STOCK PURCHASE AGREEMENT By and Between GENERAL COMPONENTS, INC. and GENERAL COMPONENTS INTERNATIONAL LTD. Dated as of December 22, 2006
By
and
Between
and
GENERAL
COMPONENTS INTERNATIONAL LTD.
Dated
as
of December 22, 2006
STOCK
PURCHASE AGREEMENT, dated as of December 22, 2006, between and between General
Components, Inc., a company formed under the laws of Nevada (the “Seller”)
and
General Components International Ltd., a company formed under the laws of the
British Virgin Islands (the “Buyer”).
WITNESSETH:
WHEREAS,
the Seller own 100.0% of the issued and outstanding shares (the “Shares”)
of
common stock, $0.01 par value per share (the “Common
Stock”),
of
General Components, Inc., a company formed under the laws of the Cayman Islands
(the “Company”);
and
WHEREAS,
the Company has three wholly-owned subsidiaries, General Components Inc., a
New
Jersey corporation, General Components Limited, a Hong Kong limited company
and
General Components, Inc., a Chinese company (the “Subsidiaries”);
and
WHEREAS,
the Seller wishes to sell to the Buyer, and the Buyer wishes to purchase from
the Seller, the Shares, upon the terms and subject to the conditions set forth
herein;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements and
covenants hereinafter set forth, the Buyer and the Seller hereby agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01 Certain
Defined Terms.
As used
in this Agreement, the following terms shall have the following
meanings:
“Action”
means
any claim, action, suit, arbitration, inquiry, proceeding or investigation
by or
before any Governmental Authority.
“Affiliate”
means,
with respect to any specified Person, any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by,
or is
under common control with, such specified Person.
“Buyer”
has
the
meaning specified in the recitals to this Agreement.
“Closing”
has
the
meaning specified in Section 2.03.
“Closing
Date”
has
the
meaning specified in Section 2.03.
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“Common
Stock”
has
the
meaning specified in the recitals to this Agreement.
“Company”
has
the
meaning specified in the recitals to this Agreement.
“Control”
(including the terms “controlled
by”
and
“under
common control with”),
with
respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly or as trustee or executor, of the power
to
direct or cause the direction of the affairs or management of a Person, whether
through the ownership of voting securities, as trustee or executor, by contract
or otherwise, including, without limitation, the ownership, directly or
indirectly, of securities having the power to elect a majority of the board
of
directors or similar body governing the affairs of such Person.
“Encumbrance”
means
any security interest, pledge, mortgage, lien (including, without limitation,
environmental and tax liens), charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including, without limitation, any
restriction on the use, voting, transfer, receipt of income or other exercise
of
any attributes of ownership.
“Governmental
Authority”
means
any United States federal, state or local or any foreign government,
governmental, regulatory or administrative authority, agency or commission
or
any court, tribunal, or judicial or arbitral body.
“Governmental
Order”
means
any order, writ, judgment, injunction, decree, stipulation, determination or
award entered by or with any Governmental Authority.
“Law”
means
any federal, state, local or foreign statute, law, ordinance, regulation, rule,
code, order, other requirement or rule of law.
“Liabilities”
means
any and all debts, liabilities and obligations, whether accrued or fixed,
absolute or contingent, matured or un-matured or determined or determinable,
including, without limitation, those arising under any Law, Action or
Governmental Order and those arising under any contract, agreement, arrangement,
commitment or undertaking.
“Loss”
has
the
meaning specified in Section 7.01.
“Material
Adverse Effect”
means
any circumstance, change in, or effect on the business of the Company that,
individually or in the aggregate with any other circumstances, changes in,
or
effects on, the business of the Company: (a) is, or could be, materially adverse
to the business, operations, assets or Liabilities, employee relationships,
customer or supplier relationships, prospects, results of operations or the
condition (financial or otherwise) of the Company or (b) could adversely affect
the ability of the Buyer or the Company to operate or conduct any lawful
business. With respect to Section 3.03 only, “Material Adverse Effect” means any
circumstance, change in, or effect on the business of the Seller that,
individually or in the aggregate, could adversely affect the ability of the
Seller to authorize, execute or perform under this Agreement.
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“Person”
means
any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity, as well as any syndicate or group
that would be deemed to be a person under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
“Purchase
Price”
has
the
meaning specified in Section 2.02.
“SEC”
has
the
meaning specified in Section 3.07.
“Seller”
has
the
meaning specified in the recitals to this Agreement.
“Subsidiaries”
has
the
meaning specified in the recitals to this Agreement.
“Tax”
or
“Taxes”
means
any and all taxes, fees, levies, duties, tariffs, imposts, and other charges
of
any kind (together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any government
or
taxing authority, including, without limitation: taxes or other charges on
or
with respect to income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social security,
workers' compensation, unemployment compensation, or net worth; taxes or other
charges in the nature of excise, withholding, ad valorem, stamp, transfer,
value
added, or gains taxes; license, registration and documentation fees; and customs
duties, tariffs, and similar charges.
ARTICLE
II
PURCHASE
AND SALE
SECTION
2.01 Purchase
and Sale of the Shares.
Upon
the terms and subject to the conditions of this Agreement, at the Closing,
the
Seller shall sell to the Buyer, and the Buyer shall purchase from the Seller,
free and clear of any Encumbrance the, Shares constituting 100.0% of the
Company’s outstanding capital stock.
SECTION
2.02 Purchase
Price.
The
total purchase price for the Shares shall be one dollar (the “Purchase
Price”).
SECTION
2.03 Closing.
Upon
the terms and subject to the conditions of this Agreement, the sale and purchase
of the Shares contemplated by this Agreement shall take place at a closing
(the
“Closing”)
to be
held at the offices of Loeb & Loeb LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
at 10:00 A.M. New York time two business days following satisfaction or waiver
of all conditions to the obligations of the parties set forth in Article VI,
or
at such other place or at such other time or on such other date as the Seller
and the Buyer may agree upon in writing (the day on which the Closing takes
place being the “Closing
Date”).
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SECTION
2.04 Closing
Deliveries by the Seller.
At the
Closing, the Seller shall deliver or cause to be delivered to the
Buyer:
(a) stock
certificates evidencing the Shares, duly endorsed in blank, or accompanied
by
stock powers duly executed in blank, in form satisfactory to the Buyer and
with
all required stock transfer tax stamps affixed;
(b) a
receipt
for the Purchase Price; and
(c) the
opinions, certificates and other documents required to be delivered pursuant
to
Section 8.02.
SECTION
2.05 Closing
Deliveries by the Buyer.
At the
Closing, the Buyer shall deliver to the Seller:
(a) the
Purchase Price; and
(b) the
opinions, certificates and other documents required to be
delivered pursuant to Section 8.01.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
THE SELLER
As
an
inducement to the Buyer to enter into this Agreement, the Seller hereby
represents and warrants to the Buyer as follows:
SECTION
3.01 Organization,
Authority and Qualification of the Seller.
The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has all necessary power
and authority to execute, deliver, and perform this Agreement. The Seller is
duly licensed or qualified to do business and is in good standing in each
jurisdiction in which the properties owned or leased by it or the operation
of
its business makes such licensing or qualification necessary. The execution,
delivery, and performance of this Agreement by the Seller, have been duly
authorized by all requisite action on the part of the Seller. This Agreement
constitutes a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms.
SECTION
3.02 Title
to the Shares, etc.
The
Seller has good and marketable title to the Shares, free and clear of any
Encumbrance. The Shares have been legally and validly issued are fully paid
and
nonassessable. Except pursuant to this Agreement, the Seller has no agreement,
arrangement, or understanding with respect to the Shares or the Seller’s
ownership thereof.
SECTION
3.03 Ownership
of Subsidiaries.
The
Company owns, free and clear of any Encumbrance, 100% of all of the
Subsidiaries’ outstanding ownership interests and, directly or indirectly, such
Subsidiaries’tangible and intangible assets, brand names, trademarks,
distribution networks, patents, technology, receivables, inventory and/or
contracts.
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SECTION
3.04 No
Seller Conflict.
The
execution, delivery and performance of this Agreement by the Seller do not
and
will not (a) violate, conflict with or result in the breach of any provision
of
the organizational documents of the Seller, (b) conflict with or violate (or
cause an event which could have a Material Adverse Effect as a result of) any
Law or Governmental Order applicable to the Seller or any of its assets,
properties, or business, or require any consent, approval, authorization or
other order of, action by, filing with or notification to any Governmental
Authority, or (c) conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, require any consent under, or give to others any right
of termination, amendment, acceleration, suspension, revocation or cancellation
of, or result in the creation of any Encumbrance on any of the Shares or on
any
of the assets or properties of the Seller.
SECTION
3.05 Organization,
Authority and Qualification of the Company.
The
Company is a company duly organized, validly existing and in good standing
under
the laws of the Cayman Islands and has all necessary power and authority to
own,
operate or lease the properties and assets now owned, operated, or leased by
it.
All corporate actions taken by the Company have been duly authorized, and the
Company has not taken any action that in any respect conflicts with, constitutes
a default under, or results in a violation of any provision of its
organizational documents.
SECTION
3.06 Capital
Stock of the Company; Ownership of the Shares.
(a)
The
authorized capital stock of the Company consists of 30,000,000 shares of Common
Stock. As of the date hereof, 12,963,401 shares of Common Stock are issued
and
outstanding, all of which are validly issued, fully paid and nonassessable.
None
of the issued and outstanding shares of Common Stock was issued in violation
of
any preemptive rights. There are no options, warrants, convertible securities
or
other rights, agreements, arrangements, or commitments of any character relating
to unissued capital stock of the Company or obligating any Seller or the Company
to issue or sell any shares of capital stock of, or any other interest in,
the
Company. There are no outstanding contractual obligations of the Company to
repurchase, redeem or otherwise acquire any shares of Common Stock or to provide
funds to, or make any investment (in the form of a loan, capital contribution
or
otherwise) in, any other Person. The Company has not taken any action in respect
of any merger, consolidation, sale of all or substantially all of its assets,
reorganization, recapitalization, dissolution, or liquidation, except as
contemplated by this Agreement. The Shares constitute 100.0% of the issued
and
outstanding capital stock of the Company, and, upon consummation of the
transactions contemplated by this Agreement and registration of the Shares
in
the name of the Buyer in the stock records of the Company, the Buyer, assuming
it shall have purchased the Shares for value in good faith and without notice
of
any adverse claim, will own 100.0% of the issued and outstanding capital stock
of the Company. Upon consummation of the transactions contemplated by this
Agreement, the Shares will be fully paid and nonassessable.
5
(b) The
stock
register of the Company accurately records: (i) the name and address of each
Person owning shares of capital stock of the Company and (ii) the certificate
number of each certificate evidencing shares of capital stock issued by the
Company, the number of shares evidenced by each such certificate, the date
of
issuance thereof and, in the case of cancellation, the date of
cancellation.
SECTION
3.07 Corporate
Books and Records.
The
minute books of the Company contain accurate records of all meetings and
accurately reflect all other actions taken by the stockholders, Board of
Directors and all committees of the Board of Directors of the Company. Complete
and accurate copies of all such minute books and of the stock register of the
Company have been provided by the Company to the Buyer.
SECTION
3.08 Full
Disclosure.
The
Seller are not aware of any facts pertaining to the Company that affect
adversely the Company or which are likely in the future to affect the Company
adversely, except as disclosed in this Agreement or otherwise known to the
Buyer. No representation or warranty of the Seller in this Agreement or any
statement or certificate furnished or to be furnished to the Buyer pursuant
to
this Agreement, or in connection with the transactions contemplated by this
Agreement, contains or will contain any untrue statement of a material fact,
or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
SECTION
3.09 Brokers.
No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of the Seller
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
OF
THE BUYER
As
an
inducement to the Seller to enter into this Agreement, the Buyer hereby
represents and warrants to the Seller as follows:
SECTION
4.01 Organization
and Authority of the Buyer.
The
Buyer is a company duly organized, validly existing, and in good standing under
the laws of the British Virgin Islands and has all necessary corporate power
and
authority to execute, deliver, and perform this Agreement. The execution,
delivery, and performance of this Agreement has been duly authorized by all
requisite action on the part of the Buyer. This Agreement shall have been duly
executed and delivered by the Buyer, and (assuming due authorization, execution,
and delivery by each other party thereto) constitutes a legal, valid, and
binding obligation of the Buyer enforceable against the Buyer in accordance
with
its terms.
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SECTION
4.02 No
Conflict.
The
execution, delivery and performance of this Agreement by the Buyer do not and
will not (a) violate, conflict with or result in the breach of any provision
of
the charter, bylaws, or similar organizational documents of the Buyer, (b)
conflict with or violate any Law or Governmental Order applicable to the Buyer
or require any consent, approval, authorization, or other order of, action
by,
filing with, or notification to any Governmental Authority, or (c) conflict
with, or result in any breach of, constitute a default (or event which with
the
giving of notice or lapse or time, or both, would become a default) under,
require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, or result
in the creation of any Encumbrance on any of the assets or properties of the
Buyer that would have a material adverse effect on the ability of the Buyer
to
consummate the transactions contemplated by this Agreement.
SECTION
4.03 Investment
Purpose.
The
Buyer is acquiring the Shares solely for the purpose of investment and not
with
a view to, or for offer or sale in connection with, any distribution
thereof.
SECTION
4.04 Brokers.
No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated by
this
Agreement based upon arrangements made by or on behalf of the Buyer.
ARTICLE
V
ADDITIONAL
AGREEMENTS
SECTION
5.01 Conduct
of Business Prior to the Closing.
The
Seller covenants and agrees, that, between the date hereof and the time of
the
Closing, the Company shall not conduct any business, except to consummate the
transactions contemplated by this Agreement or as required to comply with
applicable law, rule or regulation. Without limitation, since September 30,
2006:
(a) except
to
consummate the transactions contemplated by the Agreement, the Company has
not
incurred and shall not incur any liability or commitment or any contingent
liability or commitment (whether due before or after the Closing) or become
party to any agreement; and
(b) the
Company has not issued and shall not issue prior to the Closing or the
termination of this Agreement any capital stock.
SECTION
5.02 Brand
Name Usage.
The
Seller hereby grants the Buyer the right to use the name “General Components”
(the “Brand
Name”)
in its
ordinary course of business. The Seller acknowledges that it intends to change
its corporate name as soon as practically feasible, but until such time as
the
name change is effected, the Seller may use the Brand Name solely as its
corporate name. Notwithstanding the foregoing, the Seller agrees that it will
not use the Brand Name on any of its products or services.
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SECTION
5.03 Non-Solicitation;
Confidentiality; Cooperation.
Until
the Closing or termination of this Agreement,
(a)
the
Seller will not transfer any of the Shares, or any interest therein, or engage
in any discussion either directly or indirectly with any third party with regard
thereto, other than as necessary for consummating the transactions contemplated
by this Agreement;
(b) none
of
the Seller or Buyer will disclose, and Seller will cause the Company to not
disclose, the existence of this Agreement, or the subject matter thereof, other
than as necessary for consummating the transactions contemplated by this
Agreement or as required by applicable law, rule, regulation, regulatory inquiry
or other judicial process;
(c) Seller
will cooperate and cause the Company and its professionals to cooperate with
Buyer to facilitate Buyer’s legal, financial, and operational due diligence of
the Company; and
(d) Each
of
the parties shall use reasonable efforts to cause the satisfaction of the
conditions to the obligation of the other parties to consummate the transactions
contemplated by this Agreement and otherwise to cause the Closing to occur,
including in making all required filings with or obtaining any approval from
all
required Government Authorities and notices to or obtaining required consents
of
other third parties.
ARTICLE
VI
CONDITIONS
TO CLOSING
SECTION
6.01 Conditions
to Obligations of the Seller.
The
obligations of the Seller to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing,
of
each of the following conditions:
(a) Representations,
Warranties and Covenants.
The
representations and warranties of the Buyer contained in this Agreement shall
have been true and correct when made and shall be true and correct in all
material respects as of the Closing, with the same force and effect as if made
as of the Closing Date; the Buyer shall have performed all obligations under
this Agreement required to be performed by it as of the Closing; and the Seller
shall have received a certificate from the Buyer to such effect signed by a
duly
authorized officer thereof;
(b) No
Proceeding or Litigation.
No
Action. shall have been commenced by or before any Governmental Authority
against any Seller, the Company, or the Buyer, seeking to restrain or materially
and adversely alter the transactions contemplated by this Agreement that, in
the
reasonable, good faith determination of the Seller, is likely to render it
impossible or unlawful to consummate such transactions.
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(c) Resolutions.
The
Seller shall have received a true and complete copy, certified by the Secretary
or an Assistant Secretary of the Buyer, of the resolutions duly and validly
adopted by the Board of Directors of the Buyer evidencing its authorization
of
the execution, delivery, and performance of this Agreement.
SECTION
6.02 Conditions
to Obligations of the Buyer.
The
obligations of the Buyer to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing,
of
each of the following conditions:
(a) Representations,
Warranties, and Covenants.
The
representations and warranties of the Seller contained in this Agreement shall
have been true and correct when made and shall be true and correct as of the
Closing with the same force and effect as if made as of the Closing; the Seller
and the Company shall have performed all obligations under this Agreement
required to be performed by it as of the Closing; and the Buyer shall have
received a certificate of the Seller and the Company to such effect signed
by a
duly authorized officer thereof.
(b) No
Proceeding or Litigation.
No
Action shall have been commenced or threatened by or before any Governmental
Authority against any Seller, the Company, or the Buyer, seeking to restrain
or
materially and adversely alter the transactions contemplated hereby which the
Buyer believes, in its reasonable, good faith determination, is likely to render
it impossible or unlawful to consummate the transactions contemplated by this
Agreement or that could have a Material Adverse Effect.
(c) Resolutions
of the Seller.
The
Buyer shall have received a true and complete copy, certified by the Secretary
or an Assistant Secretary of the Seller, of the resolutions duly and validly
adopted by the Board of Directors of such Seller evidencing its authorization
of
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby;
(d) Consents
and Approvals.
The
Buyer, the Company, and the Seller shall have received or made, each in form
and
substance satisfactory to the Buyer in its reasonable, good faith determination
all required filings and approvals from all Government Authorities and notices
to or required consents of any other third parties that the Buyer shall deem
appropriate for the consummation of the transactions contemplated by this
Agreement.
(e) Resignations.
The
Buyer shall have received the resignations, effective as of the Closing, of
all
the directors and officers of the Company, except for such persons as Buyer
shall have designated, and such persons as Buyer shall have designated shall
have been elected as directors and officers of the Company, to be effective
as
of the Closing.
9
(f) Organizational
Documents.
The
Buyer shall have received a copy of (i) the Memorandum and Articles of
Association, as amended (or similar organizational documents), of the Company
and accompanied by a certificate of the Secretary or Assistant Secretary of
such
entity, dated as of the Closing Date, stating that no amendments have been
made
to such Memorandum and Articles of Association (or similar organizational
documents) since such date, and (ii) the Bye-laws (or similar organizational
documents) of the Company, certified by the Secretary or Assistant Secretary
of
such entity;
(g) Minute
Books.
The
Buyer shall have received a copy of the minute books and stock register of
the
Company, certified by a Secretary or Assistant Secretary of the Company as
of
the Closing Date;
(h) Good
Standing; Qualification to Do Business.
The
Company shall use its reasonable best efforts to obtain good standing
certificates for the Company from the responsible official of the jurisdiction
in which such entity is incorporated or organized and from the responsible
official in each other jurisdiction in which the properties owned or leased
by
the Company, or the operation of its business in such jurisdiction, requires
the
Company to qualify to do business as a foreign corporation, in each case dated
not more than 30 days after the Closing Date.
SECTION
6.03 No
Material Adverse Effect.
No
event or events shall have occurred, or be reasonably likely to occur, which,
individually or in the aggregate, have, or could have, a Material Adverse
Effect.
ARTICLE
VII
NO
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
SECTION
7.01 No
Survival.
The
representations and warranties of the parties contained in this Agreement shall
not survive the Closing.
SECTION
7.02 Shares
Sold “As Is”.
THE
COMPANY IS BEING SOLD TO THE BUYER ON AN “AS IS” BASIS. ACCORDINGLY, THE BUYER
HAS SATISFIED ITSELF AS TO THE BUSINESS AND OPERATIONS OF THE COMPANY AND HEREBY
WAIVES AND FORGOES ANY AND ALL CLAIMS AGAINST THE SELLER RELATING TO THE SUBJECT
MATTER HEREOF.
ARTICLE
VIII
TERMINATION
AND WAIVER
SECTION
8.01 Termination.
Without
limiting any other remedy available to any party, this Agreement may be
terminated at any time prior to the Closing:
(a) by
the
Buyer, if there shall be or have been any breach of any representation,
warranty, or covenant made in this Agreement by any Seller or any condition
in
Section 6.02 shall not have been satisfied as of the Closing;
10
(b) by
the
Seller if there shall be or have been any breach of any representation,
warranty, or covenant made in this Agreement by the Buyer or any condition
in
Section 6.01 shall not have been satisfied as of the Closing;
(c) by
either
party not at fault, if the Closing shall not have occurred by December 31,
2006.
SECTION
8.02 Effect
of Termination.
If this
Agreement is terminated, no party will have any liability or further obligation
to any other party to the Agreement, except for any liability arising out of
any
knowing, willful or fraudulent breach of this Agreement prior to such
termination.
ARTICLE
IX
GENERAL
PROVISIONS
SECTION
9.01 Expenses.
Except
as otherwise specified in this Agreement, all costs and expenses, including,
without limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
SECTION
9.02 Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by courier service, by cable,
by telecopy, by telegram, by telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 10.02) :
(a) if
to the
Seller:
Xxxxx
0000, Xxxx Xxxxx
Xxxxxxxx
Xxx
Xxxx
Xxxx
with
a
copy to:
Loeb
& Loeb, LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax:000-000-0000
Attention:
Xxxxxxxx Xxxxxxxx, Esq.
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(b) if
to the
Buyer:
General
Components International Ltd.
Xxxxx
0000, 00/X, Xxx Xxxxxxx Xxxxx
00
Xxxxxxxxx
Xxxx
Xxxx
Attention:
LI Ji, Director
SECTION
9.03 Public
Announcements.
No
party to this Agreement shall make, or cause to be made, any press release
or
public announcement in respect of this Agreement or the transactions
contemplated hereby or otherwise communicate with any news media without the
prior written consent of the other party, and the parties shall cooperate as
to
the timing and contents of any such press release or public announcement.
SECTION
9.04 Headings.
The
descriptive headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation
of
this Agreement.
SECTION
9.05 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any Law or public policy, all other terms and provisions
of
this Agreement shall nevertheless remain in full force and effect so long as
the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.
SECTION
9.06 Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof and thereof and supersede all prior agreements and
undertakings, both written and oral, between the Seller and the Buyer with
respect to the subject matter hereof and thereof.
SECTION
9.07 Assignment.
This
Agreement may not be assigned by operation of law or otherwise without the
express written consent of the Seller and the Buyer (which consent may be
granted or withheld in the sole discretion of the Seller or the Buyer);
provided, however, that the Buyer may assign this Agreement to an Affiliate
of
the Buyer without the consent of the Seller provided that any such assignee
shall become a party to this Agreement and make the representations of the
Buyer
contained herein on or prior to the effective date of such
assignment.
SECTION
9.08 No
Third Party Beneficiaries.
This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their permitted assigns and nothing herein, express or implied,
is
intended to or shall confer upon any other Person any legal or equitable right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
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SECTION
9.09 Amendment.
This
Agreement may not be amended or modified except by an instrument in writing
signed by, or on behalf of the parties hereto.
SECTION
9.10 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York applicable to contracts negotiated, executed, and to
be
performed entirely in that state by residents thereof.
SECTION
9.11 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
SECTION
9.12 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or equity.
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IN
WITNESS WHEREOF, the Seller and the Buyer have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
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