this Agreement or any schedule hereto or any
certificate or certificates delivered by any of the other parties pursuant to
this Agreement; and
3.3 Waive in writing the failure of performance of any of the
agreements, covenants, obligations or conditions of the other parties herein set
forth, or alternatively terminate this Agreement for such failure.
4. Non-Waiver.
The waiver by any party hereto of any breach, default, inaccuracy or
failure by another party with respect to any provision in this Agreement or any
schedule hereto shall not operate or be construed as a waiver of any other
provision thereof or of any subsequent breach thereof.
5. Further Assurances.
Each party hereto agrees to execute such further documents or
instruments, requested by the other party, as may be reasonably necessary or
desirable to effect the purposes of this Agreement and to carry out its
provisions, at the expense of the party requesting the same.
6. Entire Agreement.
This Agreement constitutes a complete statement of all the
arrangements, understandings and agreements between the parties, and all prior
memoranda and oral understandings with respect thereto are merged in this
Agreement. There are no representations, warranties, covenants, conditions or
other agreements among the parties except as herein specifically set forth, and
none of the parties hereto shall rely on any statement by or on behalf of the
other parties which is not contained in this Agreement.
7. Governing Law.
Irrespective of the place of execution or performance of this
Agreement, it shall be governed by and construed in accordance with the laws of
the State of Delaware, United States of America applicable to contracts made and
to be performed in the United States, and cannot be changed, modified, amended
or terminated except in writing, signed by the parties hereto.
8. Benefit and Assignability.
This Agreement shall bind and inure to the benefit of the parties
hereto and their respective legal representatives, successors and assigns,
provided, however, that this Agreement cannot be assigned by any party except by
or with the written consent of the others. Nothing herein expressed or implied
is intended or shall be construed to confer upon or to give any person, firm or
corporation other than the parties hereto and their respective legal
representatives, successors and assigns any rights or benefits under or by
reason of this Agreement.
9. Approval of Counsel.
The form of all legal proceedings and of all papers and documents used
or delivered hereunder, shall be subject to the approval of counsels to Buyer
and Seller.
10. Costs.
The Company and/or Seller shall pay all legal and financial expenses
in connection with this transaction.
11. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same Agreement.
12. Notices.
Any notices and other communications under this Agreement shall be in
writing and shall be considered given if delivered personally or mailed by
certified mail to the party, for whom such notice is intended, at the address
indicated at the outset hereof (or at such other address as such party may
specify by notice to the other parties hereto).
13. Headings.
The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
14. Further Action.
Any further action required or permitted to be taken under this
Agreement, including giving notices, executing documents, waiving conditions,
and agreeing to amendments or modifications, may be taken on behalf of a party
by its Board of Directors, its President or any other person designated by its
Board of Directors, and when so taken shall be deemed the action of such party.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
Agreement the day and year first above written.
BUYER
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China Gateway Holding Limited
By: /s/ ▇▇▇▇▇ ▇▇
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▇▇▇▇▇ ▇▇, President
Witness:
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SELLER
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By: /s/ ▇. ▇▇▇▇▇
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▇. ▇▇▇▇▇
Witness:
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THE COMPANY
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Chemical Consortium, Inc.
By: /s/ ▇. ▇▇▇▇▇
-------------------------------
▇. ▇▇▇▇▇, President
Witness:
--------------------------
