Exhibit 1.2
[CONFORMED COPY]
STOCK PURCHASE AGREEMENT dated as of
April 30, 1997, among HONG XXXXX STRATEGIC
HOLDINGS LIMITED, a Bermuda exempted
company ("Seller"), HARVEST E-XPRESS, a
Nevada corporation ("Buyer"), XXXXXXXX
CAPITAL, INC., a Nevada corporation
("XxXxxxxx"), XXX XXXXXXX ("Xxxxxxx"), and
XXXXX X. XXXXXXX ("Nemelka" and, together
with XxXxxxxx and Xxxxxxx, the
"Principals").
Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, all the issued and outstanding shares, par value $0.001
per share (the "HLS Shares"), of HLS Corporation Limited, a Bermuda
exempted company and wholly owned subsidiary of Seller (the "Company").
Accordingly, Seller, Buyer, XxXxxxxx, Nemelka and Xxxxxxx
hereby agree as follows:
SECTION 1. Purchase and Sale of the Shares. On the terms and
subject to the conditions of this Agreement, at the Closing (as defined
in Section 2) Seller shall sell, transfer and deliver to Buyer, and
Buyer shall purchase from Seller, the HLS Shares for an aggregate
consideration consisting of (a) 590,000 shares (the "Buyer A Shares") of
the Class A common stock, $0.001 par value per share, of Buyer ("Buyer
Class A Stock") and (b) 29,010,000 shares (the "Buyer B Shares" and,
together with the Buyer A Shares, the "Buyer Shares") of the Class B
common stock, $0.001 par value per share, of Buyer ("Buyer Class B
Stock") payable as set forth below in Section 2.
SECTION 2. Closing. The closing (the "Closing") of the
purchase and sale of the HLS Shares shall be held at the offices of
Cravath, Swaine & Xxxxx, Worldwide Plaza, 825 Eighth Avenue, New York,
New York, at 10:00 a.m. on April 23, 1997, or, if the conditions to the
Closing set forth in Section 3 shall not have been satisfied by such
date, as soon as practicable after such conditions shall have been
satisfied. The date on which the Closing shall occur is hereinafter
referred to as the "Closing Date". At the Closing, (i) Buyer shall
deliver or cause to be delivered to Seller certificates, registered in
the name of Seller, representing the Buyer Shares and (ii) Seller shall
deliver or cause to be delivered to Buyer certificates representing the
HLS Shares, duly endorsed or accompanied by stock powers duly endorsed
in proper form for transfer, with appropriate transfer stamps, if any,
affixed.
SECTION 3. Conditions to Closing. (a) Buyer's Obligation. The
obligation of Buyer to purchase and pay for the HLS Shares is subject to
the satisfaction (or waiver by Buyer) as of the Closing of the following
conditions:
(i) The representations and warranties of Seller made in this
Agreement shall be true and correct in all material respects on and
as of such time. Seller shall have performed or complied in all
material respects with all obligations and covenants required by
this Agreement to be performed or complied with by Seller by the
time of the Closing. Seller shall have delivered to Buyer a
certificate dated the Closing Date and signed by an authorized
officer of Seller confirming the foregoing.
(ii) The stockholders of Buyer shall have approved an
amendment and restatement of the Articles of Incorporation of Buyer
in the form of Exhibit A (the "Charter Amendment"); and the Charter
Amendment shall become effective.
(iii) No statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or
other order entered, promulgated or issued by any Federal, state or
local government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority
or instrumentality (a "Governmental Entity") preventing the
purchase and sale of the HLS Shares shall be in effect.
(iv) Seller shall have received all approvals from the Bermuda
Monetary Authority necessary to consummate the transactions
contemplated hereby.
(b) Seller's Obligation. The obligation of Seller to sell and
deliver the HLS Shares to Buyer is subject to the satisfaction (or
waiver by Seller) as of the Closing of the following conditions:
(i) The representations and warranties of Buyer and each of
the Principals made in this Agreement shall be true and correct in
all material respects on and as of the time of the Closing as
though made as of such time. Buyer and each of the Principals shall
have performed or complied in all material respects with all
obligations and covenants required by this Agreement to be
performed or complied with by Buyer or such Principal as the case
may be, by the time of the Closing. Buyer and each of the
Principals shall have
delivered to Seller a certificate dated the Closing Date and
signed, in the case of Buyer and XxXxxxxx, by an authorized officer
of Buyer and XxXxxxxx, respectively, and, in the case of Xxxxxxx
and Nemelka, by Xxxxxxx and Xxxxxxx, respectively, confirming the
foregoing.
(ii) The stockholders of Buyer shall have approved the Charter
Amendment, and the Charter Amendment shall have become effective.
(iii) No statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or
other order entered, promulgated or issued by any Governmental
Entity preventing the purchase and sale of the HLS Shares shall be
in effect.
(iv) The stockholders of Buyer shall include at least 300
persons not affiliates or associates of, or employed by, Buyer or
any of its affiliates and associates; and each of such 300 persons
shall own beneficially and of record at least 100 shares of Buyer
Class A Stock; and Seller shall have received a certificate, signed
by Xxxxxxx, to the effect of the foregoing.
(v) Seller shall have received a reliance letter, in the form
of Exhibit B, from Xxxxxxxxx, Xxxxx & Xxxxx, P.C., with respect to
the audited financial statements included in the Buyer's Annual
Report on Form 10-KSB for the year ended December 31, 1996 (the
"1996 Form 10-KSB").
(vi) Seller shall have received all approvals from the Bermuda
Monetary Authority necessary to consummate the transactions
contemplated hereby.
(vii) In the event XxXxxxxx shall have made any transfers of
any shares of Buyer Class A Stock pursuant to Section 8(c), Seller
shall have received (A) a certificate of XxXxxxxx dated the Closing
Date identifying each such transferee, including the number of
shares transferred, and confirming that they have advised each such
transferee that such shares of Buyer Class A Stock are "restricted
securities" under the Securities Act of 1933, as amended (the
"Securities Act") and (B) an agreement from each such transferee
complying with the requirements of Section 8(c).
SECTION 4. Representations and Warranties of Seller. Seller
hereby represents and warrants to Buyer as follows:
(a) Authority. Seller is an exempted company validly existing
under the laws of Bermuda. Seller has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. All
corporate acts and other proceedings required to be taken by Seller to
authorize the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly
and properly taken. This Agreement has been duly executed and delivered
by Seller and constitutes a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.
(b) No Conflicts; Consents. The execution and delivery of this
Agreement by Seller do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancelation or acceleration of any obligation or to loss of
a material benefit under, or result in the creation of any lien, claim,
encumbrance of any kind upon any of the properties or assets of the
Company under, any provision of (i) the constitutive documents of
Seller, (ii) any material agreement or obligation to which Seller or the
Company is a party or by which any of their respective assets are bound
or (iii) any judgment, order or decree, or material statute, law,
ordinance, rule or regulation applicable to Seller or the Company or
their respective assets, other than such as in the aggregate would not
have a material adverse effect on the business, financial condition or
results of operations of the Company (a "Material Adverse Effect"). No
material consent, approval, license, permit, order or authorization of,
or registration, declaration or filing with, any Governmental Entity is
required to be obtained or made by or with respect to Seller or the
Company in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated
hereby, other than (A) compliance with and filings under Bermuda law, if
applicable, and (B) those that may be required solely by reason of
Buyer's participation in the transactions contemplated hereby.
(c) The HLS Shares. Seller has good and valid title to the HLS
Shares, free and clear of any liens, claims or encumbrances of any kind.
Assuming Buyer has the requisite power and authority to be the lawful
owner of the
HLS Shares, upon delivery to Buyer at the Closing of certificates
representing the HLS Shares, duly endorsed by Seller, and upon Seller's
receipt of the Consideration, (i) good and valid title to the HLS Shares
will pass to Buyer, free and clear of any liens, claims or encumbrances
of any kind, other than those arising from acts of Buyer or its
affiliates and (ii) Buyer will be entitled to registration on the
Company's register of members as the owner of the HLS Shares.
(d) Organization and Standing; Books and Records. The Company
is an exempted company validly existing under the laws of Bermuda. The
Company has full corporate power and authority and possesses all
governmental franchises, licenses, permits, authorizations and approvals
necessary to enable it to own, lease or otherwise hold its assets and to
carry on its business as presently conducted, other than such the lack
of which would not have a Material Adverse Effect.
(e) Capital Stock of the Company. The authorized capital stock
of the Company consists of 50,000,000 Class A Common Shares, par value
$0.001 per share (the "HLS A Shares"), and 5,000,000 Class B Common
Shares, par value $0.001 per share (the "HLS B Shares"), of which
25,000,000 HLS A Shares and 5,000,000 HLS B Shares (which together
constitute the HLS Shares), are duly authorized and validly issued and
outstanding, fully paid and nonassessable. Seller is the record and
beneficial owner of the HLS Shares. Except for the HLS Shares, there are
no shares or other equity securities of the Company outstanding. The HLS
Shares are not subject to any purchase option, call, right of first
refusal, preemptive or similar rights under any provision of applicable
law, the Memorandum of Association and Bye-laws of the Company, any
contract, agreement or instrument to which the Company is subject or
bound.
(f) Assets of the Company. (1) The only material asset of the
Company is approximately 90% of the outstanding capital stock of XX-XX
Company Pte. Ltd. ("XX- XX"), a Singapore corporation, and certain
ancillary rights relating thereto. The only material liabilities of the
Company relate to its ownership of XX-XX.
(2) The only material assets of XX-XX are 100% of the
outstanding capital stock of HN-SIN Electric Pte Ltd and Hong Xxxxx
Electric Pte Ltd. (collectively, the "XX-XX Subsidiaries"), Singapore
corporations. The only material liabilities of XX-XX relate to its
ownership of the XX-XX Subsidiaries.
(3) The only material asset of the XX-XX Subsidiaries is a
collective ownership interest of approximately 51% in Henan Xinfei
Electric Co. Ltd. ("Xinfei"), a Sino-foreign equity joint venture, and
certain ancillary rights relating thereto. The only material liabilities
of the XX-XX Subsidiaries relate to their respective ownership interests
in Xinfei.
(4) Attached as Exhibit C is a recent unaudited balance sheet
and an audited balance sheet for the year ended December 31, 1995 for
Xinfei.
(g) Liquidity. Seller is entering into the transactions
contemplated hereby with the intention of using its best efforts to
establish over the next 90 days and thereafter develop a trading market
in the United States for the Buyer Class A Stock (or any successor
security). No assurances can be given that such a market will develop.
SECTION 5. Covenants of Seller. Seller shall not, and shall
not permit the Company to, take any action that would result in any of
the conditions to the purchase and sale of the HLS Shares set forth in
Section 3(a) not being satisfied.
SECTION 6. Representations and Warranties Relating to Buyer.
The Principals jointly and severally represent and warrant to Seller as
follows:
(a) Authority; Books and Records. Buyer is a corporation
validly existing under the laws of the State of Nevada. Buyer has all
requisite corporate power and authority to enter into this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. All corporate acts and other proceedings required
to be taken by Buyer to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and properly taken. This Agreement
has been duly executed and delivered by Buyer and constitutes a legal,
valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms. Buyer has prior to the execution of this
Agreement delivered to Seller true and complete copies of the Articles
of Incorporation and By- laws, each as amended to date, of Buyer. The
stock certificate and transfer books and the minute books of Buyer
(which have been made available for inspection by Seller prior to the
date hereof) are true and complete.
(b) No Conflicts; Consents. The execution and delivery of this
Agreement do not, and the consummation of
the transactions contemplated hereby and compliance with the terms
hereof shall not, conflict with, or result in any violation of or
default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancelation or acceleration of any
obligation or to loss of a material benefit under, or result in the
creation of any lien, claim or encumbrance of any kind upon any of the
assets of Buyer or any subsidiary of Buyer under, any provision of (i)
the Articles of Incorporation or By- laws of Buyer, (ii) any material
agreement or obligation to which Buyer is a party or by which any of
Buyer's assets are bound, or (iii) any judgment, order, or decree, or
material statute, law, ordinance, rule or regulation applicable to Buyer
or Buyer's assets. No material consent, approval, license, permit, order
or authorization of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained or made by or with
respect to Buyer or Buyer's affiliates in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than (A) compliance with and
filings under Bermuda law, if applicable, (B) filings under Section 13
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and (C) those that may be required solely by reason of Seller's
participation in the transactions contemplated hereby.
(c) Capital Stock of Buyer. On the date of this Agreement, the
authorized capital stock of Buyer consists of (i) 50,000,000 shares of
Common Stock, par value $0.001 per share, of which 200,000 are duly
authorized and validly issued and outstanding, fully paid and
nonassessable. On the Closing Date, after giving effect to the Charter
Amendment, the authorized capital stock of Buyer will consist of (i)
30,000,000 shares of Buyer Class A Stock, of which 400,000 (which
400,000 shares includes the 200,000 shares issued pursuant to Section
6(f)) will be duly authorized and validly issued and outstanding, fully
paid and nonassessable and (ii) 30,000,000 shares of Buyer Class B
Stock, of which none will be outstanding. On the Closing Date, Buyer
will also have outstanding warrants (the "Warrants") in the form of
Exhibit D to purchase 200,000 shares of Buyer Class A Stock. There are
no commitments (other than this Agreement and the Warrants) pursuant to
which Buyer is or may become obligated to issue any shares of capital
stock or other securities of Buyer.
(d) Equity Interests. Buyer does not directly or indirectly
own any capital stock of or other equity interests in any corporation,
partnership or other person and Buyer is not a member of or participant
in any partnership, joint venture or similar person.
(e) Financial Statements. (1) Buyer has filed all required
reports, schedules, forms, statements and other documents with the
Securities and Exchange Commission (the "SEC") since its formation (the
"SEC Documents"). As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules
and regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Except to the extent that information contained in any SEC Document has
been revised or superseded by a later filed SEC Document, none of the
SEC Documents contains any untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of
Buyer included in the SEC Documents comply as to form in all material
respects with applicable accounting requirements and the published rules
and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles (except, in the
case of unaudited statements, as permitted by Form 10-QSB of the SEC)
applied on a consistent basis during the periods involved (except as may
be indicated in the notes thereto) and fairly present the consolidated
financial position of Buyer and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments). Buyer does not have
any securities registered under Section 12 of the Exchange Act. The
balance sheet included in the 1996 Form 10-KSB is referred to herein as
the "Buyer Balance Sheet".
(2) Buyer does not have any liabilities or obligations, except
(A) as disclosed, reflected or reserved against in the Buyer Balance
Sheet and (B) liabilities or obligations under, or specifically referred
to in, this Agreement.
(3) Buyer does not have any assets, except (A) as disclosed in
the Buyer Balance Sheet, (B) corporate books and records, (C) cash and
(D) rights under this Agreement.
(f) Fees and Expenses. In connection with the transactions
contemplated by this Agreement, XxXxxxxx will
be entitled to purchase 200,000 shares of Buyer Class A Stock and
Warrants covering an additional 200,000 shares of Buyer Class A Stock,
all for aggregate cash consideration of $20,000 as compensation for
services rendered to Buyer. Such compensation has been unanimously
approved by all the directors of Buyer, and will be issued prior to the
Closing. Other than as aforesaid, all fees and expenses incurred by
Buyer, including, without limitation, any finders fees due to any party
(including Xxxxxx Xxxxxx or any firm with which he may be affiliated) in
connection with the transactions contemplated hereby will be paid by
XxXxxxxx.
(g) Absence of Earnings and Profits. Buyer does not have any
"earnings and profits" as such term is interpreted for purposes of
Section 316(a) of the Internal Revenue Code of 1986, as amended.
SECTION 7. Covenants of Buyer and the Principals. (a) No
Additional Representations. Buyer and each Principal acknowledges and
agrees that none of Seller, the Company or any other person has made any
representation or warranty, expressed or implied, with respect to the
transactions contemplated hereby, the Company or its assets, liabilities
and business, the accuracy or completeness of any information regarding
the Company furnished or made available to Buyer and its representatives
(including each Principal), except as expressly set forth in this
Agreement.
(b) Access. Prior to the Closing, Buyer shall give Seller and
its representatives reasonable access, during normal business hours and
upon reasonable notice, to the personnel, properties, books and records
of Buyer.
(c) Ordinary Conduct. Except as expressly permitted by the
terms of this Agreement, from the date hereof to the Closing, Buyer
shall conduct its business, and each Principal shall cause Buyer to
conduct its business, in the ordinary course in substantially the same
manner as presently conducted. Buyer shall not, and each Principal shall
not permit Buyer to, take any action that would result in any of the
conditions to the transactions contemplated by this Agreement set forth
in Section 3(b) not being satisfied. In addition, except as otherwise
permitted by the terms of this Agreement, Buyer shall not, and each
Principal shall not permit Buyer to, do any of the following without the
prior written consent of Seller:
(i) amend its Articles of Incorporation or By- laws;
(ii) declare or pay any dividend or make any other
distribution to its stockholders whether or not upon or in respect
of any shares of its capital stock;
(iii) issue, redeem or otherwise acquire any shares of its
capital stock;
(iv) incur any liabilities or increase any liability in
existence on the Closing Date;
(v) acquire or dispose of any asset;
(vi) make or incur any capital expenditure; or
(vii) agree, whether in writing or otherwise, to do any of the
foregoing.
(d) Resignations. On the Closing Date, Buyer shall (i) cause
to be delivered to Seller duly signed resignations, effective
immediately after the Closing, of all directors and officers of Buyer
and (ii) cause to be appointed as directors of Buyer two nominees of
Seller.
(e) The Buyer Shares. On the Closing Date, the Buyer Shares
will have been duly and validly authorized and issued and be fully paid
and nonassessable. The Buyer Shares will not be subject to any purchase
option, call, right of first refusal, preemptive or similar rights under
any provision of applicable law, the Articles of Incorporation or
By-laws of Buyer, or any contract, agreement or instrument to which
Buyer is subject or bound.
(f) Seller Commitments. Buyer and each Principal acknowledges
that, other than the representation set forth in Section 4(g), Seller
has made no representations and given no assurance as to any actions
that may or may not be taken by it or by Buyer following the Closing.
Neither Buyer nor any of the Principals is entering into the
transactions contemplated hereby, or (in the case of the Principals)
voting as stockholders of Buyer with respect thereto, in reliance on any
disclosed, undisclosed or expected plans of Seller, other than the
representation set forth in Section 4(g), for the future of Buyer or
with respect to its capital stock. Buyer and each Principal acknowledges
that (i) Seller shall be completely free to take such actions as a
stockholder of Buyer as Seller considers to be in its interests and (ii)
any designees of Seller on the Board of Directors of Buyer shall be
completely free to take such actions as they consider to be in the best
interests of Buyer, including, without limitation, additional
acquisitions by Buyer or the Company,
issuance of securities by Buyer or the Company, issuance of additional
shares of Buyer Class A Stock on a one-for-one basis in exchange for
shares of Buyer Class B Stock, a merger, consolidation, reorganization,
liquidation or dissolution of Buyer or any other form of extraordinary
transaction.
SECTION 8. Additional Obligations of XxXxxxxx and Xxxxxxx. (a)
Representations and Warranties. XxXxxxxx and Nemelka, jointly and
severally, represent and warrant to Seller as follows: (i) XxXxxxxx is a
corporation validly existing under the laws of the State of Nevada; (ii)
XxXxxxxx has all requisite corporate power and authority to enter into
this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby; (iii) all corporate acts and other
proceedings required to be taken by XxXxxxxx to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby have been duly and properly taken; (iv)
this Agreement has been duly executed and delivered by XxXxxxxx and
Nemelka and constitutes a legal, valid and binding obligation of
XxXxxxxx and Xxxxxxx, enforceable against XxXxxxxx and Nemelka in
accordance with its terms and (v) Nemelka and XxXxxxxx beneficially own
within the meaning of Rule 13d-3 under the Exchange Act, 32,500 shares
of common stock of Buyer plus the Warrants plus the shares referred to
in Section 6(f).
(b) Voting. Each of XxXxxxxx and Nemelka shall vote or cause
to be voted all shares of capital stock of Buyer owned beneficially or
of record by them in favor of the transactions contemplated hereby.
(c) Transfers. From the date hereof, and for three months
following the Closing Date, neither Nemelka nor XxXxxxxx shall sell,
transfer or otherwise dispose of any shares of Buyer Class A Stock or
any Warrants; provided, however, that the foregoing shall not prevent
XxXxxxxx from transferring shares of Buyer Class A Stock on the Closing
Date to fewer than 15 transferees. XxXxxxxx shall notify in writing
each transferee of Buyer Class A Stock under the proviso to the
preceding sentence that such Buyer Class A Stock is "restricted" within
the meaning of Rule 144 under the Securities Act, and obtain from each
such transferee a written agreement in form satisfactory to Seller not
to transfer any such Buyer Class A Stock for three months following the
Closing Date and, following such date, not to transfer any such Buyer
Class A Stock in violation of the registration requirements of the
Securities Act.
(d) Securities Laws Matters. XxXxxxxx (i) acknowledges that
the Warrants, the shares of Buyer Class A Stock referred to in Section
6(f) and the shares underlying the Warrants have not been registered
under the Securities Act and (ii) agrees not to offer for sale or sell
any such securities in violation of the registration requirements of the
Securities Act.
SECTION 9. Additional Obligations of Xxxxxxx. (a)
Representations and Warranties. Xxxxxxx represents and warrants to
Seller as follows: (i) this Agreement has been duly executed and
delivered by Xxxxxxx and constitutes a legal, valid and binding
obligation of Xxxxxxx, enforceable against Xxxxxxx in accordance with
its terms and (ii) Xxxxxxx beneficially owns, within the meaning of Rule
13d-3 under the Exchange Act, 97,200 shares of common stock of Buyer.
(b) Voting. Xxxxxxx shall vote or cause to be voted all shares
of capital stock of Buyer owned beneficially or of record by him or any
member of his immediate family to be voted in favor of the transactions
contemplated hereby.
(c) Transfers. For three months following the Closing Date,
Xxxxxxx shall not sell, transfer or otherwise dispose of any shares of
Buyer Class A Stock.
SECTION 10. Mutual Covenants. Each party covenants and agrees
as follows:
(a) Publicity. Seller and Buyer agree that, from the date
hereof through the Closing Date, no public release or announcement
concerning the transactions contemplated hereby shall be issued by
either party without the prior consent of the other party (which consent
shall not be unreasonably withheld).
(b) Best Efforts. Each party shall use its best efforts to
cause the Closing to occur.
(c) Records. On the Closing Date, Buyer shall deliver or cause
to be delivered to Seller all material agreements, documents, books,
records and files (collectively, "Records"), if any, in the possession
of Buyer relating to the business and operations of Buyer to the extent
not then in the possession of Seller.
SECTION 11. Further Assurances. After the Closing, from time
to time, as and when requested by either party hereto, the other party
shall execute and deliver, or
cause to be executed and delivered, all such documents and instruments
and shall take, or cause to be taken, all such further or other actions,
as such other party may reasonably deem necessary or desirable to
consummate the transactions contemplated by this Agreement.
SECTION 12. Indemnification. (a) Indemnifica tion Constitutes
Exclusive Remedy. Each party acknowledges that, should the Closing
occur, such party shall not have any rights or remedies, other than as
expressly set forth in this Section 12, against any other party in
connection with the transactions contemplated hereby. In furtherance of
the foregoing, each party hereby waives, from and after the Closing, to
the fullest extent permitted under applicable law, any and all rights,
claims and causes of action, other than as expressly set forth in this
Section 12, such party may have against any other party and its
affiliates arising under or based upon any Federal, state, local or
foreign statute, law, ordinance, rule or regulation or otherwise.
(b) Indemnification by the Principals. From and after the
Closing, each Principal shall indemnify Seller, the Company, Buyer, each
of their affiliates and each of their respective officers, directors,
employees, stockholders, agents and representatives against and hold
them harmless from any loss, liability, claim, damage or expense
(including reasonable legal fees and expenses) suffered or incurred by
any such indemnified party to the extent arising from (i) any breach of
any representation or warranty by such Principal contained in this
Agreement, (ii) any breach of any covenant of such Principal contained
in this Agreement or (iii) all obligations and liabilities of whatever
kind and nature, primary or secondary, direct or indirect, absolute or
contingent, known or unknown, whether or not accrued, of Buyer that
arises out of the operations or existence of Buyer prior to the Closing
Date (other than those listed in Section 6(e)(2)).
(c) Indemnification by Seller. From and after the Closing,
Seller shall indemnify each Principal, each of their affiliates and each
of their respective officers, directors, employees, stockholders, agents
and representatives against and hold them harmless from any loss,
liability, claim, damage or expense (including reasonable legal fees and
expenses) suffered or incurred by any such indemnified party to the
extent arising from (i) any breach of any representation or warranty by
Seller contained in this Agreement or (ii) any breach of any covenant of
Seller contained in this Agreement.
SECTION 13. Assignment. This Agreement and the rights and
obligations hereunder shall not be assignable or transferable by any
party (including by operation of law in connection with a merger, or
sale of substantially all the assets, of Buyer or Seller) without the
prior written consent of each other party hereto. No assignment shall
limit or affect the assignor's obligations hereunder. Any attempted
assignment in violation of this Section 13 shall be void.
SECTION 14. No Third-Party Beneficiaries. Except as provided
in Section 12, this Agreement is for the sole benefit of the parties
hereto and their permitted assigns and nothing herein expressed or
implied shall give or be construed to give to any person, other than the
parties hereto and such assigns, any legal or equitable rights
hereunder.
SECTION 15. Termination. (a) Anything contained herein to the
contrary notwithstanding, this Agreement may be terminated and the
transactions contemplated hereby abandoned at any time prior to the
Closing Date:
(i) by mutual written consent of Seller and Buyer;
(ii) by Seller if any of the conditions set forth in Section
3(b) shall have become incapable of fulfillment, and shall not have
been waived by Seller;
(iii) by Buyer if any of the conditions set forth in Section
3(a) shall have become incapable of fulfillment, and shall not have
been waived by Buyer; or
(iv) by either party hereto, if the Closing does not occur on
or prior to May 2, 1997;
provided, however, that the party seeking termination pursuant to clause
(ii), (iii) or (iv) is not basing termination on any breach in any
material respect of any of its representations, warranties, covenants or
agreements contained in this Agreement.
(b) In the event of termination by Seller or Buyer pursuant to
this Section 15, written notice thereof shall forthwith be given to the
other party and the transactions contemplated by this Agreement shall be
terminated, without further action by either party. If the transactions
contemplated by this Agreement are terminated as provided herein Buyer
shall return all documents and other material received from Seller or
the Company relating
to the transactions contemplated hereby, whether so obtained before or
after the execution hereof, to Seller.
(c) If this Agreement is terminated and the transactions
contemplated hereby are abandoned as described in this Section 15, this
Agreement shall become void and of no further force or effect, except
for the provisions of (i) Section 17 relating to certain expenses, (ii)
Section 18 relating to attorney fees and expenses, (iii) Section 10(a)
relating to publicity and (iv) this Section 15. Nothing in this Section
15 shall be deemed to release either party from any liability for any
breach by such party of the terms and provisions of this Agreement or to
impair the right of either party to compel specific performance by the
other party of its obligations under this Agreement.
SECTION 16. Survival of Representations. The representations
and warranties in Section 4 and in any certificate delivered pursuant to
Section 3(a)(i) shall survive the Closing for purposes of Section 12(c)
and shall terminate at the close of business three years following the
Closing Date. The representations and warranties in Sections 6, 8 and 9
and in any certificate delivered pursuant to Section 3(b)(i) shall
survive the Closing for purposes of Section 12(b) and shall terminate at
the close of business three years following the Closing Date.
SECTION 17. Expenses. Whether or not the transactions
contemplated hereby are consummated, and except as otherwise
specifically provided in this Agreement, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs or expenses.
SECTION 18. Amendments. No amendment, modification or waiver
in respect of this Agreement shall be effective unless it shall be in
writing and signed by all parties hereto.
SECTION 19. Notices. All notices or other communications
required or permitted to be given hereunder shall be in writing and
shall be delivered by hand or sent by confirmed fax or sent, postage
prepaid, by certified or express mail or reputable overnight courier
service and shall be deemed given when so delivered by hand, confirmed
faxed, or if mailed, three days after mailing (one business day in the
case of express mail or overnight courier service), as follows:
(i) if to Buyer,
Harvest E-xpress
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Fax: 000-000-0000
Attention: Xxx Xxxxxxx
(ii) if to XxXxxxxx or Xxxxxxx,
XxXxxxxx Capital, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxx
(iii) if to Xxxxxxx,
Xxx Xxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
Fax: 000-000-0000
(iv) if to Seller,
Hong Xxxxx Strategic Holdings Limited
c/o Hong Xxxxx Strategic Holdings, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxx X. X. Xxxxx
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: 000-000-0000
Attention: Xxxxxxx Xxxx.
SECTION 20. Interpretation; Exhibits and Schedules; Certain
Definitions. (a) The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All Exhibits annexed hereto or
referred to herein are hereby incorporated in and made a part of this
Agreement as if set forth in full herein. Any capitalized terms used in
any Exhibit but not otherwise defined therein, shall have the meaning as
defined in this Agreement.
(b) For all purposes hereof:
(i) "affiliate" and "associate" have the respective meanings
given such terms in Rule 12b-2 promulgated under the Exchange Act;
(ii) "including" means including without limitation;
(iii) "knowledge" of Seller means the knowledge after due
inquiry of Xxxxx Xxxxx;
(iv) "knowledge" of Buyer means the knowledge after due
inquiry of Xxx Xxxxxxx and any other officer or director of Buyer;
and
(v) "person" means any individual, firm, corporation,
partnership, limited liability company, trust, joint venture,
Governmental Entity or other entity.
SECTION 21. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the
same agreement, and shall become effective when one or more such
counterparts have been signed by each of the parties and delivered to
each other party.
SECTION 22. Entire Agreement. This Agreement contains the
entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements
and understandings relating to such subject matter. None of the parties
shall be liable or bound to any other party in any manner by any
representations, warranties or covenants relating to such subject matter
except as specifically set forth herein.
SECTION 23. Severability. If any provision of this Agreement
(or any portion thereof) or the application of any such provision (or
any portion thereof) to any person or circumstance shall be held
invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof (or the remaining portion thereof) or the application
of such provision to any other persons or circumstances.
SECTION 24. Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New
York applicable to agreements made and to be performed entirely within
such State, without regard to the conflicts of law principles of such
State.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
HONG XXXXX STRATEGIC HOLDINGS
LIMITED,
by /s/ Kwek Xxxx Xxxx
-------------------------
Name: Kwek Xxxx Xxxx
Title: Director
HARVEST E-XPRESS,
by /s/ Xxx Xxxxxxx
-------------------------
Name: Xxx Xxxxxxx
Title: President
XXXXXXXX CAPITAL, INC.,
by /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
/s/ Xxx Xxxxxxx
-------------------------------
Xxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
