STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
XXXXX FINANCIAL GROUP, INC.
a Florida Corporation
and
TEDA HOTELS MANAGEMENT COMPANY LIMITED
a BVI Corporation
effective as of May 1, 2002
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 27nd day of April, 2002, by and among Xxxxx Financial Group, Inc., a
Florida corporation with its principal place of business located at 00000
Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 ("Xxxxx") and Teda Hotels Management
Company Limited, a BVI corporation, with its principal place of business located
at Suite 1801, Chinachem Xxxxxxxx Xxxxx, 000 Xxxxxxxx Xxxx, Xxxxxxx Xxxx Xxxx
("Teda").
Premises
A. This Agreement provides for the acquisition of Teda by Xxxxx whereby
Teda shall become a wholly owned subsidiary of Xxxxx and in connection
therewith, the issuance of 5,000,000 ($ 0.001 par value per share) shares of
restricted common stock of Xxxxx to the Teda Shareholders and promoters as
designated on Exhibit A and other consideration.
B. The boards of directors of Teda and Xxxxx have determined, subject to
the terms and conditions set forth in this Agreement, that the transaction
contemplated hereby is desirable and in the best interests of their
stockholders, respectively. This Agreement is being entered into for the purpose
of setting forth the terms and conditions of the proposed acquisition.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
XXXXX FINANCIAL GROUP, INC.
As an inducement to and to obtain the reliance of Teda, Xxxxx represents
and warrants as follows:
Section 1.1 Organization. Xxxxx is a corporation duly organized, validly
existing, and in good standing under the laws of Florida and has the corporate
power and is duly authorized, qualified, franchised and licensed under all
applicable laws, regulations, ordinances and orders of public authorities to own
all of its properties and assets and to carry on its business in all material
respects as it is now being conducted, including qualification to do business as
a foreign corporation in the jurisdiction in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. Included in the Xxxxx Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation, bylaws and
amendments thereto of Xxxxx as in effect on the date hereof. The execution and
delivery of this Agreement does not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not
violate any provision of Xxxxx'x articles of incorporation or bylaws. Xxxxx has
full power, authority and legal right and has taken all action required by law,
its articles of incorporation, its bylaws or otherwise to authorize the
execution and delivery of this Agreement.
Section 1.2 Capitalization. The authorized capitalization of Xxxxx consists
of 10,000,000 Common Shares, $0.001 par value per share. As of the date hereof,
Xxxxx has 1,000,000 common shares issued and outstanding, of which 945,000 of
the outstanding shares are restricted. Xxxxx is not presently a publicly traded
company. All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. Xxxxx has no other securities, warrants or options authorized or
issued.
Section 1.3 Subsidiaries and Predecessor Corporations. Xxxxx does not have
any other subsidiaries and does not own, beneficially or of record, any shares
of any other corporation.
Section 1.4 Options and Warrants. There are no existing options, warrants,
calls or commitments of any character to which Xxxxx is a party and by which it
is bound.
Section 1.5 Litigation and Proceedings. To the best of Xxxxx'x knowledge
and belief, there are no actions, suits, proceedings or investigations pending
or threatened by or against Xxxxx or affecting Xxxxx or its properties, at law
or in equity, before any court or other governmental agency or instrumentality,
domestic or foreign or before any arbitrator of any kind that would have a
material adverse affect on the business, operations, financial condition or
income of Xxxxx. Xxxxx does not have any knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or instrumentality or
of any circumstances which, after reasonable investigation, would result in the
discovery of such a default.
Section 1.6 Material Contract Defaults. To the best of Xxxxx'x knowledge
and belief, Xxxxx is not in default in any material respect under the terms of
any outstanding contract, agreement, lease or other commitment which is material
to the business, operations, properties, assets or condition of Xxxxx, and there
is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which Xxxxx has not taken
adequate steps to prevent such a default from occurring.
Section 1.7 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Xxxxx is a
party or to which any of its properties or operations are subject.
Section 1.8 Governmental Authorizations. To the best of Xxxxx'x knowledge,
Xxxxx has all licenses, franchises, permits or other governmental authorizations
legally required to enable Xxxxx to conduct its business in all material
respects as conducted on the date hereof. Except for compliance with federal and
state securities and corporation laws, as hereinafter provided, no
authorization, approval, consent or order of, or registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by Xxxxx of this Agreement and the consummation of
Xxxxx of the transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF TEDA HOTELS MANAGEMENT COMPANY LIMITED
As an inducement to, and to obtain the reliance of Xxxxx, Xxxx represents
and warrants as follows:
Section 2.1 Organization. Teda is a corporation duly organized, validly
existing and in good standing under the laws of BVI and has the corporate power
and is duly authorized, qualified, franchised and licensed under all applicable
laws, regulations, ordinances and orders of public authorities to own all of its
properties and assets and to carry on its business in all material respects as
it is now being conducted, including qualification to do business as a foreign
entity in the country or states in which the character and location of the
assets owned by it or the nature of the business transacted by it requires
qualification. Included in the Teda Schedules (as hereinafter defined) are
complete and correct copies of the articles of
incorporation, bylaws and amendments thereto of Teda as in effect on the date
hereof. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of Teda's certificate of
incorporation or bylaws. Teda has full power, authority and legal right and has
taken all action required by law, its articles of incorporation, bylaws or
otherwise to authorize the execution and delivery of this Agreement.
Section 2.2 Capitalization. The authorized capitalization of Teda consists
of $5,000. As of the date hereof there are 100 Shares issued and outstanding.
Section 2.3 Subsidiaries and Predecessor Corporations. Except for Teda
Hotels Management Company Limited, a Hong Kong corporation, Teda does not have
any other subsidiaries and does not own, beneficially or of record, any shares
of any other corporation
Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of Teda are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Teda has no liabilities with respect to the payment of any country,
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
Section 2.5 Information. The information concerning Teda as set forth in
this Agreement and in the Teda Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading.
Section 2.6 Absence of Certain Changes or Events. Except as described
herein or in the Teda Schedules, since December 31, 2001:
(a) Teda has not: (i) amended its certificate of incorporation or bylaws;
(ii) waived any rights of value which in the aggregate are
extraordinary or material considering the business of Teda; (iii) made
any material change in its method of management, operation or
accounting; or (iv) made any accrual or arrangement for or payment of
bonuses or special compensation of any kind or any severance or
termination pay to any present or former officer or employee;
(b) Except for the stock options granted to Xxxxxx Xxxx as part of a
Consulting Agreement, Teda has not: (i) granted or agreed to grant any
options, warrants or other rights for its certificates, bonds or other
corporate securities calling for the issuance thereof, which option,
warrant or other right has not been canceled as of the Closing Date;
(ii) borrowed or agreed to borrow any funds or incurred or become
subject to, any material obligation or liability (absolute or
contingent) except liabilities incurred in the ordinary course of
business; and
(c) to the best knowledge of Teda, it has not become subject to any law or
regulation which materially and adversely affects, or in the future
may adversely affect, the business, operations, properties, assets or
condition of Teda.
Section 2.7 Title and Related Matters. Teda has good and marketable title
to and is the sole and exclusive owner of all of its properties, inventory,
interests in properties and assets, real and
personal (collectively, the "Assets") which are reflected in the
most recent Teda balance sheet and the Teda Schedules or acquired after that
date (except properties, interests in properties and assets sold or otherwise
disposed of since such date in the ordinary course of business), free and clear
of all liens, pledges, charges or encumbrances. Except as set forth in the Teda
Schedules, Teda owns free and clear of any liens, claims, encumbrances, royalty
interests or other restrictions or limitations of any nature whatsoever and all
procedures, techniques, marketing plans, business plans, methods of management
or other information utilized in connection with Teda's business. Except as set
forth in the Teda Schedules, no third party has any right to, and Teda had not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of Teda or any material portion of
its properties, assets or rights.
Section 2.8 Litigation and Proceedings. There are no actions, suits or
proceedings pending or, to the best of Teda's knowledge and belief, threatened
by or against or affecting Teda, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse effect on the
business, operations, financial condition, income or business prospects of Teda.
Teda does not have any knowledge of any default on its part with respect to any
judgement, order, writ, injunction, decree, award, rule or regulation of any
court, arbitrator or governmental agency or instrumentality.
Section 2.9 Contracts. On the Closing Date:
(a) There are no material contracts, agreements, franchises, license
agreements, or other commitments to which Teda is a party or by which
it or any of its properties are bound;
(b) Teda is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate restriction or
any judgment, order, writ, injunction, decree or award which
materially and adversely affects, or in the future may (as far as Teda
can now foresee) materially and adversely affect, the business,
operations, properties, assets or conditions of Teda; and
(c) Teda is not a party to any material oral or written: (i) contract for
the employment of any officer or employee; (ii) profit sharing, bonus,
deferred compensation, stock option, severance pay, pension, benefit
or retirement plan, agreement or arrangement covered by Title IV of
the Employee Retirement Income Security Act, as amended; (iii)
agreement, contract or indenture relating to the borrowing of money;
(iv) guaranty of any obligation for the borrowing of money or
otherwise, excluding endorsements made for collection and other
guaranties of obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than one
year or providing for payments in excess of $10,000 in the aggregate;
(vi) collective bargaining agreement; (vii) contract, agreement, or
other commitment involving payments by it for more than $10,000 in the
aggregate.
Section 2.10 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Teda is a
party or to which any of its properties or operations are subject.
Section 2.11 Material Contract Defaults. To the best of Teda's knowledge
and belief, Teda is not in default in any material respect under the terms of
any outstanding contract, agreement, lease or other commitment which is material
to the business, operations, properties, assets or condition of Teda, and there
is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which Teda has not taken
adequate steps to prevent such a default from occurring.
Section 2.12 Governmental Authorizations. To the best of Teda's knowledge,
Teda has all licenses, franchises, permits and other governmental authorizations
that are legally required to enable it to conduct its business operations in all
material respects as conducted on the date hereof. Except for compliance with
federal and state securities or corporation laws, no authorization, approval,
consent or order of, or registration, declaration or filing with, any court or
other governmental body is required in connection with the execution and
delivery by Teda of the transactions contemplated hereby.
Section 2.13 Compliance With Laws and Regulations. To the best of Teda's
knowledge and belief, Teda has complied with all applicable statutes and
regulations of any federal, state or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business; operations, properties, assets or condition of
Teda or would not result in Teda's incurring any material liability.
Section 2.14 Insurance. All of the insurable properties of Teda are insured
for Teda's benefit in accordance with the insurance policies disclosed in the
Teda Schedules under valid and enforceable policy or policies containing
substantially equivalent coverage and will be outstanding and in full force at
the Closing Date.
Section 2.15 Approval of Agreement. The holders of a majority of the Common
Voting Shares outstanding of Teda have authorized the execution and delivery of
the Agreement by Teda and have approved the transactions contemplated hereby.
Section 2.16 Material Transactions or Affiliations. As of the Closing Date,
there will exist no material contract, agreement or arrangement between Teda and
any person who was at the time of such contract, agreement or arrangement an
officer, director or person owning of record, or known by Teda to own
beneficially, ten percent (10%) or more of the issued and outstanding Common
Shares of Teda and which is to be performed in whole or in part after the date
hereof. Teda has no commitment, whether written or oral, to lend any funds to,
borrow any money from or enter into any other material transactions with, any
such affiliated person.
Section 2.17 Labor Relations. Teda has never had a work stoppage resulting
from labor problems.
Section 2.18 Teda Schedules. Upon execution hereof, Teda shall deliver to
Xxxxx the following schedules, which are collectively referred to as the "Teda
Schedules" which are dated the date of this Agreement, all certified by an
officer of Teda to be complete, true and accurate:
(a) complete and correct copies of the certificate of incorporation,
bylaws and amendment thereto of Teda as in effect as of the date of
this Agreement;
(b) copies of three (3) previous years financial statements of Teda;
(c) copies of three (3) previous years income and any other tax returns of
Teda;
(d) all contracts of Teda executed by Teda and presently in effect;
(e) Officers and Directors Questionnaires;
(f) the description of any material adverse change in the business,
operations, property, assets, or condition of Teda since December 31,
2001 required to be provided pursuant to Section 2.6;
(g) any other information, together with any required copies of documents,
required to be disclosed in the Teda Schedules by Sections 2.1 through
2.17; and (h) Any other documents requestedby Xxxxx'x counsel.
Teda shall cause the Teda Schedules and the instruments to be delivered to
Xxxxx hereunder to be updated after the date hereof up to and including the
Closing Date.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of Teda Securities. On the Closing
Date, the holders of Teda Common Shares shall deliver to Xxxxx (i) certificates
or other documents evidencing all of the issued and outstanding Teda Common
Shares, duly endorsed in blank or with executed power attached thereto in
transferrable form. On the Closing Date, all previously issued and outstanding
Common Shares of Teda shall be canceled and all rights in respect thereof shall
cease and Xxxxx shall receive such shares in Teda, the BVI corporation, so that
Teda shall become a wholly owned subsidiary of Xxxxx. Teda's legal counsel shall
take all appropriate action to confirm such transaction.
Section 3.2 Issuance of Teda Common Shares. In exchange for all of the Teda
Common Shares tendered pursuant to Section 3.1, Xxxxx shall issue an aggregate
of 5,000,000 restricted Xxxxx Common Shares as follows:
New Nature Development Ltd. 513,000 shares
Teda Hotel Management Pte Ltd. 1,197,000 shares
Magnolia Group Holdings Ltd. 1,710,000 shares
Takeda Developments Limited 1,020,000 shares
Xxxxxxx Xxx 280,000 shares
Xxxxxx Xxxxx 280,000 shares
Such shares shall be restricted in accordance with Rule 144 of the Securities
Act of 1933. In addition, at closing, Xxxxxxx Xxxxxxxxx, the majority
shareholder of Xxxxx shall return 300,000 shares to treasury. The remaining
700,000 outstanding common shares shall be retained by the current shareholders.
All of holders of Xxxxx restricted shares as of the date of this Agreement,
including but not limited to, Xxxxxxx Xxxxxxxxx shall have piggyback
registration rights.
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Teda and Xxxxx shall execute, acknowledge
and deliver (or shall cause to be executed, acknowledged and delivered) any and
all certificates, opinions, financial statements, schedules, agreements,
resolutions rulings or other instruments required by this Agreement to be so
delivered, together with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to effectuate or
evidence the transactions contemplated hereby, subject only to the conditions to
Closing referenced hereinbelow.
Section 3.4 Closing. The closing ("Closing") of the transactions
contemplated by this
Agreement shall be on or about May 1, 2002 ("Closing Date").
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or majority
interest of Shareholders of either Xxxxx or Teda, respectively, at any
time prior to the Closing Date if:
(i) there shall be any action or proceeding before any court or any
governmental body which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement and
which, in the judgement of such board of directors, made in good
faith and based on the advice of its legal counsel, makes it
inadvisable to proceed with the exchange contemplated by this
Agreement; or
(ii) any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate
such transactions.
In the event of termination pursuant to this paragraph
(a) of this Section 3.6, no obligation, right, or liability shall arise
hereunder and each party shall bear all of the expenses incurred by it
in connection with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated;
(b) This Agreement may be terminated at any time prior to the Closing Date
by action of the board of directors of Xxxxx if Teda shall fail to
comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or
warranties of Teda contained herein shall be inaccurate in any
material respect, which noncompliance or inaccuracy is not cured after
20 days written notice thereof is given to Teda. If this Agreement is
terminated pursuant to this paragraph (b) of this Section 3.6, this
Agreement shall be of no further force or effect and no obligation,
right or liability shall arise hereunder.
Section 3.6 Directors of Xxxxx After Acquisition. Upon the Closing, the
Board of Directors of Xxxxx shall be the following: Xxxxx Xxx Ying; Xxx Xxxx
Xxxx; Xxxxxx Xxx Tak. Each director shall hold office until his successor shall
have been duly elected and shall have qualified or until his earlier death,
resignation or removal.
Section 3.7 Officers of Xxxxx. Upon the closing, the following persons
shall be elected as officers of Xxxxx in accordance with procedures set forth in
the Xxxxx bylaws:
NAME OFFICE
---- ------
Xxxxx Xxx Xxxx Chairman of the Board
Xxx Xxxx Xxxx, Xxxxxxx Managing Director
Xxxxxx Xxx Tak Chief Financial Officer
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing, Teda , and
Xxxxx will each afford to the officers and authorized representatives of the
other full access to the properties, books and records of Teda and Xxxxx as the
case may be, in order that each may have full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other
and each will furnish the other with such additional financial and operating
data and other information as to the business and
properties of Teda and Xxxxx as the case may be, as the other shall from time to
time reasonably request.
Section 4.2 Availability of Rule 144. Each of the parties acknowledge that
the stock of Xxxxx to be issued pursuant to this Agreement will be "restricted
securities", as that term is defined in Rule 144 promulgated pursuant to the
Securities Act. Xxxxx is under no obligation to register such shares under the
Securities Act, or otherwise. The stockholders of Xxxxx holding restricted
securities of Xxxxx as of the date of this Agreement and their respective heirs,
administrators, personal representatives, successors and assigns, are intended
third party beneficiaries of the provisions set forth herein. The covenants set
forth in this Section 4.2 shall survive the Closing and the consummation of the
transactions herein contemplated. All "restricted" shares issued in accordance
with this Agreement shall be restricted in accordance with Rule 144.
Section 4.3 Special Covenants and Representations Regarding the Teda Common
Shares to be Issued in the Exchange. The consummation of this Agreement,
including the issuance of the Xxxxx Common Shares to the Shareholders of Teda as
contemplated hereby, constitutes the offer and sale of securities under the
Securities Act, and applicable state statutes. Such transaction shall be
consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, inter alia, upon the
circumstances under which the Teda Shareholders acquire such securities.
Section 4.4 Third Party Consents. Teda and Xxxxx agree to cooperate with
each other in order to obtain any required third party consents to this
Agreement and the transactions herein contemplated.
Section 4.5 Actions Prior and Subsequent to Closing.
(a) From and after the date of this Agreement until the Closing Date and
except as set forth in the Teda Schedules or as permitted or
contemplated by this Agreement, Teda will each use its best efforts
to:
(i) carry on its business in substantially the same manner as it has
heretofore;
(ii) maintain and keep its properties in states of good repair and
condition as at present, except for depreciation due to ordinary
wear and tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in amount
and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its obligations under
material contracts, leases and instruments relating to or
affecting its assets, properties and business;
(v) maintain and preserve its business organization intact, to retain
its key employees and to maintain its relationship with its
material suppliers and customers; and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state
laws and all rules, regulations and orders imposed by federal or
state governmental authorities.
(b) From and after the date of this Agreement until the Closing Date, Teda
will not, without the prior consent of Xxxxx:
(i) except as otherwise specifically set forth herein, make any
change in its
articles of incorporation or bylaws;
(ii) declare or pay any dividend on its outstanding Common Shares,
except as may otherwise be required by law, or effect any stock
split or otherwise change its capitalization, except as provided
herein;
(iii) enter into or amend any employment, severance or agreements or
arrangements with any directors or officers;
(v) grant, confer or award any options, warrants, conversion rights
or other rights not existing on the date hereof to acquire any
Common Shares; or
(vi) purchase or redeem any Common Shares.
Section 4.6 Indemnification.
(a) Teda an dits officers and directors hereby agree to indemnify Xxxxx
and its officers, agents and directors of Xxxxx as of the date of
execution of this Agreement including, but not limited to Xxxxxxx
Xxxxxxxxx, against any loss, liability, claim, damage or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against
and litigation, commenced or threatened or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentation made in this Agreement,
including, but not limited to, misrepresentations by Teda. The
indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement; and
(b) Xxxxx and its officers and directors hereby agrees to indemnify Teda
and each of the officers, agents, directors and current shareholders
of Teda as of the Closing Date against any loss, liability, claim,
damage or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject arising out of or
based on any inaccuracy appearing in or misrepresentation made in this
Agreement and particularly the representation regarding no liabilities
referred to in Section 2.4 (b). The indemnification provided for in
this Section shall survive the Closing and consummation of the
transactions contemplated hereby and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXX
The obligations of Xxxxx under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.1 Accuracy of Representations. The representations and warranties
made by Teda in this Agreement were true when made and shall be true at the
Closing Date with the same force and effect as if such representations and
warranties were made at the Closing Date (except for changes therein permitted
by this Agreement), and Teda shall have performed or compiled with all covenants
and conditions required by this Agreement to be performed or complied with by
Teda prior to or at the Closing. Xxxxx shall be furnished with a certificate,
signed by a duly authorized officer of Teda and dated the Closing Date, to the
foregoing effect.
Section 5.2 Shareholder Approval. All of the Shareholders of Teda shall
have approved this Agreement and the transactions contemplated herein.
Section 5.3 Officer's Certificate. Xxxxx shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
Teda to the effect that: (a) the representations and warranties of Teda set
forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; (b) Teda has performed all covenants,
satisfied all conditions, and complied with all other terms and provisions of
this Agreement to be performed, satisfied or complied with by it as of the
Effective Date; (c) since such date and other than as previously disclosed to
Xxxxx and Teda have not entered into any material transaction other than
transactions which are usual and in the ordinary course if its business; and (d)
No litigation, proceeding, investigation or inquiry is pending or, to the best
knowledge of Teda, threatened, which might result in an action to enjoin or
prevent the consummation of the transactions contemplated by this Agreement or,
to the extent not disclosed in the Teda Schedules, by or against Teda which
might result in any material adverse change in any of the assets, properties,
business or operations of Teda.
Section 5.4 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business or operations or Teda.
Section 5.5 Opinion of Counsel to Teda. Xxxxx shall receive an opinion
dated the Closing date of April 24, 2002, counsel to Teda, in substantially the
following form:
(a) Teda is a corporation duly organized, validly existing, and in good
standing under the laws of BVI and has the corporate power and is duly
authorized, qualified, franchised and licensed under all material
applicable laws, regulations, ordinances and orders of public
authorities to own all of its properties and assets and to conduct its
business as now conducted, including qualification to do business as a
foreign corporation in the states in which the character and location
of the assets owned by it or the nature of the business transacted by
it requires qualifications;
(b) To the best knowledge of such legal counsel, the execution and
delivery by Teda of this Agreement and the consummation of the
transactions contemplated by this Agreement in accordance with the
terms hereof will not conflict with or result in the breach of any
term or provision of Teda's certificate of incorporation or Bylaws or
violate any court order, writ, injunction or decree applicable to
Teda, or its properties or assets;
(c) All issued and outstanding Share Certificates are legally issued,
fully paid and nonassessable. Except as set forth in the Teda
Schedules, to the best knowledge of such legal counsel, there are no
outstanding subscriptions, options, rights, warrants, convertible
securities or other agreements or commitments obligating Teda to issue
any additional Share Certificates.
(d) This Agreement has been duly and validly authorized, executed and
delivered by Teda;
(e) To the best knowledge of such legal counsel, except as set forth in
the Teda Schedules, there are no actions, suits or proceedings pending
or threatened by or against or affecting Teda or its properties, at
laws or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign or before any arbitrator of any
kind;
(f) Teda has taken all actions required by the applicable laws of BVI to
permit the
acquisition of the outstanding shares of Teda into Xxxxx.
Section 5.6 Other Items. Xxxxx shall have received such further documents,
certificates or instruments relating to the transactions contemplated hereby as
Xxxxx may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF TEDA
The obligations of Teda under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
Section 6.1 Accuracy of Representations. The representations and warranties
made by Xxxxx and in this Agreement were true when made and shall be true as of
the Closing Date (except for changes therein permitted by this Agreement) with
the same force and effect as if such representations and warranties were made at
and as of the Closing Date, and Xxxxx shall have performed and complied with all
covenants and conditions required by this Agreement to be performed or complied
with by Xxxxx prior to or at the Closing. Teda shall have been furnished with a
certificate, signed by a duly authorized executive officer of Xxxxx dated the
Closing Date, to the foregoing effect.
Section 6.2 Officer's Certificate. Teda shall be furnished with a
certificate dated the Closing date and signed by a duly authorized officer of
Xxxxx to the effect that: (a) the representations and warranties of Xxxxx set
forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; and (b) Xxxxx had performed all covenants,
satisfied all conditions, and complied with all other terms and provisions of
the Agreement to be performed, satisfied or complied with by it as of the
Effective Date.
Section 6.3 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations or nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business or operations of Xxxxx.
Section 6.4 Opinion of Counsel to Xxxxx. Teda shall receive an opinion
dated the Closing Date of Xxxxxx & Jaclin, LLP, counsel to Xxxxx, in
substantially the following form:
(a) Xxxxx is a corporation duly organized, validly existing, and in good
standing under the laws of the state of Florida and has the corporate
power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances and orders of
public authorities to own all of its properties and assets and to
carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign
corporation in the states in which the character and location of the
assets owned by it or the nature of the business transacted by it
requires qualification;
(b) To the best knowledge of such legal counsel, the execution and
delivery by Xxxxx of this Agreement and the consummation of the
transactions contemplated by this Agreement in accordance with the
terms hereof will not conflict with or result in the breach of any
term or provision of Xxxxx'x articles of incorporation or bylaws or
constitute a default or give rise to a right of termination,
cancellation or acceleration under any material mortgage, indenture,
deed of trust, license agreement or other obligation or violate any
court order, writ, injunction or decree applicable to Xxxxx or its
properties or assets;
(c) The authorized capitalization of Xxxxx consists of 10,000,000 shares
of
Common Stock, par value $0.001 per share. As of the Closing Date,
there will be the 1,000,000 issued and outstanding common shares of
Xxxxx. In addition, in accordance with the terms of this Agreement,
the Teda Shareholders shall obtain 5,000,000 Xxxxx "restricted" common
shares under Rule 144 and 300,000 Xxxxx common shares will be returned
to treasury. All issued and outstanding shares are legally issued,
fully paid and nonassessable and issued in violation of the preemptive
rights of any person;
(d) The Xxxxx Common Shares to be issued to the Teda Shareholders pursuant
to the terms of this Agreement will be, when issued in accordance with
the terms hereof, legally issued, fully paid and non-assessable;
(e) This Agreement has been duly and validly authorized, executed, and
delivered and constitutes the legal and binding obligation of Xxxxx,
except as limited by bankruptcy and insolvency laws and by other laws
affecting the rights of creditors generally;
(f) To the best knowledge of such counsel, there are no actions, suits or
proceedings pending or threatened by or against Xxxxx or affecting
Xxxxx'x properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before
any arbitrator of any kind; and
(g) Xxxxx have taken all actions required by the applicable laws of the
state of Florida to permit the issuance of the Xxxxx Common Shares to
the Teda Shareholders.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person not listed in
Schedule 7.1 for any commission, brokerage or finder's fee or other payment with
respect to this Agreement or the transactions contemplated hereby based on any
alleged agreement or understanding between the indemnifying party and such third
person, whether express or implied from the actions of the indemnifying party.
Section 7.2 Law. Forum and Jurisdiction. This Agreement shall be construed
and interpreted in accordance with the laws of the State of Florida, United
States of America.
Section 7.3 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Xxxxx: 00000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 000000 XXX
If to Teda: Suite 1801, Chinachem Xxxxxxxx Xxxxx
000 Xxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have given as of the date so delivered, mailed or telegraphed.
Section 7.4 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parities shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fee, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 7.5 Confidentiality. Each party hereto agrees with the other
parties that, unless and until the reorganization contemplated by this Agreement
has been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not used such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
Section 7.6 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.7 Third Party Beneficiaries. This contract is solely among Teda,
Teda Shareholders, Xxxxx and except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 7.8 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except a set forth herein. This Agreement may not be amended or modified, except
by a written agreement signed by all parties hereto.
Section 7.9 Survival; Termination. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for 18 months.
Section 7.10 Counterparts. This Agreements may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.11 Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.12 Incorporation of Recitals. All of the recitals hereof are
incorporated by this
reference and are made a part hereof as though set forth at length herein.
Section 7.13 Expenses. Each party herein shall bear all of their respective
cost s and expenses incurred in connection with the negotiation of this
Agreement and in the consummation of the transactions provided for herein and
the preparation thereof.
Section 7.14 Headings; Context. The headings of the sections and paragraphs
contained in this Agreement are for convenience of reference only and do not
form a part hereof and in no way modify, interpret or construe the meaning of
this Agreement.
Section 7.15 Benefit. This Agreement shall be binding upon and shall insure
only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
Section 7.16 Public Announcements. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
Section 7.17 Severability. In the event that any particular provision or
provisions of this Agreement or the other agreements contained herein shall for
any reason hereafter be determined to be unenforceable, or in violation of any
law, governmental order or regulation, such unenforceability or violation shall
not affect the remaining provisions of such agreements, which shall continue in
full force and effect and be binding upon the respective parties hereto.
Section 7.18 Failure of Conditions; Termination. In the event of any of the
conditions specified in this Agreement shall not be fulfilled on or before the
Closing Date, either of the parties have the right either to proceed or, upon
prompt written notice to the other, to terminate and rescind this Agreement
without liability to any other party. The election to proceed shall not affect
the right of such electing party reasonably to require the other party to
continue to use its efforts to fulfill the unmet conditions.
Section 7.19 No Strict Construction. The language of this Agreement shall
be construed as a whole, according to its fair meaning and intendment, and not
strictly for or against wither party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.20 Execution Knowing and Voluntary. In executing this Agreement,
the parties severally acknowledge and represent that each: (a) has fully and
carefully read and considered this Agreement; (b) has been or has had the
opportunity to be fully apprized of its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; and (c) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, and
entered into as of the date first above written.
ATTEST: XXXXX FINANCIAL GROUP, INC.
/s/ By:
----------------------------------- --------------------------------
ATTEST: TEDA HOTELS MANAGEMENT COMPANY
LIMITED
/s/ By:
----------------------------------- --------------------------------
EXHIBIT "A"
--------------------------------------
LIST OF SHAREHOLDERS AND PROMOTERS OF
TEDA HOTELS MANAGEMENT COMPANY LIMITED
--------------------------------------------
Name % of Shares
New Nature Development Ltd. 10.26%
Teda Hotels Management Pte Ltd. 23.94%
Magnolia Group Holdings Ltd. 34.20%
Takeda Developments Limited 20.40%
Xxxxxxx Xxx 5.60%
Xxxxxx Xxxxx 5.60%
