STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), by and among HALTER CAPITAL CORPORATION, a Texas corporation
having an address at 0000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
("Seller"), on the one hand, and Fang Dehou an individual, Xxx Xxxxxxxx, an
individual, and Li Ming each having an office and address at c/o Loeb & Loeb,
LLP, attention Xxxxx Xxxxxxxx, 00000 Xxxxx Xxxxxx Xxxx., Xxx Xxxxxxx, XX 00000
("Purchaser"), on the other hand, and XXXXX EDUCATIONAL SYSTEMS, INC., a company
incorporated under the laws of Delaware, having an office and address at 0000
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Company").
W I T N E S S E T H
WHEREAS, Seller desires to sell to Purchaser 84,360 shares of the
Company's common stock, par value $0.001 per share (the "Common Stock"), (the
"Shares"), representing approximately 43.9% of the Company's issued and
outstanding shares of the Common Stock of the Company, on the terms and
condition set forth in this Stock Purchase Agreement ("Agreement") and allocated
as set forth on Schedule I, and
WHEREAS, Purchaser desires to buy the Shares on the terms and
conditions set forth herein, and
WHEREAS the Company joins in the execution of this Agreement for the
purpose of evidencing its consent to the consummation of the foregoing
transactions and for the purpose of making certain representations and
warranties to and covenants and agreements with the Purchaser.
NOW THEREFORE, in consideration of the promises and respective mutual
agreements herein contained, it is agreed by and between the parties hereto as
follows.
ARTICLE 1
SALE AND PURCHASE OF THE SHARES
-------------------------------
1.1 Sale of the Shares. Upon the execution of this Agreement, subject
to the terms and conditions herein set forth, on the basis of the
representations, warranties and agreements herein contained, Seller shall
deliver the Shares to Purchaser who shall purchase the Shares from the Seller.
1.2 The Closing. The Closing (the "Closing") shall occur concurrently
with and be conditioned on the closing of that certain Share Exchange Agreement
dated as of the date hereof among the Company, Purchaser and Seller.
1.3 Instruments of Conveyance and Transfer. At the Closing, Seller
shall each deliver a certificate or certificates representing the Shares to
Purchaser, in form and substance satisfactory to Purchaser ("Certificates"), as
shall be effective to vest in Purchaser all right, title and interest in and to
all of the Shares.
1.4 Consideration and Payment for the Shares . In consideration for the
Shares, Purchaser shall pay to the Seller the purchase price of Four Hundred
Forty-thousand ($440,000.00) Dollars in U.S. currency ("Purchase Price"). The
Purchase Price shall be payable only upon Closing (as set forth in Article 8
hereof).
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE SELLER
--------------------------------------------
The Sellers represents and warrants to the Purchaser the following:
2.1 Transfer of Title. Seller shall transfer title in and to the Shares
to the Purchaser free and clear of all liens, security interests, pledges,
encumbrances, charges, restrictions, demands and claims, of any kind or nature
whatsoever, whether direct or indirect or contingent.
(a) Due Execution This Agreement has been duly executed and
delivered by the Seller.
(b) Valid Agreement This Agreement constitutes, and upon execution
and delivery thereof by the Seller, will constitute, a valid
and binding agreement of the Seller enforceable against the
Seller in accordance with its respective terms.
(c) Authorization. The execution, delivery and performance by the
Seller of this Agreement and the delivery by the Seller of the
Shares have been duly and validly authorized and no further
consent or authorization of the Seller, the Company, its Board
of Directors, or its stockholders is required.
(d) Seller's Title to Shares; No Liens or Preemptive Rights; Valid
Issuance. Seller has and at the Closing will have full and
valid title and control of the Shares; there will be no
existing impediment or encumbrance to the sale and transfer of
such Shares to the Purchaser; and on delivery to the Purchaser
of the Shares, all of the Shares will be free and clear of all
taxes, liens, encumbrances, charges or assessments of any kind
and shall not be subject to preemptive rights, tag-along
rights, or similar rights of any of the stockholders of the
Company. Such Shares will be legally and validly issued in
material compliance with all applicable U.S. federal and state
securities laws, and will be fully paid and non-assessable
shares of the Company's common stock; and the Shares have all
been issued under duly authorized resolutions of the Board of
Directors of the Company. At the Closing, Seller shall deliver
to the Purchaser certificates representing the Shares subject
to no liens, security interests, pledges, encumbrances,
charges, restrictions, demands or claims in any other party
whatsoever with appropriate stock powers with medallion
guarantees
2.2 No Governmental Action Required. The execution and delivery by the
Seller of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
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of, or filing with, any governmental body, agency or governmental official,
including but not limited to the Securities and Exchange Commission
("Commission") and the National Association of Securities Dealers ("NASD"),
except such actions or filings that have been undertaken or made prior to the
date hereof and that will be in full force and effect (or as to which all
applicable waiting periods have expired) on and as of the date hereof or which
are not required to be filed on or prior to the date of Closing.
2.3 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Seller and the Company of this Agreement does not
and will not and, the sale by the Seller of the Shares does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, (ii) the articles of incorporation or by-laws of
the Seller, the Company or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon the Seller or any his or the Company's
assets, or result in the creation or imposition of any lien on any asset of the
Seller.
2.4 Due Diligence Materials. The information heretofore furnished by
the Seller to the Purchaser for purposes of or in connection with this Agreement
or any transaction contemplated hereby does not, and all such information
hereafter furnished by the Seller to the Purchaser will not (in each case taken
together and on the date as of which such information is furnished), contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they are made, not misleading.
2.5 Not a Voting Trust: No Proxies. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to the Shares. Except as
provided in this Agreement, the Seller is not a party to any agreement which
offers or grants to any person the right to purchase or acquire any of the
Shares. There is no applicable local, state or federal law, rule, regulation, or
decree which would, as a result of the sale contemplated by this Agreement,
impair, restrict or delay any voting rights with respect to the Shares.
2.6 Survival of Representations. The representations and warranties
herein by the Seller will be true and correct in all material respects on and as
of the Closing with the same force and effect as though said representations and
warranties had been made on and as of the Closing and will, except, provided
herein, survive the Closing.
2.7 Adoption of Company's Representations. The Seller adopts and
remakes as their own each and every representation made by the Company in
Article 4 below.
2.8 No Solicitation. No form of general solicitation or general
advertising was used by the Seller or, to the best of their actual knowledge,
any other person acting on behalf of the Seller, in connection with the offer
and sale of the Shares. Neither the Seller, nor, to their knowledge, any person
acting on behalf of the Seller, have, either directly or indirectly, sold or
offered for sale to any person (other than the Purchaser) any of the Shares, and
the Seller represents that he will not, nor will any person authorized to act on
his behalf (except that the Seller makes no representation as to the Purchaser)
sell or offer for sale any such security to, or solicit any offers to buy any
such security from, or otherwise approach or negotiate in respect thereof with,
any person or persons so as thereby to cause the issuance or sale of any of the
Shares to be in violation of any of the provisions of Section 5 of the
Securities Exchange Act of 1934 or any other provision of law.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Purchaser the following:
3.1 Due Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
(a) with full power and authority to own, lease, use, and operate its properties
and to carry on its business as and where now owned, leased, used, operated and
conducted. The Company has no subsidiaries. The Company is duly qualified to
conduct business as a foreign corporation and is in good standing in every
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary, and (b) all actions taken by the current directors and
stockholders of the Company have been valid and in accordance with the laws of
the State of Delaware.
3.2 (a) Company Authority. The Company has all requisite corporate
power and authority to enter into and perform this Agreement.
(b) Due Authorization. The execution, delivery and performance by
the Company of this Agreement has been duly and validly
authorized and no further consent or authorization of the
Company, its Board of Directors or its stockholders is
required.
(c) Valid Execution. This Agreement has been duly executed and
delivered by the Company.
(d) Binding Agreement. This Agreement constitutes, and upon
execution and delivery thereof by the Company, will
constitute, a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(e) No Violation of Corporate Documents or Agreements. The
execution and delivery of this Agreement by the Company and
the performance by the Company of its obligations hereunder
will not cause, constitute, or conflict with or result in (i)
any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage,
charter, instrument, articles of incorporation, bylaw, or
other agreement or instrument to which the Company or its
stockholders are a party, or by which they may be bound, nor
will any consents or authorizations of any party other than
those hereto by required, (ii) an event that would cause the
Company to be liable to any party, or (iii) an event that
would result in the creation or imposition or any lien, charge
or encumbrance on any asset of the Company or on the
securities of the Company to be acquired by the Purchaser.
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3.3 Authorized Capital, No Preemptive Rights, No Liens; Anti-Dilution.
As of the date hereof, the authorized capital of the Company is 100,000,000
shares of Common Stock, and 10,000,000 shares of preferred stock with a par
value of $0.001. The issued and outstanding capital stock of the Company is
192,063 shares of Common Stock. All of the shares of capital stock are, duly
authorized, validly issued, fully paid and non-assessable. No shares of capital
stock of the Company are subject to preemptive rights or similar rights of the
stockholders of the Company or any liens or encumbrances imposed through the
actions or failure to act of the Company, or otherwise. As of the date hereof
and at Closing, (i) there are no outstanding options, warrants, convertible
securities, scrip, rights to subscribe for, puts, calls, rights of first
refusal, tag-along agreements, nor any other agreements, understandings, claims
or other commitments or rights of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for any shares of capital
stock of the Company, or arrangements by which the Company is or may become
bound to issue additional shares of capital stock of the Company, and (ii) there
are no agreements or arrangements under which the Company is obligated to
register the sale of any of its securities under the Securities Act and (iii)
there are no anti-dilution or price adjustment provisions contained in any
security issued by the Company (or in the Company's articles of incorporation or
by-laws or in any agreement providing rights to security holders) that will be
triggered by the transactions contemplated by this Agreement. The Company has
furnished to Purchaser true and correct copies of the Company's articles of
incorporation and by-laws.
3.4 No Governmental Action Required. The execution and delivery by the
Company of this Agreement does not and will not, and the consummation of the
transactions contemplated hereby will not, require any action by or in respect
of, or filing with, any governmental body, agency or governmental official,
including but not limited to, the Commission and the NASD, except such actions
or filings that have been undertaken or made prior to the date hereof and that
will be in full force and effect (or as to which all applicable waiting periods
have expired) on and as of the date hereof or which are not required to be filed
on or prior to the Closing.
3.5 Compliance with Applicable Law and Corporate Documents. The
execution and delivery by the Company of this Agreement does not and will not
contravene or constitute a default under or violation of (i) any provision of
applicable law or regulation, (ii) the Company's articles of incorporation or
bylaws, or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any its assets, or result in the creation
or imposition of any lien on any asset of the Company. The Company is in
compliance with and conforms to all statutes, laws, ordinances, rules,
regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
3.6 SEC Representations. Through the date hereof, the Company has filed
all forms, reports and documents with the Commission required to be filed by it
("SEC Reports"). The Company has delivered and/or made available to Purchaser
true and complete copies of the required SEC Reports. Such SEC Reports, at the
time filed, complied in all material respects with the requirements of the
federal and state securities laws and the rules and regulations of the
Commission thereunder applicable to such SEC Reports. None of the SEC Reports,
including without limitation, any financial statements or schedules included
therein, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
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3.7 Financial Statements. (a) The Purchaser has received a copy of the
audited financial statements of the Company for the fiscal year ended March 31,
2002 ("Audited Financial Statements"), and the related statements of income and
retained earnings for the period then ended. The Audited Financial Statements
have been prepared in accordance with generally accepted accounting principles
consistently followed by the Company throughout the periods indicated. Such
financial statements fairly present the financial condition of the Company at
the dates indicated and its results of their operations and cash flows for the
periods then ended and, except as indicated therein, reflect all claims against,
debts and liabilities of the Company, fixed or contingent, and of whatever
nature. Since March 31, 2002 (the "Balance Sheet Date"), there has been no
material adverse change in the assets or liabilities, or in the business or
condition, financial or otherwise, or in the results of operations or prospects,
of the Company, whether as a result of any legislative or regulatory change,
revocation of any license or rights to do business, fire, explosion, accident,
casualty, labor trouble, flood, drought, riot, storm, condemnation, act of God,
public force or otherwise and no material adverse change in the assets or
liabilities, or in the business or condition, financial or otherwise, or in the
results of operation or prospects, of the Company except in the ordinary course
of business.
3.8 No Litigation. The Company is not a party to any suit, action,
arbitration, or legal, administrative, or other proceeding, or pending
governmental investigation. The Company is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality.
3.9 No Taxes. To the best of the Company's knowledge, it is not liable
for any income, sales, withholding, real or personal property taxes to any
governmental agencies whatsoever. All United States federal, state, county,
municipality local or foreign income tax returns and all other material tax
returns (including foreign tax returns) which are required to be filed by or on
behalf of the Company have been or will be filed as of the Closing Date and all
material taxes due pursuant to such returns or pursuant to any assessment
received by the Company have been or will be paid as of the Closing Date, except
those being disputed in good faith and for which adequate reserves have been
established. The charges, accruals and reserves on the books of the Company in
respect of taxes or other governmental charges have been established in
accordance with GAAP.
3.10 Material Agreements (a) The Company is not currently carrying on
any business and is not a party to any contract, agreement, lease or order which
would subject it to any performance or business obligations or restrictions in
the future after the closing of the transactions contemplated by this Agreement.
(b) The Company has no employment contracts or agreements with any
of its officers, directors, or with any consultants, employees
or other such parties.
(c) The Company has no stockholder contracts or agreements.
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(d) The Company is not in default under any contract or any other
document.
(e) The Company has no written or oral contracts with any third
party except with its transfer agent, Securities Transfer
Corporation.
(f) The Company has no outstanding powers of attorney and no
obligations concerning the performance of the Seller
concerning this Agreement.
(g) The Company has all material Permits ("Permits" means all
licenses, franchises, grants, authorizations, permits,
easements, variances, exemptions, consents, certificates,
orders and approvals necessary to own, lease and operate the
properties, of, and to carry on the business of the Company);
(ii) all such Permits are in full force and effect, and the
Company has fulfilled and performed all material obligations
with respect to such Permits; (iii) no event has occurred
which allows, or after notice or lapse of time would allow,
revocation or termination by the issuer thereof or which
results in any other material impairment of the rights of the
holder of any such Permit, and (iv) the Company has no reason
to believe that any governmental body or agency is considering
limiting, suspending or revoking any such Permit.
(h) Neither the Company nor, to the Company's knowledge, any
employee or agent of the Company has made any payments of
funds of the Company, or received or retained any funds, in
each case in violation of any law, rule or regulation or of a
character required to be disclosed by the Company in any of
the SEC Reports.
(i) There are no outstanding judgments or UCC financing
instruments or UCC Securities Interests filed against the
Company or any of its properties.
(j) The Company has no debt, loan, or obligations of any kind, to
any of its directors, officers, stockholders, or employees,
which will not be satisfied at the Closing.
(k) The Company does not have and will not have any assets at the
time of Closing other than cash, as disclosed in the Audited
Financial Statements. The Company does not own any real estate
or any interests in real estate. The Company does not own any
patents, copyrights, or trademarks. The Company does not
license the intellectual property of others nor owe fees or
royalties on the same.
3.11 No Liabilities. To the best of its knowledge, there are no
liabilities of the Company of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, and there is no existing
condition, situation or set of circumstances which could reasonably be expected
to result in such a liability. The Company does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due, that is not reflected on the Company's
financial statements.
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3.12 OTC Listing. The Company is currently listed on the OTC Electronic
Bulletin Board under the trading symbol "LCES". The Company is not in default
with respect to any listing requirements of the NASD.
3.13 Compliance with Law. To the best of its knowledge, the Company has
complied with, and is not in violation of any provision of laws or regulations
of federal, state or local government authorities and agencies. There are no
pending or threatened proceedings against the Company by any federal, state or
local government, or any department, board, agency or other body thereof.
3.14 Corporate Documents Effective. The articles of incorporation, as
amended, and the bylaws of the Company, as provided to Purchaser are, or will at
Closing be, in full force and effect and all actions of the Board of Directors
or stockholders required to accomplish same have, or will at Closing have been,
taken.
3.15 No Stockholder Approval Required. The acquisition of the Shares by
Purchaser from Seller does not require the approval of the stockholders of the
Company under the Delaware General Corporate Law ("DGCL"), the Company's
articles of incorporation or bylaws, or any other requirement of law or, if
stockholder approval is required it has or will, prior to the Closing, be
properly obtained in accordance with the requirements of the Company's articles
of incorporation and by-laws and the DGCL.
3.16 No Dissenters' Rights. The acquisition of the Shares by Purchaser
from Seller will not will not give rise to any dissenting stockholders' rights
under the DGCL, the Company's articles of incorporation or bylaws, or otherwise.
3.17 Not Subject to Voting Trust. None of the Shares are or will be
subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such Shares. The Company
is not a party to any agreement which offers or grants to any person the right
to purchase or acquire any of the securities to be issued pursuant to this
Agreement. There is no applicable local, state or federal law, rule, regulation,
or decree which would, as a result of the transfer of the Shares to Purchaser,
impair, restrict or delay any voting rights with respect to the Shares.
3.18 Prior Offerings. All issuances by the Company of shares of common
stock in past transactions have been legally and validly effected, and all of
such shares of common stock are fully paid and non-assessable. All of the
offerings of the Company's common stock were conducted in strict accordance with
the requirements of Regulation D, Rules 504 and 506, as applicable, in full
compliance with the requirements of the Securities Exchange Acts of 1933 and
1934, as applicable, and in full compliance with and according to the
requirements of the DGCL and the Company's articles of incorporation and bylaws.
3.19 True Representations. The information heretofore furnished by the
Company to the Purchaser for purposes of or in connection with this Agreement or
any transaction contemplated hereby does not, and all such information hereafter
furnished by the Company to the Purchaser will not (in each case taken together
and on the date as of which such information is furnished), contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements contained therein, in the light of the circumstances
under which they are made, not misleading.
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3.20 Survival. The representations and warranties herein by the Company
will be true and correct in all material respects on and as of the Closing with
the same force and effect as though said representations and warranties had been
made on and as of the Closing Time and will, except, as otherwise provided
herein, survive the Closing for a period of two (2) years.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Unless specifically stated otherwise, Purchaser represents and warrants
that the following are true and correct as of the date hereof and will be true
and correct through the Closing Date as if made on that date:
4.1 Agreement's Validity. This Agreement has been duly executed and
delivered by Purchaser and constitutes legal, valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with its respective
terms, except as may be limited by applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally or the availability of equitable
remedies.
4.2 Investment Intent. Purchaser is acquiring the Shares for its own
account for investment and not with a view to, or for sale or other disposition
in connection with, any distribution of all or any part thereof, except (i) in
an offering covered by a registration statement filed with the Securities and
Exchange Commission under the Securities Act covering the Shares, or (ii)
pursuant to an applicable exemption under the Securities Act.
4.3 Restricted Securities. Purchaser understands that the Shares have
not been registered pursuant to the Securities Act or any applicable state
securities laws, that the Shares will be characterized as "restricted
securities" under federal securities laws, and that under such laws and
applicable regulations the Shares cannot be sold or otherwise disposed of
without registration under the Securities Act or an exemption therefrom. In this
connection, Purchaser represents that it is familiar with Rule 144 promulgated
under the Securities Act, as currently in effect, and understands the resale
limitations imposed thereby and by the Securities Act. Stop transfer
instructions may be issued to the transfer agent for securities of the Company
(or a notation may be made in the appropriate records of the Company) in
connection with the Shares.
4.4 Legend. It is agreed and understood by Purchaser that the
certificates representing the Shares shall each conspicuously set forth on the
face or back thereof a legend in substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
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4.5 Disclosure of Information. Purchaser acknowledges that it has been
furnished with information regarding the Company and its business, assets,
results of operations, and financial condition to allow Purchaser to make an
informed decision regarding an investment in the Shares. Purchaser represents
that it has had an opportunity to ask questions of and receive answers from the
Company regarding the Company and its business, assets, results of operation,
and financial condition.
ARTICLE 5
INDEMNIFICATION
---------------
5.1 Seller hereby agrees to, indemnify and hold harmless the Purchaser
and the Company (which includes, for purposes of this Article, Purchaser's and
the Company's officers and directors, and stockholders) against any Losses,
joint or several, to which Purchaser may become subject under the Exchange Act,
any state or federal law, statutory or common law, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise by reason of the inaccuracy
of any warranty or representation contained in this Agreement, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and Seller
will in addition reimburse Purchaser and the Company for any legal or any other
expenses reasonably incurred by Purchaser in connection with investigating or
defending any such loss, claim, liability, action or proceeding. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of Purchaser and shall survive the Closing for a period of one (1)
year. As used herein, "Losses" means any loss, claim, demand, damage, award,
liabilities, suits, penalties, forfeitures, cost or expense (including, without
limitation, reasonable attorneys', consultant and other professional fees and
disbursements of every kind, nature and description).
ARTICLE 6
COVENANTS
---------
6.1 From the date of this Agreement to Closing, the Seller and the
Company covenant as follows.
(a) Seller will to the best of their ability preserve intact the
current status of the Company and the trading capacity of the
Company as a NASD Bulletin Board company.
(b) The Seller will furnish Purchaser with whatever corporate
records and documents are available, such as articles of
incorporation and bylaws.
(c) The Company will not enter into any contract, written or oral,
or business transaction, merger or business combination, or
incur any debts, loan, or obligations without the express
written consent of Purchaser or enter into any agreements with
its officers, directors, or stockholders.
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(d) The Company will not amend or change its articles of
incorporation or Bylaws, or issue any further shares in the
common stock of the Company without the express written
consent of Purchaser.
(e) The Company will not issue any stock options, warrants or
other rights or interest in the Shares or to its shares of
common stock.
(f) The Seller will not encumber or mortgage any right or interest
in the Shares, and will not transfer any rights to the Shares
to any third party whatsoever.
(g) The Company will not declare any dividend in cash or stock, or
any other benefit to its stockholders.
(h) The Company will not institute any bonus, benefit, profit
sharing, stock option, pension retirement plan or similar
arrangement.
(i) The Seller will obtain and submit to the Purchaser resignation
of current officers and directors.
(j) The Company will arrange for the Company's current bank
account to be closed and the delivery of all bank account
statements and records pertaining to this account.
ARTICLE 7
CLOSING AND DELIVERY OF DOCUMENTS
---------------------------------
7.1 Closing. The Closing shall be held as soon as practical after the
date hereof (the "Closing Date") but no later than October 31,2002 pursuant to
an escrow through Loeb & Loeb. The Closing shall occur as a single integrated
transaction, as follows.
(a) Delivery by Seller
------------------
(i) Seller shall deliver to Loeb & Loeb LLP such
instruments, documents and certificates as are
required to be delivered by Seller or its
representatives pursuant to the provisions of this
Agreement.
(ii) Seller shall deliver the Certificates to Loeb & Loeb
LLP as directed by Purchaser.
(b) Delivery by Purchaser
---------------------
(i) The Purchaser shall pay to the Seller $440,000.00 by
wire transfer as instructed by Seller subject to
offset for any finder's fees.
(ii) A certificate executed by Purchaser dated the Closing
Date, certifying that the representations and
warranties of Purchaser contained in this Agreement
are then true in all respects.
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ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
8.1 Waiver. Any term, provision, covenant, representation, warranty or
condition of this Agreement may be waived, but only by a written instrument
signed by the party entitled to the benefits thereof. The failure or delay of
any party at any time or times to require performance of any provision hereof or
to exercise its rights with respect to any provision hereof shall in no manner
operate as a waiver of or affect such party's right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
provision, covenant, representation or warranty contained in this Agreement, in
any one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or waiver of any other
condition of the breach of any other term, provision, covenant, representation
or warranty. No modification or amendment of this Agreement shall be valid and
binding unless it be in writing and signed by all parties hereto.
8.2 Termination by Purchaser. Notwithstanding anything to the contrary
herein, Purchaser shall have the right, in its sole and absolute discretion, at
any time prior to its payment of the Purchase Price, to terminate this
Agreement, in which event, this Agreement shall be terminated and no party shall
have any further obligation to any other party.
ARTICLE 9
MISCELLANEOUS
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9.1 Entire Agreement. This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understanding related to the subject matter hereof. No understanding, promise,
inducement, statement of intention, representation, warranty, covenant or
condition, written or oral, express or implied, whether by statute or otherwise,
has been made by any party hereto which is not embodied in this Agreement or the
written statement, certificates, or other documents delivered pursuant hereto or
in connection with the transactions contemplated hereby, and no party hereto
shall be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant or condition not set forth.
9.2 Notices. Any notice or communications hereunder must be in writing
and given by depositing same in the United States mail addressed to the party to
be notified, postage prepaid and registered or certified mail with return
receipt requested or by delivering same in person. Such notices shall be deemed
to have been received on the date on which it is hand delivered or on the third
business day following the date on which it is to be mailed. For purpose of
giving notice, the addresses of the parties shall be:
If to Seller:
-------------
Halter Capital Corporation
0000 Xxxxxx Xxxxxxx, #000
Xxxxxx, XX 00000
Fax: 000-000-0000
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If to Purchaser to:
-------------------
Xxxxx Xxxxxxxx
Xxxx & Xxxx, LLP
00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Fax 000-000-0000
If to Company to:
-----------------
Xxxxx Educational Systems, Inc.
0000 Xxxxxx Xxxxxxx, #000
Xxxxxx, XX 00000
Fax: 000-000-0000
9.3 Governing Law. This Agreement shall be governed in all respects,
including validity, construction, interpretation and effect, by the laws of the
State of Texas (without regard to principles of conflicts of law). The parties
agree that any service of process to be made hereunder may be made by certified
mail, return receipt requested, addressed to the party at the address appearing
in Section 10.2, together with a copy to be delivered to such party's attorneys
via telecopier (if provided in Section 10.2). Such service shall be deemed to be
completed when mailed and sent and received by telecopier. Seller and Purchaser
each waives any objection based on forum non-conveniens. Nothing in this
paragraph shall affect the right of Seller or Purchaser to serve legal process
in any other manner permitted by law.
9.4 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.5 Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed, or
extended, and the terms hereof may be waived, only by a written instrument
signed by authorized representatives of the parties or, in the case of a waiver,
by an authorized representative of the party waiving compliance. No such written
instrument shall be effective unless it expressly recites that it is intended to
amend, supersede, cancel, renew or extend this Agreement or to waive compliance
with one or more of the terms hereof, as the case may be. No delay on the part
of any party in exercising any right, power or privilege shall hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any such right, power or privilege, or any single or partial exercise of any
such right, power of privilege, preclude any further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity. The rights and remedies of any
party based upon, arising out of or otherwise in respect of any inaccuracy in or
breach of any representation, warranty, covenant or agreement contained in this
Agreement shall in no way be limited by the fact that the act, omission,
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occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject of any other representation,
warranty, covenant or agreement contained in this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or breach.
9.6 Binding Effect; No Assignment, No Third-Party Rights. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto or by
operation of law.
9.7 Further Assurances. Each party shall, at the request of the other
party, at any time and from time to time following the Closing promptly execute
and deliver, or cause to be executed and delivered, to such requesting party all
such further instruments and take all such further action as may be reasonably
necessary or appropriate to carry out the provisions and intents of this
Agreement and of the instruments delivered pursuant to this Agreement.
9.8 Severability of Provisions. If any provision or any portion of any
provision of this Agreement or the application of any such provision or any
portion thereof to any person or circumstance, shall be held invalid or
unenforceable, the remaining portion of such provision and the remaining
provisions of the Agreement, or the application of such provision or portion of
such provision is held invalid or unenforceable to person or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and such provision or portion of any provision as shall have
been held invalid or unenforceable shall be deemed limited or modified to the
extent necessary to make it valid and enforceable, in no event shall this
Agreement be rendered void or unenforceable.
9.9 Exhibits and Schedules. All exhibits annexed hereto, and all
schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein. Any matter disclosed on any schedule referred
to herein shall be deemed also to have been disclosed on any other applicable
schedule referred to herein.
9.10 Captions. All section titles or captions contained in this
Agreement or in any schedule or exhibit annexed hereto or referred to herein,
and the table of contents to this Agreement, are for convenience only, shall not
be deemed a part of this Agreement and shall not affect the meaning or
interpretation of this Agreement. All references herein to sections shall be
deemed references to such parts of this Agreement, unless the context shall
otherwise require.
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9.11 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the Closing occurs, each party hereto shall pay its
own expenses incidental to the preparation of this Agreement, the carrying out
of the provisions hereof and the consummation of the transactions contemplated.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the date first written herein above.
HALTER CAPITAL CORPORATION
By:
------------------------
---------------------------
Li Ming
---------------------------
Fang Dehou
---------------------------
Liu Xxxxxxxx
XXXXX EDUCATIONAL SYSTEMS
By:
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