Item 6 (a) Exhibit (2)
Transfer Agreement and Agreement to Operate
Mandarin Fine Foods Co.
1. Introduction. This Agreement is made this 11th day of May,
2000, by and between China Premium Food Corporation, a corporation
organized under the laws of Delaware, with principal offices at 00000 XX
Xxxxxxx 0, Xxxxx Xxxx Xxxxx, Xxxxxxx 00000 (CHPF), Mandarin Fine Foods
Co., a Chinese registered limited liability company, with principal offices
at Xx. 000, 0XX Xxxxxxxx, Xxxxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx'x Xxxxxxxx of
China (Mandarin) and Mr. Xx Xxx Yun, an individual residing in Beijing,
People's Republic of China c/o Mandarin Fine Foods Co.(Li).
2. Considerations. The following facts and events have been duly
considered by the parties in entering into this Agreement:
2.1 Li presently holds and enjoys 100% of the equity in Mandarin, a
company that possesses a business license in China to distribute and
manufacture both imported and domestic products, among other things, food
products utilized by certain hotels and restaurants in the People's
Republic of China.
2.2. CHPF presently operates its own joint venture business in the
People's Republic of China, under the auspices of certain agreements with
Hangzhou Dairy Co., and has established a wholly owned subsidiary in the
Xxx Xxx Qiao "Free Trade Zone" in Shanghai, China for the purpose engaging
in an import, export and distribution business in China.
2.3. CHPF presently has 10,453,129 shares of its common stock and
1,871,154 of its preferred stock issued and outstanding. In addition, CHPF
has granted warrants to certain investors and stock options to certain key
personnel for an additional 10,163,533 shares of its common stock.
2.4. Li desires to assign and transfer the majority of his right
title and interest in Mandarin in exchange for cash and an equity position
in CHPF as set forth in this Agreement. The parties acknowledge and
recognize, however, that the complete transfer and assignment of equity in
Mandarin by Li will occur in stages, and that CHPF and Li will each hold
and enjoy less than 100% of Mandarin. The parties further acknowledge and
recognize that the joint ownership of the equity of Mandarin by Li and CHPF
will create a foreign investment joint venture under the applicable laws of
the People's Republic of China.
2.5. Mandarin presently has Registered Capital amounting to RMB
10,000,000. The parties to this Agreement agree and recognize that, with
the consummation of this Agreement, such Registered Capital will be owned
by Li and CHPF in the respective proportions as provided herein, and that
all of such Registered Capital will be contributed by Li and CHPF to a
resulting joint venture between Li and CHPF.
2.6. The legal status aforesaid joint venture as a Foreign
Investment Joint Venture Company, which will be created upon the transfer
of the equity in Mandarin held by Li to CHPF, is subject to approval by the
appropriate local governmental agencies or agencies of the People's
Republic of China.
2.7. While the parties to this Agreement anticipate approval of the
transfer and assignment provided herein by the appropriate local
governmental agency or agency of the People's Republic of China, as
appropriate, the parties are unsure of the time frame within which such
approval may occur.
2.8. Notwithstanding the foregoing, the parties desire to continue
to move forward with the transfer of operational control of Mandarin to
CHPF in accordance with the terms and conditions of this Agreement, during
the interim period subsequent to the execution of this Agreement and prior
to the approval of the transfer and assignment herein by the appropriate
local governmental agency or agency of the People's Republic of China, as
may be required.
2.9. The parties acknowledge and agree that, in order to achieve the
goals set forth herein, an interim restructure of the operational aspects
of Mandarin is necessary in addition to the transfer of equity and,
accordingly, agree as follows.
3. Basic Agreement. In consideration of the mutual promises
contained in this Agreement, the parties agree to the following:
3.1. Transfer and Assignment. Subject to and governed by the terms
and conditions of this Agreement, CHPF shall purchase the majority
interests of Li in and to the equity of Mandarin and Li shall transfer and
assign such equity interests to CHPF, as follows:
a. On the First Closing Date as provided in this Agreement, Li
shall transfer and assign 28.125% of the equity of Mandarin to CHPF;
b. Simultaneous with the transfer and assignment of 28.125% of the
equity of Mandarin to CHPF by Li on the First Closing Date, CHPF shall pay
US $2,250,000 to Li;
c. The transfer of 28.125% of Li's equity interest in Mandarin
shall be accompanied by a change in the recorded ownership interests of
Mandarin to reflect CHPF's acquired equity interest; such change in
Mandarin's ownership interests shall be filed in and with the appropriate
local governmental agency or agency of the People's Republic of China, as
may be required;
d. On the Second Closing Date as provided in this Agreement, Li
shall transfer and assign an additional 28.125% of the equity of Mandarin
to CHPF;
e. Simultaneous with the transfer and assignment of the additional
28.125% of the equity of Mandarin to CHPF by Li on the Second Closing Date,
CHPF shall, at the option of Li, either (i) direct its Stock Transfer Agent
to issue 1,285,714 shares of the common stock of CHPF to Li, or (ii) pay US
$2,250,000 to Li;
f. The transfer of the additional 28.125% of Li's equity interest
in Mandarin shall be accompanied by a change in the recorded ownership
interests of Mandarin to reflect CHPF's acquired equity interest; such
change in Mandarin's ownership interests shall be filed in and with the
appropriate local governmental agency or agency of the People's Republic of
China, as may be required.
3.2. Title Passing/Closing Dates. The transfer by Li of his equity
interests in Mandarin and the consideration paid by CHPF to Li for such
transfers on the First and Second Closing Dates shall be treated as and
deemed to be separate transactions (the "First Closing" and "Second
Closing" respectively), each governed by the terms and conditions of this
Agreement.
a. Upon each such equity transfer by Li to CHPF and the respective
payments of the purchase price by CHPF to Li on each Closing Date in
accordance with Paragraph 3.1 herein, each such transaction shall be deemed
closed and CHPF shall have title to and possession of Li's right, title and
interest in and to the percentage of equity of Mandarin so transferred.
b. The First Closing Date shall occur ten (10)days after written
notice by CHPF is given to Mandarin and Li but not later than June 30,
2000. The Second Closing Date shall occur ten (10)days after written notice
by CHPF is given to Mandarin and Li but not later than September 30, 2000.
3.3. Management. Upon the consummation of the Second Closing, CHPF
shall have the right to appoint a majority of the Board of Directors of
Mandarin and to name one of said directors Chairman; in addition, CHPF
shall have the right to appoint, as its representative, the General Manager
of the Mandarin joint venture company. Li and CHPF shall vote their
respective interests in Mandarin to establish a Board of Directors having
five members, with three members appointed by CHPF. Li and CHPF shall vote
their respective interests in Mandarin to create a comprehensive joint
venture contract which shall govern the rights and obligations of the
parties.
3.4 Agency Operating Agreement. Upon the consummation of the Second
Closing, Li, as Principal, appoints CHPF Principal's exclusive Agent for
the performance of all acts required of Principal, and in the name of
Principal, for the operation and management of the business, financial and
legal affairs Mandarin. Agent accepts the appointment.
a. The agency shall begin on the date of the consummation of the
Second Closing and continue until terminated in accordance with the
provisions of this Agreement.
b. In furtherance of the agency, Agent undertakes performance of
all duties and obligations of Principal under and pursuant to the
anticipated Mandarin joint venture contract, for the purpose of developing
manufacturing and distribution of food products in the People's Republic of
China.
c. As full remuneration for Agent's services, Agent shall be
entitled to any and all profit or other remuneration to which CHPF is
entitled under the Mandarin joint venture contract.
d. Unless earlier terminated by the mutual agreement of the
parties to this Agreement, the term of this Agreement shall be until the
transfer and assignment of Li's rights to 56.25% of the equity of Mandarin
and the creation of the resultant joint venture company is approved by the
appropriate local governmental agency or agency of the People's Republic of
China, as may be required, at which time the provisions of this Paragraph
3.4 shall terminate and be of no further force or effect. In the event that
such approval is not obtained, the parties hereto agree that the agency
created hereby shall continue to exist coterminous with the Mandarin joint
venture contract.
e. This Agreement is personal to both Principal and Agent, and
neither party can assign or delegate any rights or duties arising hereunder
to a third party, whether by contract, will, or operation of law, without
the prior written consent of the other party to this agreement; any
attempt to do so shall be void.
4. Ratification of Terms of Agreement/Contingencies/Option To Void
Agreement.
4.1. This Agreement, and each and every part hereof, is subject to
and conditioned upon the written approval, adoption and ratification of the
terms and conditions of this Agreement by the Board of Directors of CHPF
and the Board of Directors and Shareholders of Mandarin.
4.2. This Agreement shall terminate and be null and void, in the
event:
a. that the written approval, adoption and ratification of the
terms and conditions of this Agreement by the Board of Directors of CHPF
and the Board of Directors and Shareholders of Mandarin are not be
obtained; or
b. that Mandarin not obtain by the First Closing Date a new,
amended or supplemental business license to enable Mandarin to continue, as
a Foreign Investment Joint Venture Company, in the business of supplying,
distributing and manufacturing, among other things, food products in the
People's Republic of China; or
c. that CHPF not receive a satisfactory due diligence report with
respect to the business, legal, operational and financial affairs of
Mandarin, as determined in the reasonable business judgment and discretion
of CHPF.
4.3. Upon such termination, neither party to this Agreement shall
have any further rights or obligations under or pursuant to this Agreement,
nor shall Li have any claim or right to any equity or other interest to or
in CHPF, nor shall CHPF have any claim or right to any equity or other
interest to or in Mandarin. The waiver rights contained in the paragraph
upon such termination shall not apply to loans or other advances of monies
which, from time to time, may have been made to Mandarin or Li by CHPF in
connection with the transfer transaction anticipated by this Agreement.
5. Representations and Warranties of Mandarin and Li.
5.1. Mandarin has in all material respects complied with and is now
in all material respects in compliance with, all laws and regulations
applicable to Mandarin or the assets subject of this Agreement or the
operation of Mandarin's business, and no material capital expenditures will
be required in order to ensure continued compliance therewith. Except for
permits or other licenses already held by Mandarin, and the approval of the
transfer and assignment provided for herein, and the business license in
China to be obtained to enable Mandarin to continue, as a Foreign
Investment Joint Venture Company to distribute and manufacture both
imported and domestic products, among other things, food products in the
People's Republic of China. No other permit, license, order or approval of
any authority is material to or necessary for the conduct of Mandarin as a
joint venture business or CHPF's participation therein.
5.2. There are no pending or threatened or anticipated proceedings
by or before any authority which involve new special assessments, special
assessment districts, bonds, taxes, condemnation action, eminent domain
actions, laws or regulations or similar matters which, if instituted, could
reasonably be expected to have a material adverse effect upon the condition
(financial or otherwise), assets, liabilities, business or other prospects
of Mandarin, the value or utility of the assets of Mandarin or the equity
transferred and assigned hereby, or the ability of Mandarin and Li to
consummate the transactions contemplated herein.
5.3. There is no fact which has not disclosed to CHPF which
reasonably could be expected to have a material adverse effect upon the
condition (financial or otherwise), assets, liabilities, business,
operations, properties or prospects of Mandarin, the value or utility of
Mandarin or the equity transferred and assigned hereby, or the ability of
Mandarin or Li to consummate the transactions contemplated herein.
5.4. Mandarin is a limited liability company organized in accordance
with the laws of the People's Republic of China and, in accordance with its
issued business license, is authorized to engage in the business of the
distribution and manufacture of, among other things, imported and domestic
food products in the People's Republic of China.
5.5. Li's interest in Mandarin has been properly issued and recorded
with the appropriate authorities in the People's Republic of China.
5.6. Li has full, complete, and absolute title to 100% of the issued
and outstanding equity interests in Mandarin, consisting of Registered
Capital in the amount of RMB 10,000,000, free of any liens, encumbrances,
or agreements of any kind.
5.7. Attached to this Agreement and made a part of it are the most
recent financial statements of Mandarin for the period ended December
31,1999. There have been no changes in Mandarin's financial condition as
set out in the balance sheet between the date of the balance sheet and the
date of this Agreement except for those changes that will normally occur in
the regular course of Mandarin's business. Except for local staff salaries,
no salary increases, dividends, distributions, payments of profit sharing
or deferred compensation have been made since the date of the financial
statement fully described above.
5.8. Mandarin has not made any extraordinary payments to Li or other
third parties other than in the ordinary course of Mandarin's business
since the date of the financial statements attached to this Agreement,
except with respect to acquisitions of other businesses by Mandarin.
5.9. From the date of this Agreement Mandarin will not consent to
any increase in any employee's salary or the hire of any new management or
executive level employee.
5.10. From the date of this Agreement, Mandarin will not elect any
other directors or appoint any other officers, except as approved by CHPF
in writing.
5.11. Within the times and in the manner prescribed by law, Mandarin
has filed all tax returns which it is required to file, has paid or
provided for all taxes shown thereon to be due an owing by it, and has paid
or provided for all deficiencies or other assessments of taxes, interest,
or penalties owed by it; no taxing authority has asserted, or will
successfully asserted, any claim for the assessment of any additional taxes
of any nature with respect to any periods covered by any such tax returns.
All taxes which are required to be withheld or collected by Mandarin have
been duly withheld or collected and, to the extent required, have been paid
to the proper taxing authority or properly segregated or deposited as
required by law. Each tax return filed by Mandarin fully and accurately
reflects its liability for taxes for such year or period and accurately
sets forth all items (to the extent required to be included or reflected in
such returns) relevant to it future liability for taxes, including the tax
bases of its properties and assets. The provisions for taxes payable
reflected in the financial statements are fully adequate and correct.
In addition, with respect to tax matters of Mandarin:
(i) No review or audit of any tax return of Mandarin is in progress
or threatened or anticipated;
(ii) No issues have been raised with Mandarin by any taxing
authority which are currently pending. No material issues have
been raised in any examination by any taxing authority with
respect to Mandarin which, by application or similar
principals, reasonably could be expected to result in a
proposed deficiency for any other period not so examined. There
are no unresolved issues or unpaid deficiencies relating to any
such examination;
(iii) Mandarin is not subject to any partnership, joint venture or
other arrangement which is treated as a partnership for tax
purposes;
6. Indemnification.
6.1. Mandarin and Li agree to indemnify and hold CHPF harmless from
and against all liability, loss, damage and other claims arising directly
or indirectly from any breach of their representations set forth in
paragraph 5 herein.
6.2. Each party to this Agreement will indemnify and hold harmless
the other party by reason of any loss, including attorneys fees, suffered
as a result of the failure of such party to satisfy and perform the terms
and conditions and obligations of this Agreement or the material breach by
such party of any of its representations and warranties contained herein.
This paragraph does not apply to the actions of others that are not within
the control of a party to which this indemnification provision applies,
insofar as the ability of such party to satisfy the terms and conditions
and obligations of this Agreement are dependent upon such actions of
others.
6.3. Satisfaction of indemnification Obligations. If a party hereto
receives notice of any claim or other commencement of any action or
proceeding with respect to it as to which the other party to this Agreement
is obligated to provide indemnification pursuant to paragraphs 6.1 or 6.2
herein , the party receiving such notice promptly shall give the other
party written notice thereof, which notice shall specify, if known, the
amount or an estimate of the amount of the liability arising therefrom.
6.4. In connection with any claim giving rise to indemnity hereunder
resulting from or arising out of any claim or legal proceeding by a person
who is not a party to this Agreement, the Indemnitor at its sole cost and
expense may, upon written notice to the Indemnitee, assume the defense of
any such claim or legal proceeding using counsel of its choice (subject to
the approval of the Indemnitee) if it acknowledges to the Indemnitee in
writing its obligations to indemnify Indemnitee with respect to all
elements of such claim. Indemnitee shall be entitled to participate in the
defense of any such action, with its counsel and at its own expense;
provided, however, that if Indemnitee, in its sole discretion, determines
that there exists a conflict of interest between it and the Indemnitor,
Indemnitee shall have the right to engage separate counsel, the reasonable
costs and expenses of which shall be paid by the Indemnitor, but in no
event shall the Indemnitor be liable to pay for the costs and expenses of
more than one such separate counsel. If the Indemnitor does not assume the
defense of any such action or litigation resulting therefrom, the
Indemnitee may defend against such claim or litigation, after giving notice
of same to Indemnitor, on such terms as Indemnitee may deem appropriate,
and Indemnitor shall be entitled to participate in (but not control) the
defense of such action with his counsel and at his own expense.
7. Representations and Warranties of CHPF.
7.1. CHPF presently operates a Chinese joint venture business known
as Hangzhou Meilijian Dairy Products Co., Ltd. To the best of CHPF's
knowledge, Meilijian has in all material respects complied with and is now
in all material respects in compliance with, all laws and regulations
applicable to Meilijian. Except for permits or other licenses already held
by Meilijian, to the best of CHPF's knowledge, no other permit, license,
order or approval of any authority is material to or necessary for the
conduct of Meilijian or CHPF's participation therein.
7.2. To the best of CHPF's knowledge, there is no fact which CHPF
has not disclosed to Mandarin and Li which reasonably could be expected to
have a material adverse effect upon the condition (financial or otherwise),
assets, liabilities, business, operations, properties or prospects of CHPF,
or the ability of CHPF to consummate the transactions contemplated herein.
7.3. CHPF is a corporation organized in accordance with the laws of
the State of Delaware and, in accordance with its Articles of
Incorporation, is authorized to engage in the business of holding an
interest in Mandarin. The copies of the Articles of Incorporation and By-
Laws of CHPF, as amended to date, which have been filed with the Securities
and Exchange Commission and are a matter of public record are correct and
complete.
7.4. CHPF is a corporation in good standing. All taxes currently
due, including but not limited to income, trust, franchise, sales and
excise taxes, have been paid. There are no pending actions or proceedings
to limit or impair CHPF's power to engage in business or to dissolve CHPF.
7.5. The audited financial statements of CHPF as of December 31,
1998, and 1999 have been filed with the Securities and Exchange Commission
as part of CHPF's 1999 Form 10K-SB and have been made available to Mandarin
and Li. These financial statements are complete and correct and fairly
represent the financial position of CHPF on the dates of such statements
and the results of operations for the periods covered thereby. Except as
may occur in the ordinary course of business, there have been no material
changes in CHPF's financial condition as set out in its December 31, 1999
financial statement.
7.6. There are no actions at law or equity or administrative
proceedings pending against CHPF or in which CHPF is a plaintiff,
defendant, petitioner, or respondent. CHPF does not propose to commence an
action at law or equity or an administrative proceeding in which it will be
a plaintiff or petitioner. There are no actions at law or equity or
administrative proceedings pending in which it is anticipated that CHPF
will join or be joined as a party.
7.7. The execution, delivery and performance of this Agreement
referred to in Section 3.1 hereof have been duly authorized by all
necessary corporate or other action of CHPF and each such agreement is the
valid and binding obligation of CHPF, enforceable in accordance with its
terms, except to the extent limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditor's rights generally
and to general principles of equity. The issuance of CHPF's common stock to
Li pursuant to the terms of this Agreement shall be duly and validly
authorized, and no further approval or authority of the stockholders or the
directors of CHPF will be required for the issuance of the common stock and
options as contemplated by this Agreement. When issued to Li, the common
stock of CHPF will be validly issued, fully paid and non-assessable, free
and clear of all liens and encumbrances.
7.8. CHPF is not in violation of its Charter or by-laws as of the
date hereof. The execution, delivery and performance of this Agreement and
the transactions contemplated hereby (i) do not require any approval or
consent of, or filing with, and governmental agency or authority in the
United States of America or otherwise which has not been obtained and which
is not in full force and effect as of the date hereof, (ii) will not
conflict with or constitute a breach or violation of the Charter or by-laws
of CHPF or of any material agreement to which CHPF or its assets is
subject, and (iii) will not result in a violation of any law or regulation
to which it or its assets is subject.
7.9. The Form 10K-SB of CHPF, filed with the Securities and Exchange
Commission on April 14, 2000, describes all material aspects of the
business of CHPF. The factual information contained therein is correct in
all material respects, the assumptions are reasonable, and the projections
are, to the best knowledge of CHPF, reasonably attainable within the
periods indicated as of March 1, 2000.
8. Securities Issued As Consideration.
8.1. A registration statement for the securities issued as
consideration for the transaction herein is not in effect. To avoid
violation of the Securities Act of 1933, as amended, CHPF may require a
written commitment from Li before delivery of the certificate or
certificates for the securities issued pursuant to Paragraph 3.1 herein.
The commitment shall be in a form prescribed by CHPF and will state that it
is the intent of Li to acquire the securities for investment only and not
with the intent of transferring or reselling same; that Li has been
informed that the securities may be "restricted" pursuant to Rule 144 of
the Securities and Exchange Commission and that any resale, transfer, or
other distribution of the securities may only be made in conformity with
Rule 144, the Securities Act of 1933, as amended, or other federal statute,
rule, or regulation. CHPF will place a legend on the face of the
certificate or certificates in accordance with this commitment and may
refuse to permit transfer of the securities unless it receives satisfactory
evidence that the transfer will not violate Rule 144, the Securities Act of
1933, as amended, or any other federal statute, rule, or regulation.
8.2. The parties acknowledge and agree that no representations or
assurances have been made or given concerning whether such securities
referenced herein are tradable or, if tradable, the price at which such may
be traded.
8.3. With respect to the securities referenced in this Agreement,
CHPF agrees to use its best efforts, within the bounds of applicable
securities laws and business judgment of CHPF, to register its securities
to facilitate the creation of a public trading market for such securities
as soon as practicable. All expenses associated with such registration
statement shall be the responsibility of CHPF, including those expenses
attributable to the participation of Li in such registration statement. Li
shall not have the right to cause CHPF to initiate and prosecute such
registration statement upon the specific demand of Li, nor should anything
contained herein be deemed to provide or create such right. Li shall
furnish to CHPF such information regarding such holder and the distribution
proposed by such holder as CHPF may reasonably request in writing and as
shall be required in connection with any registration, qualification or
compliance process.
9. Notices. All notices, request, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to
have been received one (1) day after being sent by telecopy to the fax
numbers stated below (with copy delivered by regular mail) and to the
addresses set forth in the preamble to this agreement or to such other
address as any of them shall give to the others by notice made pursuant to
this paragraph:
a. If to China Premium Food Corporation: 000-000-0000
b. If to Mandarin Fine Foods or Xx. Xx: 67744671
10. Agreement Not Assignable. This Agreement may not be assigned
by any party without the written consent of the other parties.
11. Counterparts. This Agreement may be executed in several and
separate counterparts which, collectively, shall constitute the operative
Agreement among the parties.
12. Law Governing. This Agreement shall be governed by the laws of
the State of Delaware, without consideration of choice of law principles.
13. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and may be amended only by a written amendment executed by both
parties. The waiver by any party of a breach of any provision of this
Agreement shall not be a waiver of any subsequent breach.
IN WITNESS WHEREOF, the parties have signed this Agreement on the day
and year first above written.
China Premium Food Corporation
By /s/
---------------------------
Xxx X. Xxxxxx, President
Mandarin Fine Foods Co.
By /s/
---------------------------
Xx Xxx Yun, General Manager
By /s/
---------------------------
Xx Xxx Yun (Individually)
