STOCK PURCHASE AGREEMENT
by and among
SUNWIN TECH GROUP, INC.
as Acquiror
Qufu Natural Green Engineering Company, Limited
as Acquiree
and
SHANDONG SHENGWANG PHARMACEUTICAL GROUP CORPORATION
90% shareholder of
Qufu Natural Green Engineering Company, Limited
January 26, 2004
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into this
31st day of January 2004 by and among SUNWIN TECH GROUP, INC., an Florida
corporation (hereinafter referred to as "SUNWIN"), Qufu Natural Green
Engineering Company, Limited, a Chinese limited liability company (hereinafter
referred to as the "Qufu" or "Company"), and Shandong Shengwang Pharmaceutical
Corporation that owns 90% ownership of the Company (hereinafter referred to as
the "Shareholder").
RECITALS:
A. The Shareholder owns 90% of the capital stock of the Company.
B. SUNWIN is willing to acquire 80% of the issued and outstanding capital stock
of the Company, making the Company a 80% owned subsidiary of SUNWIN, and the
Shareholder desires to exchange 80% of his shares of the Company's capital stock
for shares of SUNWIN authorized but unissued shares of Common Stock as
hereinafter provided.
C. The Company and its subsidiaries are doing business in China and related
territories with an address of Xx. 0 Xxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxx, Xxxxx D.
It is the intention of the parties hereto that: (i) SUNWIN shall acquire 80% of
the issued and outstanding capital stock of the Company in exchange solely
32,500,000 restricted shares of SUNWIN authorized but unissued Common Stock set
forth below (the "Exchange"); and (ii) the Exchange shall qualify as a
transaction in securities exempt from registration or qualification under the
Securities Act of 1933, as amended, (the "Act") and under the applicable
securities laws of the state or jurisdiction where the Shareholders reside. NOW,
THEREFORE, in consideration of the mutual covenants, agreements, representations
and warrants contained in this Agreement, the parties hereto agree as follows:
SECTION 1. EXCHANGE OF SHARES
1.1 Exchange of Shares. SUNWIN and the Shareholder hereby agree that the
Shareholder shall, on the Closing Date on January 31, 2004, exchange 80% of his
issued and outstanding shares of the capital stock of the Company (the "Shares")
for 32,500,000 newly issued shares of SUNWIN Common Stock, $.001 par value (the
"SUNWIN Shares").
1.2 Delivery of Qufu Shares. On the Closing Date, the
Shareholder will deliver to Sunwin the certificates representing the Qufu's
Shares, duly endorsed (or with executed stock powers) so as to make Sunwin the
80% owner thereof. Sunwin shall deliver to the Shareholder the Sunwin Shares to
be delivered to the Shareholder or as the shareholder directs so as to make the
Shareholder or his nominee the sole owner thereof.
1.3 Investment Intent. 8
million newly issued shares of Sunwin common stock have not been registered
under the Securities Act of 1933, as Amended, and may not be resold unless the
Sunwin Shares are registered under the Act or an exemption from such
registration is available. The Shareholder represents and warrants that he is
acquiring the Sunwin Shares for his own account, for investment, and not with a
view to the sale or distribution of such Shares. Each certificate representing
the Sunwin Shares will have a legend thereon incorporating language as follows:
"The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the "Act"). The shares have been acquired
for investment and may not be sold or transferred in the absence of an effective
Registration Statement for the shares under the Act unless in the opinion of
counsel satisfactory to the Company, registration is not required under the
Act."
1.4. Conditions Precedent. Completion of the Exchange shall be conditional
upon (a) the Shareholder completing a review of the financial, trading and legal
position of Sunwin in respect of Sunwin; (b) Sunwin has obtained all the
necessary consent, authorization and approval from the relevant regulatory
authorities, its board of directors and/or its shareholders; (c) receipt by the
Shareholder of a legal opinion that the Exchange qualifies as a tax-free
reorganization under Section 368(a)(1)(B) of the Internal Revenue Code of 1986,
as amended.
SECTION 2. REPRESENTATIONS AND WQUFUTIES OF THE COMPANY AND THE
SHAREHOLDER
The Company and the Shareholder hereby represent and warrant as
follows:
2.1 Organization and Good Standing; Ownership of Shares. The Company
and its subsidiaries are corporations duly organized, validly existing and in
good standing under the laws of China, and is entitled to own or lease its
properties and to carry on its business as and in the places where such
properties are now owned, leased or operated and such business is now conducted.
The Company is duly licensed or qualified and in good standing as a foreign
corporation where the character of the properties owned by it or the nature of
the business transacted by it make such licenses or qualifications necessary.
There are no outstanding subscriptions, rights, options, warrants or other
agreements obligating either the Company or the Shareholder to issue, sell or
transfer any stock or other securities of the Company.
2.2 Ownership of Capital
Stock. The Shareholder is the beneficial owner of record and beneficially of all
of the shares of capital stock of the Company, all of which shares are free and
clear of all rights, claims, liens and encumbrances, and have not been sold,
pledged, assigned or otherwise transferred except pursuant to this Agreement.
2.3 Financial Statements, Books and Records. There has been previously delivered
to Sunwin the unaudited income statement and balance sheet of the Company as at
December 31, 2002 and December 31, 2003 (the "Balance Sheet"). The Balance Sheet
is true and accurate and fairly represents the financial position of the Company
as at such date, and has been prepared in accordance with generally accepted
accounting principles consistently applied.
2.4 No Material Adverse Changess Since the date of the Balance Sheet there has
not been: (i) any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of the Company; (ii) any
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of the Company,
whether or not covered by insurance; (iii) any declaration, setting aside or
payment of any dividend or distribution with respect to any redemption or
repurchase of the Company's capital stock; (iv) any sale of an asset (other than
in the ordinary course of business) or any mortgage or pledge by the Company of
any properties or assets; or (v) adoption of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or arrangement.
2.5 Taxes. The Company has prepared and filed all appropriate tax returns for
all periods prior to and through the date hereof for which any such returns have
been required to be filed by it and has paid all taxes shown to be due by said
returns or on any assessments received by it or has made adequate provision for
the payment thereof.
2.6 Compliance with Laws.The Company has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of the
Company.
2.7 No Breach. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not: (i) violate any
provision of the Articles of Incorporation or By-Laws of the Company; (ii)
violate, conflict with or result in the breach of any of the terms of, result in
a material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which the Company is a party
or by or to which it or any of its assets or properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, the
Company, or upon the properties or business of the Company; or (iv) violate any
statute, law or regulation of any jurisdiction applicable to the transactions
contemplated herein which could have a materially adverse effect on the business
or operations of the Company.
2.8 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Company.
2.9 Brokers or Finders. No broker's or finder's fee will be payable by
the Company in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by the Company or
the Shareholders.
2.10 Real Estate. The Company neither owns real property nor
is a party to any leasehold agreement.
2.11 Tangible Assets. The Company has
full title and interest in all machinery, equipment, furniture, leasehold
improvements, fixtures, vehicles, structures, owned or leased by the Company,
any related capitalized items or other tangible property material to the
business of the Company (the "Tangible Assets"). The Company holds all rights,
title and interest in all the Tangible Assets owned by it on the Balance Sheet
or acquired by it after the date of the Balance Sheet, free and clear of all
liens, pledges, mortgages, security interests, conditional sales contracts or
any other encumbrances. All of the Tangible Assets are in good operating
condition and repair taking into account the age of the tangible assets and
subject to fair wear and tear, and are usable in the ordinary course of business
of the Company and conform to all applicable laws, ordinances and governmental
orders, rules and regulations relating to their construction and operation.
2.12 Liabilities. The Company does not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including, without limitation, any
liability on account of taxes, any other governmental charge or lawsuit (all of
the foregoing collectively defined to as "Liabilities"), which were not fully,
fairly and adequately reflected on the Balance Sheet. As of the Closing Date,
the Company will not have any Liabilities, other than Liabilities fully and
adequately reflected on the Balance Sheet, except for Liabilities incurred in
the ordinary course of business.
2.13 Operations of the Company. From the date of the Balance Sheet on December
31, 2003 and through the Closing Date on January 31, 2004 hereof the Company has
not and will not have: (i) incurred any indebtedness for borrowed money; (ii)
declared or paid any dividend or declared or made any distribution of any kind
to any shareholder, or made any direct or indirect redemption, retirement,
purchase or other acquisition of any shares in its capital stock; (iii) made any
loan or advance to any shareholder, officer, director, employee, consultant,
agent or other representative or made any other loan or advance otherwise than
in the ordinary course of business; (iv) except in the ordinary course of
business, incurred or assumed any indebtedness or liability (whether or not
currently due and payable); (v) disposed of any assets of the Company except in
the ordinary course of business; or (vi) materially increased the annual rate of
compensation of any executive employee of the Company; (vii) increased,
terminated, amended or otherwise modified any plan for the benefit of employees
of the Company; (viii) issued any equity securities or rights to acquire such
equity securities; or (ix) except in the ordinary course of business, entered
into or modified any contract, agreement or transaction.
2.14 Capitalization. The company has registered $2.5 million in capital. Neither
the Company nor the Shareholder has granted, issued or agreed to grant, issue or
make available any warrants, options, subscription rights or any other
commitments of any character relating to the issued or unissued shares of
capital stock of the Company except the Exchange pursuant to this Agreement.
2.15 Full Disclosure. No representation or warranty by the Company or the
Shareholder in this Agreement or in any document or schedule to be delivered by
them pursuant hereto, and no written statement, certificate or instrument
furnished or to be furnished to Sunwin pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any fact necessary to make any statement herein or therein not materially
misleading or necessary to a complete and correct presentation of all material
aspects of the businesses of the Company.
2.16 Representations and Warrants on Closing Date. The representations and
warrants contained in this Section 2 shall be true and complete on the Closing
Date on September 30, 2003 with the same force and effect as though such
representations and warrants had been made on and as of the Closing Date.
SECTION 3. REPRESENTATIONS AND WQUFUTIES OF Sunwin
Sunwin hereby represents and warrants to the Company and the Shareholders as
follows:
3.1 Organization and Good Standing. Sunwin is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida and
is entitled to own or lease its properties and to carry on its business as and
in the places where such properties are now owned, leased, or operated and such
business is now conducted. The authorized capital stock of Sunwin consists of
500,000,000 shares of Common Stock, of which 0 shares are presently issued and
outstanding and 20,000,000 shares of preferred stock, of which none is issued
and outstanding. Sunwin is duly licensed or qualified and in good standing as a
foreign corporation where the character of the properties owned by Sunwin or the
nature of the business transacted by it make such license or qualification
necessary. Sunwin does not have any subsidiaries.
3.2 The Sunwin Shares. The Sunwin Shares to be issued to the Shareholders have
been or will have been duly authorized by all necessary corporate and
stockholder actions and, when so issued in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable.
3.3 Financial Statements; Books and Records. There has been previously delivered
to the Company, the unaudited balance sheet of Sunwin as at January 31, 2004
(the "Sunwin Balance Sheets") and the related statements of operations for the
periods then ended (the "Financial Statements"). The Financial Statements are
true and accurate and fairly represent the financial position of the Company as
at such dates and the results of its operations for the periods then ended, and
have been prepared in accordance with generally accepted accounting principles
consistently applied.
3.4 No Material Adverse Changes. Since the date of the Sunwin Balance Sheet on
January 31, 2004, there has not been: (i) any material adverse change in the
assets, operations, condition (financial or otherwise) or prospective business
of Sunwin; (ii) any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of
Sunwin, whether or not covered by insurance; (iii) any declaration, setting
aside or payment of any dividend or distribution with respect to any redemption
or repurchase of Sunwin's capital stock; (iv) any sale of an asset (other than
in the ordinary course of business) or any mortgage or pledge by Sunwin of any
properties or assets; or (v) adoption of any pension, profit sharing,
retirement, stock bonus, stock option or similar plan or arrangement.
3.5 Taxes. Sunwin has prepared and filed all appropriate federal, state and
local tax returns of every kind and category (including, without limitation,
income taxes, estimated taxes, excise taxes, sales taxes, inventory taxes, use
taxes, gross receipt taxes, franchise taxes and property taxes) for all periods
prior to and through the date hereof for which any such returns have been
required to be filed by it or the failure to make such filings and resulting
liability would not be material relative to the results of operations of Sunwin.
Sunwin has paid all taxes shown to be due by the said returns or on any
assessments received by it or has made adequate provision for the payment
thereof.
3.6 Compliance with Laws. Sunwin has complied with all federal, state, county
and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to their businesses, including Federal
and State securities laws, which, if not complied with, would materially and
adversely affect the business of Sunwin or the trading market for the shares of
Sunwin Common Stock.
3.7 No Breach. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not: (i) violate any
provision of the Articles of Incorporation or By-Laws of Sunwin; (ii) violate,
conflict with or result in the breach of any of the terms of, result in a
material modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both constitute)
a default under, any contract or other agreement to which Sunwin is a party or
by or to which it or any of its assets or properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, Sunwin
or upon the properties or business of Sunwin; or (iv) violate any statute, law
or regulation of any jurisdiction applicable to the transactions contemplated
herein which could have a material adverse effect on the business or operations
of Sunwin.
3.8 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving Sunwin.
3.9 Brokers or Finders. No broker's or finder's fee will be payable by Sunwin in
connection with the transactions contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions by Sunwin.
3.10 Assets The Company has full title and interest in all machinery, equipment,
furniture, leasehold improvements, fixtures, vehicles, structures, owned or
leased by the Company, any related capitalized items or other tangible property
material to the business of the Company (the "Tangible Assets"). The Company
holds all rights, title and interest in all the Tangible Assets owned by it on
the Balance Sheet or acquired by it after the date of the Balance Sheet, free
and clear of all liens, pledges, mortgages, security interests, conditional
sales contracts or any other encumbrances. All of the Tangible Assets are in
good operating condition and repair taking into account the age of the tangible
assets and subject to fair wear and tear, and are usable in the ordinary course
of business of the Company and conform to all applicable laws, ordinances and
governmental orders, rules and regulations relating to their construction and
operation.
3.11 Liabilities. Sunwin does not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including, without limitation, any
liability on account of taxes, any other governmental charge or lawsuit (all of
the foregoing collectively defined to as "Liabilities"), which were not fully,
fairly and adequately reflected on the Balance Sheet. As of the Closing Date,
Sunwin will not have any Liabilities, other than Liabilities fully and
adequately reflected on the Sunwin Balance Sheet or Sunwin balance sheet dated
January 1, 2004, except for Liabilities incurred in the ordinary course of
business.
3.12 Operations of Sunwin. Except as set forth on Schedule 3.11 or in Sunwin
reports or filings made under the Securities Exchange Act of 1934, since the
date of the Sunwin Balance Sheet and through the Closing Date hereof, Sunwin has
not and will not have: (i) incurred any indebtedness for borrowed money; (ii)
declared or paid any dividend or declared or made any distribution of any kind
to any shareholder, or made any direct or indirect redemption, retirement,
purchase or other acquisition of any shares in its capital stock; (iii) made any
loan or advance to any shareholder, officer, director, employee, consultant,
agent or other representative or made any other loan or advance otherwise than
in the ordinary course of business; (iv) except in the ordinary course of
business, incurred or assumed any indebtedness or liability (whether or not
currently due and payable); (v) disposed of any assets of Sunwin except in the
ordinary course of business; or (vi) materially increased the annual level of
compensation of any executive employee of SUNWIN; (vii) increased, terminated
amended or otherwise modified any plan for the benefit of employees of Sunwin;
(viii) issued any equity securities or rights to acquire such equity securities;
or (ix) except in the ordinary course of business, entered into or modified any
contract, agreement or transaction.
3.13 Authority to Execute and Perform Agreements. Sunwin has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully their obligations hereunder.
This Agreement has been duly executed and delivered and is the valid and binding
obligation of Sunwin, enforceable in accordance with its terms, except as may be
limited by bankruptcy, moratorium, insolvency or other similar laws generally
affecting the enforcement of creditors' rights. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
the performance by Sunwin of this Agreement, in accordance with its respective
terms and conditions will not: (i) require the approval or consent of any
governmental or regulatory body, the Stockholders of Sunwin, or the approval or
consent of any other person; (ii) conflict with or result in any breach or
violation of any of the terms and conditions of, or constitute (or with any
notice or lapse of time or both would constitute) a default under, any order,
judgment or decree applicable to Sunwin, or any instrument, contract or other
agreement to which Sunwin is a party or by or to which Sunwin is bound or
subject; or (iii) result in the creation of any lien or other encumbrance on the
assets or properties of Sunwin.
3.14 Delivery of Periodic Reports; Compliance with 1934 Act. Sunwin has provided
the Company and the Shareholder with all of its financial reports.
3.15 Capitalization. The authorized capital stock of Sunwin consists of
500,000,000 shares of common stock, $.001 par value, of which none is presently
issued and outstanding and 20,000,000 shares of preferred stock, of which none
is issued and outstanding. Except as indicated in Schedule 3.14 hereto, Sunwin
has not granted, issued or agreed to grant, issue or make available any
warrants, options, subscription rights or any other commitments of any character
relating to the issued or unissued shares of capital stock of Sunwin.
3.16 Full Disclosure. No representation or warrant by Sunwin in this Agreement
or in any document or schedule to be delivered by it pursuant hereto, and no
written statement, certificate or instrument furnished or to be furnished to the
Company or the Shareholders pursuant hereto or in connection with the execution
or performance of this Agreement contains or will contain any untrue statement
of a material fact or omits or will omit to state any fact necessary to make any
statement herein or therein not materially misleading or necessary to a complete
and correct presentation of all material aspects of the business of Sunwin.
3.17 Representations and Warrants on Closing Date. The representations and
warrants contained in this Section 3 shall be true and complete on the Closing
Date with the same force and effect as through such representations and warrants
had been made on and as of the Closing Date on January 31, 2004.
SECTION 4. COVENANTS OF COMPANY AND SHAREHOLDER
The Company and the Shareholder covenant to Sunwin as follows:
4.1 Conduct of Business. From the date hereof through the Closing Date, the
Shareholder and The Company shall conduct its business in the ordinary course.
4.2 Preservation of Business. From the date hereof through the Closing Date, the
Shareholder and the Company shall use its best efforts to preserve its business
organization intact, keep available the services of its present employees,
consultants and agents, maintain its present suppliers and customers and
preserve its goodwill.
4.3 Litigation. The Company shall promptly notify Sunwin of any lawsuits,
claims, proceedings or investigations which after the date hereof are threatened
or commenced against the Company or against any officer, director, employee,
consultant, agent, shareholder or other representative with respect to the
affairs of the Company.
4.4 Continued Effectiveness of Representations and Warrants. From the date
hereof through the Closing Date, the Shareholder and the Company shall conduct
its business in such a manner so that the representations and warrants contained
in Section 2 shall continue to be true and correct on and as of the Closing Date
and as if made on and as of the Closing Date, and shall: (i) promptly give
notice to Sunwin of any event, condition or circumstance occurring from the date
hereof through the Closing Date which would render any of the representations or
warrants materially untrue, incomplete, insufficient or constitute a violation
or breach of this Agreement; and (ii) supplement the information contained
herein in order that the information contained herein is kept current, complete
and accurate in all material respects.
SECTION 5. COVENANTS OF Sunwin SUNWIN covenants to the Company and the
Shareholder as follows:
5.1 Conduct of Business. From the date hereof through the Closing Date, Sunwin
shall conduct its business in the ordinary course and, without the prior written
consent of the Company, shall ensure that Sunwin does not undertake any of the
actions specified in Section 3.12 hereof.
5.2 Preservation of Business. From the date hereof through the Closing Date,
Sunwin shall preserve its business organization intact and use its best efforts
to preserve Sunwin goodwill.
5.3 Litigation. Sunwin shall promptly notify the Company of any lawsuits,
claims, proceedings or investigations that after the date hereof are threatened
or commenced against Sunwin or against any officer, director, employee,
consultant, agent, or stockholder with respect to the affairs of Sunwin.
5.4 Continued Effectiveness of Representations and Warrants. From the date
hereof through the Closing Date, Sunwin shall conduct its business in such
a manner so that the representations and warrants contained in Section 3
shall continue to be true and correct on and as of the Closing Date and as
if made on and as of the Closing Date, and shall: (i) promptly give notice
to the Company of any event, condition or circumstance occurring from the
date hereof through the Closing Date which would render any of the
representations or warrants materially untrue, incomplete, insufficient or
constitute a violation or breach of this Agreement; and (ii) supplement the
information contained herein in order that the information contained herein
is kept current, complete and accurate in all material respects.
5.5 No Other Negotiations. From the date hereof until the earlier of
the termination of this Agreement or consummation of this Agreement,
Sunwin will not permit and will not authorize any officer or director
of Sunwin or any other person on its behalf to, directly or
indirectly, solicit, encourage, negotiate or accept any offer from any
party concerning the possible disposition of all or any substantial
portion of the capital stock by merger, sale or any other means or any
other transaction that would involve a change in control of Sunwin, or
any transaction in which Sunwin contemplates issuing equity or debt
securities.
SECTION 6. COVENANTS
6.1 Corporate Examinations and Investigations. Prior to the Closing
Date, the parties acknowledge that they have been entitled, through their
employees and representatives, to make such investigation of the assets,
properties, business and operations, books, records and financial condition of
the other as they each may reasonably require. No investigation by a party
hereto shall, however, diminish or waive in any way any of the representations,
covenants or agreements of the other party under this Agreement.
6.2 Expenses. Each party hereto agrees to pay its own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
6.3 Further Assurances. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to the Closing on January 31, 2004, including, without
limitation, the execution and delivery of any documents or other papers, the
execution and delivery of which are necessary or appropriate to the Closing.
6.4 Confidentiality. In the event the transactions contemplated by
this Agreement are not consummated, each of the parties hereto agree
to keep confidential any information disclosed to each other in
connection therewith for a period of one (1) year from the date
hereof; provided, however, such obligation shall not apply to
information which: (i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge (except due
to the action of the receiving party); (iii) the receiving party had
within its possession at the time of disclosure. (iv) the disclosure
of which is required by law, the SEC or other competent authority; (v)
which at the time of disclosure by one party written consents have
been obtained from the other parties.
SECTION 7. CONDITIONS PRECEDENT TO THE OBLIGATION OF SUNWIN TO CLOSE
The obligation of Sunwin to enter into and complete the Agreement is subject, at
the option of Sunwin, to the fulfillment on or prior to the Closing Date of the
following conditions, any one or more of which may be waived by Sunwin in
writing.
7.1 Representations and Covenants. The representations and warrants of
the Company and the Shareholders contained in this Agreement shall be true in
all material respects on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date. The Company and the
Shareholders shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied
with by the Company and the Shareholders on or prior to the Closing Date. The
Company and the Shareholders shall have delivered to Sunwin, if requested, a
certificate, dated the Closing Date, to the foregoing effect.
7.2 Governmental Permits and Approvals; Corporate Resolutions. Any and
all permits and approvals from any governmental or regulatory body
required for the lawful consummation of the Closing shall have been
obtained. The Board of Directors of the Company shall have approved
the transactions contemplated by this Agreement and the Company shall
have delivered to Sunwin, if requested by Sunwin, resolutions by its
Board of Directors, certified by the Secretary of the Company,
authorizing the transactions contemplated by this Agreement.
7.3 Satisfactory Business Review. Sunwin shall have satisfied itself,
after Sunwin and its representatives have completed the review of the
business of the Company contemplated by this Agreement, that none of
the information revealed thereby or in the Balance Sheet has resulted
in, or in the reasonable opinion of Sunwin may result in, a material
adverse change in the assets, properties, business, operations or
condition (financial or otherwise) of the Company.
7.4 Certificate of Good
Standing. Sunwin shall receive a certificate of good standing dated 10 business
days after the Closing Date to the effect that the Company is in good standing
under the laws of its jurisdictions of incorporation. 7.5 Stock Certificates: At
the Closing, the Shareholder will deliver the certificates representing the Qufu
Shares, duly endorsed (or with executed stock powers) so as to make Sunwin the
sole owner thereof within 10 business days. 7.8 Other Documents. The Company and
the Shareholder shall have delivered such other documents, instruments and
certificates, if any, as are required to be delivered pursuant to the provisions
of this Agreement or which may be reasonably requested in furtherance of the
provisions of this Agreement.
SECTION 8. CONDITIONS PRECEDENT TO THE OBLIGATION
OF THE COMPANY AND SHAREHOLDERS TO CLOSE
The obligation of the Company and the
Shareholder to enter into and complete the agreement is subject, at the option
of the Company and the Shareholder, to the fulfillment on or prior to the
Closing Date of the following conditions, any one or more of which may be waived
in writing by the Company.
8.1 Representations and Covenants. The representations and warrants of
Sunwin contained in this Agreement shall be true in all material
respects on the Closing Date with the same force and effect as though
made on and as of the Closing Date. Sunwin shall have performed and
complied with all covenants and agreements required by the Agreement
to be performed or complied with by Sunwin on or prior to the Closing
Date. Sunwin will deliver to the Company and the Shareholder, if
requested, a certificate, dated the Closing Date and signed by an
executive officer of Sunwin, to the foregoing effect within 10
business days after the closing.
8.2 Governmental Permits and Approvals; Corporate Resolutions. Any and all
permits and approvals from any governmental or regulatory body required for the
lawful consummation of the Agreement shall have been obtained. The Board of
Directors of Sunwin shall have approved the transactions contemplated by this
Agreement, and Sunwin will deliver to the Company and the Shareholder, if
requested, resolutions by their Board of Directors certified by the Secretary of
Sunwin authorizing the transactions contemplated by this Agreement within 10
business days after the closing.
8.3 Legal Opinion. Sunwin is to provide to the Company and the Shareholder a
Legal opinion that the Exchange qualifies as a tax-free reorganization under
Section 368(1)(1)(B) of the Internal Revenue Code of 1986, as amended.
8.4 Third Party Consents. All consents, permits and approvals from parties to
any contracts, loan agreements or other agreements with Sunwin which may be
required in connection with the performance by Sunwin of their obligations under
such contracts or other agreements after the Closing shall have been obtained.
8.5 Satisfactory Business Review. The Company and the Shareholder shall have
satisfied themselves, after the Company, the Shareholder and their
representatives and advisers have completed the review of business of Sunwin and
the information provided hereby or in connection herewith, or following any
discussions with management or representatives of SUNWIN that none of the
information revealed thereby has resulted in or in the reasonable opinion of the
Company may result in a material adverse change in the assets, properties,
business, operations or condition (financial or otherwise) of SUNWIN.
8.6 Litigation. No action, suit or proceeding shall have been instituted before
any court or governmental or regulatory body or instituted or threatened by any
governmental or Regulatory body to restrain, modify or prevent the carrying out
of the transactions contemplated hereby or to seek damages or a discovery order
in connection with such Transactions, or which has or may in the reasonable
opinion of the Company and the Shareholder, have a materially adverse effect on
the assets, properties, business, operations or condition (financial or
otherwise) of SUNWIN.
8.7 Certificate of Good Standing. The Company and the Shareholder shall receive
a certificate of good standing within 10 business days after the Closing Date to
the effect that the Company is in good standing under the laws of its
jurisdictions of incorporation.
8.8 Stock Certificates. At the Closing, the Shareholder shall receive
certificates representing the SUNWIN Shares to be received pursuant hereto and
subject to the conditions previously described within 10 business days.
8.9 Other Documents. SUNWIN shall have delivered such other instruments,
documents and certificates, if any, as are required to be delivered pursuant to
the provisions of this Agreement or which may be reasonably requested in
furtherance of the provisions of this Agreement.
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WQUFUTIES OF SUNWIN
Notwithstanding any right of the Company and the Shareholders fully to
investigate the affairs of SUNWIN, the former shall have the right to rely fully
upon the representations, warrants, covenants and agreements of SUNWIN contained
in this Agreement or in any document delivered by SUNWIN or any of its
representatives, in connection with the transactions contemplated by this
Agreement. All such representations, warrants, covenants and agreements shall
survive the execution and delivery hereof and the Closing Date hereunder for
twelve (12) months following the Closing.
SECTION 11. SURVIVAL OF REPRESENTATIONS AND WQUFUTIES OF THE COMPANY AND THE
SHAREHOLDERS
Notwithstanding any right of SUNWIN fully to investigate the affairs of the
Company, SUNWIN has the right to rely fully upon the representations, warrants,
covenants and agreements of the Company and the Shareholder contained in this
Agreement or in any document delivered to SUNWIN by the Company or the
Shareholder or any of their representatives in connection with the transactions
contemplated by this Agreement. All such representations, warrants, covenants
and agreements shall survive the execution and delivery hereof and the Closing
Date hereunder for twelve (12) months following the Closing.
SECTION 12. INDEMNIFICATION
12.1 Obligation of SUNWIN to Indemnify. Subject to the limitations on the
survival of representations and warrants contained in Section 9, SUNWIN hereby
agrees to indemnify, defend and hold harmless the Company and the Shareholder
from and against any losses, liabilities, damages, deficiencies, costs or
expenses (including interest, penalties and reasonable attorneys' fees and
disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of SUNWIN contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement.
12.2 Obligation of the Company and the Shareholder to Indemnify. Subject to the
limitations on the survival of representations and warrants contained in Section
10, the Company and the Shareholder agree to indemnify, defend and hold harmless
SUNWIN from and against any Loss, based upon, arising out of or otherwise due to
any inaccuracy in or any breach of any representation, warranty, covenant or
agreement made by any of them and contained in this Agreement or in any document
or other writing delivered pursuant to this Agreement.
SECTION 13. THE CLOSING The Closing shall take place not later than January 31,
2004. At the Closing, the parties shall provide each other with such documents
as may be necessary or appropriate in order to consummate the transactions
contemplated hereby including evidence of due authorization of the Agreement and
the transactions contemplated hereby.
SECTION 14. MISCELLANEOUS
14.1 Waivers. The waiver of a breach of this Agreement or the failure of any
party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
14.2 Amendment. This Agreement may be amended or modified only by an instrument
of equal formality signed by the parties or the duly authorized representatives
of the respective parties.
14.3 Assignment. This Agreement is not assignable except by operation of law.
14.4 Notices. Until otherwise specified in writing, the mailing addresses of
both parties of this Agreement shall be as follows:
The Company
N0.6 Youpeng Road
Qufu City, Shandong China
The Shareholder:
N0.6 Youpeng Road
Qufu City, Shandong China
SUNWIN:
0000 Xxxxxx Xxxx, #000
Xxxx Xxxxx, XX 00000 XXX
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address that shall have been furnished in
writing to the addressor.
14.5 Governing Law. This Agreement shall be construed, and the legal relations
be the parties determined, in accordance with the laws of the State of Florida,
thereby precluding any choice of law rules which may direct the applicable of
the laws of any other jurisdiction.
14.6 Publicity. No publicity release or announcement concerning this Agreement
or the transactions contemplated hereby shall be issued by either party hereto
at any time from the signing hereof without advance approval in writing of the
form and substance thereof by the other party except as required to stay in
compliance with the SUNWIN reporting obligations under the Securities Exchange
Act of 1934.
14.7 Entire Agreement. This Agreement and the collateral agreements executed in
connection with the consummation of the transactions contemplated herein contain
the entire agreement among the parties with respect to the purchase and issuance
of the SUNWIN' Shares and the SUNWIN Shares and related transactions, and
supersede all prior agreements, written or oral, with respect thereto.
14.8 Headings. The headings in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
14.9 Severability of Provisions. The invalidity or unenforceability of any term,
phrase, clause, paragraph, restriction, covenant, agreement or other provision
of this Agreement shall in no way affect the validity or enforcement of any
other provision or any part thereof.
14.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
SUNWIN TECH GROUP, INC.
Baozhong Yuan
CEO
Qufu Natural Green Engineering Company, Limited
Shareholder,
SHANDONG SHENGWANG PHARMACEUTICAL GROUP CORPORATION
