AGREEMENT FOR THE PURCHASE AND SALE OF STOCK
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THIS AGREEMENT is made and entered into on this 29th day of December 2005,
by and among Far Coast Asia Limited, a company incorporated under the laws of
the British Virgin Islands, the correspondence address of which is Room 1406
Xxxxx Xxxxx, 00000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx ("Buyer") and Teda Hotels
Management Ltd, a Hong Kong corporation, the address of which is Suite 0000,
Xxxxxxxxx Xxxxxxx Xxxxx, 000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx ("Seller".).
RECITALS:
A. Seller owns 35% shares (the "Shares") of the total capital investment of
Tianjin Teda Yide Industrial Company Ltd (the "Corporation"), a sino-foreign
equity joint venture company in the People's Republic of China which represents
35% of the total paid up capital of the Corporation.
B. Buyer desires to purchase the Shares from the Seller, and the Seller
desires to sell the Shares to Buyer, so that as a result of the transaction,
Buyer will hold a 35% ownership interest in the Corporation.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.01 Sale and Transfer of Shares. Subject to the terms and conditions
set forth in this Agreement, on the Closing Date (as defined in Section 1.03),
Seller will transfer and convey the Shares to Buyer, and Buyer will acquire the
Shares from Seller, free and clear of all liens, encumbrances, security
interests, rights of first refusal, equities, options, claims, charges and
restrictions. On the Closing Date, the certificates representing the Shares
shall be duly endorsed in blank for transfer, or accompanied by separate written
instruments of assignment and shall be accompanied by such other or further
supporting documents as Buyer or its counsel may reasonably require.
Section 1.02 Purchase Price. The aggregate purchase price for the Shares is
$3,000,000.00 (the "Purchase Price"), payable to the Seller, as follows:
a. An amount equal to the sum of $300,000.00, payable via bank wire
transfer in immediately available funds to Seller upon execution of this
Agreement in accordance with the Wire Transfer Instructions attached hereto as
Exhibit 1.02(a) (the "Initial Cash Consideration"); and
b. An amount equal to the sum of $2,700,000.00, payable via bank wire
transfer in immediately available funds to Seller upon the closing of this
transaction in accordance with the Wire Transfer Instructions attached hereto as
Exhibit 1.02(a) (the "Closing Cash Consideration").
Section 1.03 Time and Place of Closing. The closing (the "Closing") shall occur
on the first business day after Seller's delivery of full transfer
documentations required and duly signed by the Seller to the Buyer or its agent,
tentatively projected to be January 31, 2006 (the "Closing Date") provided that
the buyer shall assume the responsibility and obligation to obtain all requisite
consents and approval of the other shareholder of the Corporation and also of
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Section 1.03 Time and Place of Closing - continued
the relevant government or regulatory authority in the People's Republic of
China as may be required to give effect to the sale and transfer of the Shares
hereunder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
Section 2.01 Organization, Standing and Power. Seller is duly organized, validly
existing and in good standing under the laws of the HKSAR and has all necessary
corporate power to own its properties and to carry on its business as now owned
and operated by it. The Corporation is in good standing in each jurisdiction in
which the character of the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary.
Section 2.02 Capitalization. The registered capital of the Corporation is RMB
eighty million (RMB80,000,000) of which RMB twenty-eight million (RMB28,000,000)
has been paid by the Seller as capital contribution to the Corporation. The
Shares constitute 35% of all of the capital investment regarding the
Corporation, and this capital investment and shareholding by the Seller has been
properly documented, approved and registered with relevant PRC government
authorities. There are no outstanding subscriptions, options, rights, warrants,
convertible securities or other agreements or commitments providing for the
issuance, disposition or acquisition of any of the Corporation's capital stock
(other than this Agreement).
Section 2.03 Title to Shares. Seller is the owner, beneficially and of record,
of all right, title and interest in and to the Shares. Seller has good and
marketable title to all of the Shares, free and clear of all Encumbrances other
than the requirements applicable to all shares of the Corporation that the sale,
transfer or disposition of the shares will be subject to the consent of all
shareholders of the Corporation and also the approval of the government
regulatory authorities. Seller is not a party to any option, warrant, right,
contract, call, put or other agreement or commitment providing for the
disposition or acquisition of any of the Shares (other than this Agreement).
Section 2.04 Authority.
a. Subject to paragraph b hereunder, the Seller has all requisite power and
authority to execute and deliver this Agreement and all other agreements and
documents to be executed and delivered by them in connection with the
consummation of the transactions contemplated by this Agreement (collectively,
the "Seller Agreements"), and to perform the transactions contemplated hereby
and thereby. The execution, delivery and performance of the Seller Agreements
and the consummation of the transactions contemplated hereby and thereby, have
been duly and validly authorized by all necessary corporate and shareholder
action on the part of the Seller. The Seller Agreements have been duly executed
and delivered by Seller, and each constitutes the valid and binding obligation
of Seller, enforceable against Seller in accordance with the terms of such
Seller Agreements, except that enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by principles of equity regarding the
availability of remedies.
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Section 2.04 Authority - continued
b. Notwithstanding anything to the contrary herein contained, the parties
hereto hereby agree that the Buyer shall be solely responsible for the
procurement of all relevant consent and approval of the other shareholders of
the Corporation and also the approval of all relevant PRC government regulatory
authorities which may be required in order to give effect to the sale and
transfer of the Shares hereunder.
Section 2.05 No Conflict or Breach. The execution, delivery and performance of
the Seller Agreements and the consummation of the transactions hereby and
thereby do not and will not (A) conflict with or constitute a violation of the
Certificate of Incorporation or Bylaws of the Seller; (B) conflict with or
constitute a violation of any law, statute, judgment, order, decree or
regulation of any legislative body, court, administrative agency, governmental
authority or arbitrator applicable to or relating to the Seller or the Shares;
(C) conflict with, constitute a default under, result in a breach or
acceleration of or, except as set forth on Schedule 2.05, require notice to or
the consent of any third party under any contract, agreement, commitment,
mortgage, note, license or other instrument or obligation to which the Seller or
the Corporation is a party or by which the Seller or the Corporation is bound or
by which the Shares are affected; or (D) result in a creation or imposition of
any Encumbrance of any nature whatsoever on any of the Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Shareholder as follows:
Section 3.01 Organization. Buyer is duly organized, validly existing and in good
standing under the laws of the State of Hong Kong and has all necessary
corporate power to own its properties and to carry on its business as now owned
and operated by it.
Section 3.02 Authorization. Buyer has all requisite power and authority to
execute and deliver this Agreement and all other agreements and documents to be
executed and delivered by it in connection with the consummation of the
transactions contemplated by this Agreement (collectively, the "Buyer
Agreements"), and to perform the transactions contemplated hereby and thereby.
The execution, delivery and performance of the Buyer Agreements and the
consummation of the transactions contemplated hereby and thereby, have been duly
and validly authorized by all necessary corporate action on the part of Buyer.
The Buyer Agreements have been, and with respect to Buyer Agreements to be
delivered at the Closing, will be duly executed and delivered by Buyer, and each
constitutes, or will constitute when executed and delivered, the valid and
binding obligation of` Buyer, enforceable against Buyer in accordance with the
terms of such Buyer Agreements, except that enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by principles of equity regarding the
availability of remedies.
Section 3.03 No Breach or Violation. The execution, delivery and performance of
the Buyer Agreements and the consummation of the transactions contemplated
hereby and thereby do not and xxxx not (A) conflict with or constitute a
violation of the Certificate of Incorporation or Bylaws of Buyer; (B) conflict
with or constitute a violation of any law, statute, judgment, order, decree or
regulation of any legislative body, court, administrative agency, governmental
authority or arbitrator applicable to or relating to Buyer; (C) conflict with,
constitute a default under or result in a breach or acceleration of any
contract, agreement, commitment, mortgage, note, license or other instrument or
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Section 3.03 No Breach or Violation - continued
obligation to which Buyer is a party or by which Buyer is bound; or (D) result
in a creation or imposition of any lien, charge or encumbrance of any nature
whatsoever on any of its shares to be delivered to Shareholder in connection
herewith other than those restrictions imposed under federal and state
securities laws.
Section 3.05 Investment Representations. In connection with the acquisition by
Buyer of shares of the Corporation Common Stock (collectively, the "Securities")
as provided in this Agreement:
a. Buyer has been given the opportunity to ask questions and receive
answers concerning the Corporation and the terms and conditions of the offer and
sale and to obtain any additional information possessed by the Corporation or
which the Corporation could acquire without unreasonable effort or expense
necessary to verify the accuracy of the information provided to Shareholder
about Buyer.
b. Buyer is acquiring the Securities solely for his own account for
investment and not with the view to sale or distribution of the Securities
acquired hereunder or any portion thereof and not with any present intention of
selling, offering to sell, or otherwise disposing of or distributing the
Securities acquired hereunder or any portion thereof.
c. Buyer has received all information it deems necessary and appropriate to
enable it to evaluate the financial risk inherent in making an investment in the
Securities.
d. Buyer is an accredited investor as such term is defined in Regulation D,
Rule 501 under the Securities Act of 1933, as amended (the "Act") or is
sophisticated in financial matters and able to evaluate the risks and benefits
of an investment in Buyer.
Section 3.07 Consents and Approvals. Schedule 3.07 describes (A) each consent,
approval, authorization, registration or filing with any federal, state or local
judicial or governmental authority or administrative agency, and (B) each
consent, approval, authorization of or notice to any other third party, which is
required in connection with the valid execution and delivery by Buyer of the
Agreements, or the consummation by Buyer of the transactions contemplated hereby
and thereby (the items described in clauses (A) and (B), collectively, the
"Required Consents").
Section 3.08 Accuracy and Completeness of Representations and Warranties. No
representation or warranty made by Buyer in this Agreement and no statement
contained in any document or instrument delivered or to be delivered to Seller
pursuant hereto or in connection with the transactions contemplated hereby
contain any untrue statement of a known material fact, or omits to state a known
material fact necessary to make the statements contained herein or therein, in
light of the circumstances under which they were made, not misleading.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 Communications. The Buyer agrees that it will not make any public
announcement or disclosure of this Agreement or the transactions contemplated
hereby without the advance written consent of Seller, except that it may
disclose such matters to the Corporation's directors, officers, employees and
professional advisors having a need to know, or to lending institutions that are
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Section 4.01 Communications - continued
involved in such transactions. Buyer understands that Seller's parent company is
subject to applicable disclosure requirements of the United States Securities
Exchange Act of 1934, and will be required to make certain public announcements
or disclosures of this Agreement or the transactions contemplated hereby.
Section 4.02 Finder's or Broker's Fees. Except for New Fortune Capital Holdings
Limited for whose commission Seller has sole responsibility, the parties
represent and warrant that they have dealt with no broker or finder in
connection with any of the transactions contemplated by this Agreement, and,
insofar as they know, no broker or other person is entitled to any commission or
finder's fee in connection with any of these transactions. Each party agrees to
indemnify and hold harmless the other against any loss, liability, damage, cost,
claim or expense incurred by reason of any brokerage, commission or finder's fee
alleged to be payable by reason of any of their acts, omissions or statements.
Section 4.03 Expenses. Buyer and Seller shall, individually, pay their
respective costs and expenses incurred or to be incurred by any of them in
negotiating and preparing this Agreement and in closing and carrying out the
transactions contemplated hereby.
Section 4.04 Effect of Headings. The subject headings of the Articles and
Sections of this Agreement are included for purposes of convenience only, and
shall not affect the construction or interpretation of any of the provisions
hereof.
Section 4.05 Entire Agreement. Modification. This Agreement, together with all
of the schedules and exhibits furnished hereunder, constitute the sole and
entire agreement among the parties pertaining to the subject matter contained
herein, and supersedes all prior and contemporaneous agreements, representations
and understandings of the parties. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all the parties.
Section 4.06 Waiver. Any party hereto may waive, in writing, compliance by the
other party of any of the covenants or conditions contained in this Agreement,
except those conditions imposed by law. No act, failure to act, practice or
custom shall constitute an implied waiver of full compliance with any of the
provisions hereof. The granting of a written waiver pursuant to this Section
4.06 shall apply, unless expressly set forth therein to the contrary, only to
the specific incident of noncompliance with the specific provisions of this
Agreement set forth therein.
Section 4.07 Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. A party may execute
this Agreement and transmit its signature by facsimile, which shall be fully
binding, and the party taking such actions shall deliver a manually signed
original as soon as is practicable.
Section 4.08 Parties in Interest. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to this Agreement and their
respective successors and assigns, or is intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement.
None of the provisions hereof shall be deemed to give any third persons any
right of subrogation or action over or against any party to this Agreement.
Section 4.09 Binding Effect. This Agreement shall be binding on, and shall inure
to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
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Section 4.10 Recovery of Litigation Costs. Except as otherwise provided
elsewhere in this Agreement, if any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement or by reason of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees, other professionals'
fees, and other costs incurred in that action or proceeding, in addition to any
other relief to which it or they may be entitled.
Section 4.11 Successors and Assigns. Neither party's rights or obligations under
this Agreement may be assigned. Any assignment in violation of the foregoing
shall be null and void.
Section 4.12 Notices. Any notices, consent, approval or other communications
given pursuant to the provisions of this Agreement shall be in writing and shall
be (A) mailed by certified mail or registered mail, return receipt requested,
postage prepaid, or (R) delivered by a nationally recognized overnight courier,
Express Mail, or similar overnight courier which delivers only upon signed
receipt of the addressee, and addressed as provided in the introductory
..paragraph hereto. The time of giving of any notice shall be the time of receipt
thereof by the addressee or any agent of the addressee, except that in the event
the addressee or such agent of the addressee shall refuse to receive any notice
given by registered mail or certified mail as above provided or there shall be
no person available at the time of the delivery there of to receive such notice,
the time of the giving of such notice shall be the time of such refusal or the
time of such delivery, as the case may be. Any party hereto may, by giving five
(5) days written notice to the other party hereto, designate any other address
in substitution of the foregoing address to which notice shall be given.
Section 4.13 Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws off the Hong Kong Special Administrative Region of The
People's Republic of China (HKSAR), without giving effect to any choice of law
or conflict provision or rule, whether of the HKSAR (or any other jurisdiction)
that would cause the laws of any jurisdiction other than the HKSAR to be
applied. In furtherance of the foregoing, the internal law of the HKSAR will
control the interpretation and construction of this Agreement, even if under
such jurisdiction's choice of law or conflict of law or analysis, the
substantive law of some other jurisdiction would ordinarily apply. Should a
dispute arise between the parties as a result of this Agreement, any action
shall be submitted to binding arbitration in the HKSAR.
Section 4.14 Termination Events. This Agreement may be terminated by mutual
written consent of the parties, or by either party if the Closing has not
occurred for any reason whatsoever on or before March 30, 2006, or such later
date as the parties may agree upon, time being of the essence. If this Agreement
is terminated as provided above, all further obligations of the parties under
this Agreement will terminate.
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IN WITNESS WHEREOF, each of the parties hereto have signed this Agreement
for the Purchase and Sale of Stock or has caused the same to be signed by its
duly authorized officer as of the date first above written.
BUYER:
Far Coast Asia Limited
FAR COAST ASIA LTD.
/s/ CJC
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CJC
Its: Director
SELLER:
Teda Hotels Management Limited
/s/ Xxxxxxx Xxxx Xxxx Xxx
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Xxxxxxx Xxxx Xxxx Xxx
Its: CEO & Director
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EXHIBIT 1.02(a)
Seller's Wire Instructions
BANK ACCOUNT NAME: TEDA HOTELS MANAGEMENT LTD
BANK NAME: THE HONG KONG BANKING COPORATION LTD
BANK ACCOUNT NO.: 000-000000-000
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SCHEDULE 2.05
Seller's Third Party Consents
NONE
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SCHEDULE 3.07
Buyer's Consents
NONE
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IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written'
Consent of Directors as of the above date, thereby agreeing that the foregoing
resolutions shall be of the same force and effect as if regularly adopted at a
meeting of the Board of Directors of the above corporation held upon due notice.
/s/ Zhi Xxxx Xxxxx
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Zhi Xxxx Xxxxx
/s/ Xxxxxxx Xxxx Xxxx Xxx
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Xxxxxxx Xxxx Xxxx Xxx
/s/ Xxxxxx Xxxx Xxxx So
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Xxxxxx Xxxx Xxxx So
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UNANIMOUS WRITTEN CONSENT OF DIRECTORS
OF TEDA TRAVEL GROUP, INC.
a Delaware corporation
December 29, 2005
The undersigned, being the persons named as all of the duly elected
directors of TEDA Travel Group, Inc., a Delaware corporation, acting pursuant to
Section 108(c) of the General Corporation Law of Delaware, do, in lieu of a
meeting of the board of directors, hereby consent to the adoption of the
following resolutions and to the actions set forth therein as of the above date
and time.
WHEREAS, Mr. Xxx Xxxx Xxxx has recently resigned from his directorship with
the Company, leaving a vacancy on the Board;
WHEREAS, the Board deems it advisable, and in the best interests of the
Company to elect Xxxxxx So to the Board of Directors of the Company, effective
immediately; and
NOW THEREFORE BE IT RESOLVED, that the Board of Directors of the Company
hereby elects Mr. So to fill the vacancy on the Board of Directors of the
Company resulting from the resignation of Xx. Xxxx, effective immediately, to
serve as such until his successor has been elected and qualified, or until his
earlier resignation, removal or death.
IN WITNESS WHEREOF, the undersigned have executed this Unanimous Written
Consent of Directors as of the above date, thereby agreeing that the foregoing
resolutions shall be of the same force and effect as if regularly adopted at a
meeting of the Board of Directors of the above corporation held upon due notice.
/s/ Zhi Xxxx Xxxxx
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Zhi Xxxx Xxxxx
/s/ Xxxxxxx Xxxx Xxxx Xxx
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Xxxxxxx Xxxx Xxxx Xxx
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