Exhibit 10.1
THIS SHARE EXCHANGE AGREEMENT, dated as of the 14th day of June, 2005 (the
"Agreement"), by and among Vorsatech Ventures, Inc. a Delaware corporation (the
"Company"); Xxxxxx Xxxxx ("Xxxxx") and Berlin Capital Investments, Inc., a
British Columbia corporation (the "Shareholder"); Bearn's Power Investment
Corporation, a British Virgin Islands corporation and Strong Gold Finance
Corporation, a British Virgin Islands corporation (the "Sellers"); and Synutra,
Inc., an Illinois corporation ("'Synutra"). The Company, Xxxxx, the Shareholder,
the Sellers and Synutra are collectively referred to herein as the "Parties".
W I T N E S S E T H:
WHEREAS, the Sellers collectively own all of the shares of the capital of
Synutra (the "Synutra Shares") which in turn owns all of the registered capital
of six foreign owned companies organized under the laws of the People's Republic
of China (the "Subsidiaries").
WHEREAS, the Company desires to acquire from Sellers, and Sellers desire to
sell to the Company, the Synutra Shares in exchange (the "Exchange") for the
issuance by the Company of an aggregate of 45,879,500 shares (the "Company
Shares") of Company Common Stock. The Company Shares shall be issued to the
Sellers and/or their designees, as to 46,000,000 Company Shares, WestPark
Capital, Inc. (the "Financial Consultant"), and/or its designees as to 2,854,500
Company Shares, and a finder, as to 25,000 Company Shares, on the terms and
conditions set forth herein. The remaining balance of 1,212,213 shares is
composed of shares originally held by certain of the Company's shareholders and
other non-affiliated shareholders.
WHEREAS, Xxxxx through the Shareholder owns approximately 83% of the
outstanding capital stock of the Company and will benefit from the transactions
contemplated herein.
WHEREAS, after giving effect to the Exchange and the share cancellation as
described herein, there will be approximately 50,000,713 shares of Company
Common Stock issued and outstanding.
NOW, THEREFORE, in consideration, of the premises and of the mutual
representations, warranties and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE I
THE EXCHANGE
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1.1 The Exchange. Subject to the terms and conditions of this Agreement, on
the Closing Date (as hereinafter defined):
(a) the Company shall issue and deliver to each of the Sellers and/or
their designees and the Financial Consultant and/or its designee the number of
authorized but unissued shares of Company Common Stock set forth opposite such
Seller's or designee's names set forth on Schedule I hereto or pursuant to
separate instructions to be delivered prior to Closing, and
(b) the Sellers agree to deliver to the Company duty endorsed
certificates representing the Synutra Shares.
1.2 Time and Place of Closing. The closing of the transactions contemplated
hereby (the "Closing") shall take place at the offices of Xxxx & Xxxxx on or
before July 15, 2005 (the "Closing Date") at 10:00 a.m., or at such place and
time as mutually agreed upon by the parties hereto.
1.3 Effective Time. The Exchange shall become effective (the "Effective
Time") at such time as all of the conditions to set forth in Article VII hereof
have been satisfied or waived by the Parties hereto,
1.4 Escrow. Notwithstanding anything herein to the contrary, an escrow
("Escrow") shall be established at the law firm of Xxxx & Xxxxx (the "Escrow
Agent") pursuant to an escrow agreement among the Parties and Xxxx & Xxxxx (the
"Escrow Agreement") upon terms reasonably acceptable to the parties to the
Escrow Agreement. Pursuant to the Escrow, the following Shares shall be
deposited with the Escrow Agent: the 48,879,500 Company Shares.
ARTICLE II
REPRESENTATIONS, AND WARRANTIES OF
----------------------------------
THE, COMPANY AND THE SHAREHOLDER
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The Company and the Shareholder severally represent and warrant to Synutra
and each of the Sellers that now and/or as of the Closing:
2,1 Due Organization and Qualification; Due Authorization.
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its respective business
and properties and to carry on its business in the places and in the manner as
presently conducted or proposed to be conducted, The Company is in good standing
as a foreign corporation in each jurisdiction in which the properties owned,
leased or operated, or the business conducted, by it requires such qualification
except for any such failure, which when taken together with all other failures,
is not likely to have a material adverse effect on the business of the Company.
(b) The Company does not own, directly or indirectly, any capital
stock, equity or interest in any corporation, firm, partnership, joint venture
or other entity.
(c) The Company has all requisite corporate power and authority to
execute and deliver this Agreement, and to consummate the transactions
contemplated hereby and thereby. The Company has taken all corporate action
necessary for the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, and this Agreement constitutes the
valid and -binding obligation of the Company and the Shareholder, enforceable
against the Company and the Shareholder in accordance with its terms, except as
may be affected by bankruptcy, insolvency, moratoria or other similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be brought,
equitable remedies is subject to the discretion of the court before which any
proceeding therefore may be brought.
2.2 No Conflicts or Defaults. The execution and delivery of this Agreement
by the Company and the consummation of the transactions contemplated hereby do
not and shall not (a) contravene the Certificate of Incorporation or By-laws of
the Company or (b) with or without the giving of notice or the passage of time
(i) violate, conflict with, or result in a breach of, or a default or loss of
rights under, any material covenant, agreement, mortgage, indenture, lease,
instrument, permit or license to which the Company is a party or by which the
Company is bound, or any judgment, order or decree, or any law, rule or
regulation to which the Company is subject, (ii) result in the creation of, or
give any party the right to create, any lien, charge, encumbrance or any other
right or adverse interest ("Liens") upon any of the assets of the Company, (iii)
terminate or give any party the right to terminate, amend, abandon or refuse to
perform, any material agreement, arrangement or commitment to which the Company
is a party or by which the Company's assets are bound, or (iv) accelerate or
modify, or give any party the right to accelerate or modify, the time within
which, or the terms under which, the Company is to perform any duties or
obligations or receive any rights or benefits under any material agreement,
arrangement or commitment to which it is a party.
2.3 Capitalization. The authorized capital stock of the Company immediately
prior to giving effect to the transactions contemplated hereby consists of
270,000,000 shares of which 250,000,000 have been designated as Company Common
Stock $.0001 par value and 20,000,000 shares have been designed as preferred
stock, $.0001 par value ("Preferred Stock"). As of the date hereof, there are
2,638,713, shares of Company Common Stock issued and outstanding and no shares
of Preferred Stock outstanding. All of the outstanding shares of Company Common
Stock are, and the Company Shares when issued in accordance with the terms
hereof, will be, duly authorized, validly issued, fully paid and nonassessable,
and have not been or, with respect to the Company Shares will not be issued in
violation of any preemptive right of stockholders. There is no outstanding
voting trust agreement or other contract, agreement, arrangement, option,
warrant, call, commitment or other right of any character obligating or
entitling the Company to issue, sell, redeem or repurchase any of its
securities, and there is no outstanding security of any kind convertible into or
exchangeable for Company Common Stock. The Company has not granted registration
rights to any person.
2.4 Financial Statements. Item 2.4 of the Disclosure Schedule to this
Agreement, includes copies the balance sheets of the Company at March 31, 2005
and 2004, and the related statements of operations and cash flows for the fiscal
years then ended, including the notes thereto, as audited by Xxxxxxxxx
International, P.C. independent accountants (the "Financial Statements"). The
Financial Statements, together with the notes thereto, have been prepared in
accordance with U.S. generally accepted accounting principles applied on a basis
consistent throughout all periods presented. The Financial Statements present
fairly the financial position of the Company as of the dates and for the periods
indicated. The books of account and other financial records of the Company have
been maintained in accordance with good business practices.
2.5 No Assets or Liabilities. Except as set forth on the Financial
Statements, the Company does not have any (a) assets of any kind or (b)
liabilities or obligations, whether
secured or unsecured, accrued, determined, absolute or contingent, asserted or
unasserted or otherwise.
2.6 Taxes. The Company has filed all United States federal, state, county
and local returns and reports which were required to be filed on or prior to the
date hereof in respect of all income, withholding, franchise, payroll, excise,
property, sales, use, value-added or other taxes or levies, imposts, duties,
license and registration fees, charges, assessments or withholdings of any
nature whatsoever (together, "Taxes"), and has paid all Taxes (and any related
penalties, fines and interest) which have become due pursuant to such returns or
reports or pursuant to any assessment which has become payable, or, to the
extent its liability for any Taxes (and any related penalties, fines and
interest) has not been fully discharged, the same have been properly reflected
as a liability on the books and records of the Company and adequate reserves
therefore have been established.
2.7 Indebtedness; Contracts; No Defaults. The Company has no material
instruments, agreements, indentures, mortgages, guarantees, notes, commitments,
accommodations, letters of credit or other arrangements or understandings,
whether written or oral, to which the Company is a parry.
2.8 Real. Property. The Company does not own or lease any real property.
2.9 Compliance with Law. The Company is in compliance with all applicable
federal, state, local and foreign laws and regulations relating to the
protection of the environment and human health. There are no claims, notices,
actions, suits, hearings, investigations, inquiries or proceedings pending or,
to the knowledge of the Company, threatened against the Company that are based
on or related to any environmental matters or the failure to have any required
environmental permits, and there are no past or present conditions that the
Company has reason to believe are likely to give rise to any material liability
or other obligations of the Company under any environmental laws.
2.10 Permits and Licenses. The Company has all certificates of occupancy,
rights, permits, certificates, licenses, franchises, approvals and other
authorizations as are reasonably necessary to conduct its respective business
and to own, lease, use, operate and occupy its assets, at the places and in the
manner now conducted and operated, except those the absence of which would not
materially adversely affect its respective business.
2.11 Litigation. There is no claim, dispute, action, suit, proceeding or
investigation pending or, to the knowledge of the Company and the Shareholder,
threatened, against or affecting the business of the Company, or challenging the
validity or propriety of the transactions contemplated by this Agreement, at law
or in equity or admiralty or before any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, nor to the
knowledge of the Company and the Shareholder, has any such claim, dispute,
action, suit, proceeding or investigation been pending or threatened, during the
twelve month period preceding the date hereof. There is no outstanding judgment,
order, writ, ruling, injunction, stipulation or decree of any court, arbitrator
or federal, state, local, foreign or other governmental authority, board,
agency, commission or instrumentality, against or materially affecting the
business of the Company. The Company has not received any written or verbal
inquiry from any
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality concerning the possible violation of any law, rule
or regulation or any matter disclosed in respect of its business.
2.12 Insurance. The Company does not currently maintain any form of
insurance.
2.13 Patents; Trademarks and Intellectual Property Rights. The Company does
not own or possesses any patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, Internet web site(s) or
proprietary rights of any nature.
2.14 Trading. The Company Common Stock is currently listed for trading on
the OTC Bulletin Board (the "Bulletin Board") and the Company has received no
notice that its Common Stock is subject to being delisted therefrom.
2.15 Securities Law Compliance. The Company has complied with all of the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the Securities Act of 1933, as amended (the "Securities Act"), and has
complied with all applicable blue sky laws.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SYNUTRA
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Synutra and the Sellers severally represent and warrant to the Company that
now and/or as of the Closing:
3.1 Due Organization and Qualification; Subsidiaries, Due Authorization.
(a) Synutra is a company duly organized, validly existing and in good
standing under the laws of the state of Illinois, with full corporate power and
authority to own, lease and operate its business and properties and to carry on
its business in the places and in the manner as presently conducted or proposed
to be conducted. Synutra is in good standing as a foreign corporation in each
jurisdiction in which the properties owned, leased or operated, or the business
conducted, by it requires such qualification except for any such failure, which
when taken together with all other failures, is not likely to have a material
adverse effect on the business of Synutra.
(b) Synutra does not own, directly or indirectly, any capital stock,
equity or interest in any corporation, firm, partnership, joint venture or other
entity, other than the Subsidiaries as set forth in Item 3.1 of the Disclosure
Schedule. Each Subsidiary is wholly owned by Synutra, all the outstanding equity
interest in each Subsidiary are owned free and clear of all liens. There is no
contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling Synutra to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of any
kind convertible into or exchangeable for securities of Synutra.
(c) Synutra has all requisite power and authority to execute and
deliver this Agreement, and to consummate the transactions contemplated hereby
and thereby. Synutra has taken all corporate action necessary for the execution
and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and this Agreement
constitutes the valid and binding obligation of Synutra, enforceable against
Synutra in accordance with its terms, except as may be affected by bankruptcy,
insolvency, moratoria or other similar laws affecting the enforcement of
creditors' rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
3.2 No Conflicts or Defaults. The execution and delivery of this Agreement
by Synutra and the consummation of the transactions contemplated hereby do not
and shall not (a) contravene the governing documents of Synutra or any of the
Subsidiaries, or (b) with or without the giving of notice or the passage of
time, (i) violate, conflict with, or result in a breach of, or a default or loss
of rights under, any material covenant, agreement, mortgage, indenture, lease,
instrument, permit or license to which Synutra or any of the Subsidiaries is a
party or by which Synutra or any of the Subsidiaries or any of their respective
assets are bound, or any judgment, order or decree, or any law, rule or
regulation to which their assets are subject, (ii) result in the creation of, or
give any parry the right to create, any lien upon any of the assets of Synutra
or any of the Subsidiaries, (iii) terminate or give any parry the right to
terminate, amend, abandon. or refuse to perform any material agreement,
arrangement or commitment to which Synutra is a party or by which Synutra or any
of its assets are bound, or (iv) accelerate or modify, or give any party the
right to accelerate or modify, the time within which, or the terms under which
Synutra is to perform any duties or obligations or receive any rights or
benefits under any material agreement, arrangement or commitment to which it is
a party.
3.3 Capitalization. The authorized capital stock of Synutra immediately
prior to giving effect to the transactions contemplated hereby consists of
100,000 shares of common stock of which as of the date hereof there were 10,000
shares of Common Stock are issued and outstanding. Except as set forth herein,
all of the outstanding shares of Synutra are duly authorized, validly issued,
fully paid and nonassessable, and have not been or, with respect to Synutra
Shares, will not be transferred in violation of any rights of third parties. The
Synutra Shares are not subject to any preemptive or subscription right, any
voting trust agreement or other contract, agreement, arrangement, option,
warrant, call, commitment or other right of any character obligating or
entitling Synutra to issue, sell, redeem or repurchase any of its securities,
and there is no outstanding security of any kind convertible into or
exchangeable for Common Stock. All of the Synutra Shares are owned of record and
beneficially by the Sellers free and clear of any liens, claims, encumbrances,
or restrictions of any kind.
3.4 Taxes. Synutra has filed all returns and reports which were required to
be filed on or prior to the date hereof, and has paid all Taxes (and any related
penalties, fines and interest) which have become due pursuant to such returns or
reports or pursuant to any assessment which has become payable, or, to the
extent its liability for any Taxes (and any related penalties, fines and
interest) has not been fully discharged, the same have been properly reflected
as a liability on the books and records of Synutra and adequate reserves
therefore have been established. All such returns and reports filed on or prior
to the date hereof have been. properly prepared and are true, correct (and to
the extent such returns reflect judgments made by Synutra such judgments were
reasonable under the circumstances) and complete in all material respects.
Except as indicated in 3.4 of the Disclosure Schedule, no extension for the
filing of any such return or report is currently in effect. Except as indicated
in Item 3.4 of the Disclosure
Schedule, no tax return or tax return liability of Synutra has been audited or,
presently under audit. All taxes and any penalties, fines and interest which
have been asserted to be payable as a result of any audits have been paid.
Except as indicated in Item 3.4 of the Disclosure Schedule, Synutra has not
given or been requested to give waivers of any statute of limitations relating
to the payment of any Taxes (or any related penalties, fines and interest).
There are no claims pending for past due Taxes. Except as indicated in Item 3.4
of the Disclosure Statement, all payments for withholding taxes, unemployment
insurance and other amounts required to be paid for periods prior to the date
hereof to any governmental authority in respect of employment obligations of
Synutra have been paid or shall be paid prior to the Closing and have been duly
provided for on the books and records of Synutra and in the Synutra Financial
Statements.
3.5 Compliance with Law. Synutra and the Subsidiaries are conducting their
respective businesses in material compliance with all applicable law, ordinance,
rule, regulation, court or administrative order, decree or process, or any
requirement of insurance carriers material to its business. Neither Synutra nor
any Subsidiary has received any notice of violation or claimed violation of any
such law, ordinance, rule, regulation, order, decree, process or requirement.
3.6 Litigation.
(a) There is no claim, dispute, action, suit, proceeding or
investigation pending or threatened, against or affecting Synutra or any of the
Subsidiaries or challenging the validity or propriety of the transactions
contemplated by this Agreement, at law or in equity or admiralty or before any
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality, has any such claim, dispute, action, suit,
proceeding or investigation been pending or threatened, during the 12 month
period preceding the date hereof,
(b) there is no outstanding judgment, order, writ, ruling, injunction,
stipulation or decree of any court, arbitrator or federal, state, local, foreign
or other governmental authority, board, agency, commission or instrumentality,
against or materially affecting Synutra or any of the Subsidiaries; and
(c) neither Synutra nor any of the Subsidiaries has received any
written or verbal inquiry from any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality concerning
the possible violation of any law, rule or regulation or any matter disclosed in
respect of its business.
ARTICLE IV
REPRESENTATION AND WARRANTIES OF THE SELLERS
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Each Seller, severally, represents and warrants to the Company and the
Shareholder that now and/or as of the closing:
4.1 Title to Shares. Such Seller is the legal and beneficial owner of the
Synutra Shares to be transferred to the Company by such Seller, and upon
consummation of the exchange contemplated herein, the Company will acquire from
such Seller good and marketable title to such Shares, free and clear of all
Liens excepting only such restrictions upon transfer, if any, as maybe imposed
by Applicable Law.
4.2 Due Authorization. Each Seller has all requisite power and authority to
execute and deliver this Agreement, and to consummate the transactions
contemplated hereby and thereby. This Agreement constitutes the valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms, except as may be affected by bankruptcy, insolvency, moratoria or other
similar laws affecting the enforcement of creditors' rights generally and
subject to the qualification that the availability of equitable remedies is
subject to the discretion of the court before which any proceeding therefore may
be brought.
4.3 Purchase for Investment.
(a) Each Seller is acquiring the Company Shares for investment for
such Seller's own account and not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and such Seller has no present
intention of selling, granting any participation in, or otherwise distributing
the same. Each Seller further represents that he does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Company Shares.
(b) Each Seller understands that the Company Shares are not registered
under the Act on the ground that the sale and the issuance of securities
hereunder is exempt from registration under the Act pursuant to Section 4(2)
thereof, and that the Company's reliance on such exemption is predicated on such
Seller's representations set forth herein. Such Seller is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D under the Act.
4.4 Investment Experience. Each Seller acknowledges that he can bear the
economic risk of its investment, and has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the investment in the Company Shares.
4.5 Information. The Sellers have carefully reviewed such information as
each Seller deemed necessary to evaluate an investment in the Company Shares. To
the full satisfaction of each Seller, it has been furnished all materials that
it has requested relating to the Company and the issuance of the Company Shares
hereunder, and each Seller has been afforded the opportunity to ask questions of
representatives of the Company to obtain any information necessary to verify the
accuracy of any representations or information made or given to the Sellers.
Notwithstanding the foregoing, nothing herein shall derogate from or otherwise
modify the representations and warranties of the Company set forth in this
Agreement, on which each of the Sellers has relied in making an exchange of the
Synutra Shares for the Company Shares.
4.6 Restricted Securities. Each Seller understands that the Company Shares
may not be sold, transferred, or otherwise disposed of without registration
under the Act or an exemption there from, and that in the absence of an
effective registration statement covering the Company Shares or any available
exemption from registration under the Act, the Company Shares must be held
indefinitely. Each Seller is aware that the Company Shares may not be sold
pursuant to Rule 144 promulgated under the Act unless all of the conditions of
that Rule are met. Among the conditions for use of Rule 144 may be the
availability of current information to the public about the Company.
ARTICLE V
COVENANTS
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5.1 Further Assurances. Each of the Parties shall use its reasonable
commercial efforts to proceed promptly with the transactions contemplated
herein, to fulfill the conditions precedent for such parry's benefit or to cause
the same to be fulfilled and to execute such further documents and other papers
and perform such further acts as may be reasonably required or desirable to
carry out the provisions of this Agreement and to consummate the transactions
contemplated herein.
ARTICLE VI
DELIVERIES
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6.1 Items to be delivered to the Sellers prior to or at Closing by the
Company.
(a) Certificate of Incorporation and amendments thereto, By-laws and
amendments thereto, certificate of good standing in the Company's state of
incorporation;
(b) all applicable schedules hereto;
(c) all minutes and resolutions of board of director and shareholder
meetings in possession of the Company;
(d) shareholder list;
(e) all financial statements and all tax returns in possession of the
Company;
(f) resolution from the Company's Board appointing the designees of
the Sellers to the Company's Board of Directors;
(g) resolution from the Company's Board, and if applicable,
shareholder resolutions approving this transaction and authorizing the issuances
of the shares hereto;
(h) letters of resignation from the Company's current officers and
directors to be effective upon Closing and after the appointments described in
this section;
(i) certificates representing shares of the Company Shares issued in
the denominations as set forth opposite the respective names of Sellers and/or
their designees on Schedule I to this Agreement and the Financial Consultant;
(j) any other document reasonably requested by the Sellers that it
deems necessary for the consummation of this transaction.
6.2 Items to be delivered to the Company prior to or at Closing by Synutra
and the Sellers.
(a) all applicable schedules hereto;
(b) instructions from Synutra appointing its designees to the
Company's Board of Directors;
(c) share certificates and duly executed stock powers from the Sellers
transferring the number of Synutra Shares set forth opposite their respective
names on Schedule I to this Agreement to the Company:
(d) resolutions from the Board of Directors of Synutra, if applicable,
and shareholder resolutions approving the transactions contemplated hereby; and
(e) any other document reasonably requested by the Company that it
deems necessary for the consummation of this transaction.
ARTICLE VII
CONDITIONS PRECEDENT
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7.1 Conditions Precedent to Closing. The obligations of the Parties under
this Agreement shall be and are subject to fulfillment, prior to or at the
Closing, of each of the following conditions:
(a) That each of the representations and warranties of the Parties
contained herein shall be true and correct at the time of the Closing date as if
such representations and warranties were made at such time except for changes
permitted or contemplated by this Agreement.
(b) That the Parties shall have performed or complied with all
agreements, terms and conditions required by this Agreement to be performed or
complied with by them prior to or at the time of the Closing; and
(c) The Company shall have cancelled approximately 1,517,500 shares of
Common Stock owned by the Shareholder and/or his Affiliate(s).
(d) Xxxxx Xxxxx, Xxxxx Xxxxx and Xxxx Xxxxx will enter into a purchase
agreement to sell their shares as designated by WestPark Capital, Inc.
7.2 Conditions to Obligations of Sellers. The obligations of Sellers shall
be subject to fulfillment prior to or at the Closing, of each of the following
conditions:
(a) The Company shall have paid all of its the costs and expenses
associated with the acquisition of the Synutra Shares by the Company;
(b) the Company shall have received all of the regulatory, shareholder
and other third party consents, permits, approvals and authorizations necessary
to consummate the transactions contemplated by this Agreement; and
(c) the shares of the Company's Common Stock shall continue to be
traded on the Bulletin Board and the Company shall not have received any
notification materially adversely affecting such status. (a)
(d) The Company shall have complied with Rule 14(f)(1) of the Exchange
Act, if required.
7.3 Conditions to Obligations of the Company. The obligations of the
Company shall be subject to fulfillment at or prior to or at the Closing, of
each of the following conditions:
(a) Synutra and the Sellers shall have received all of the regulatory,
shareholder and other third party consents, permits, approvals and
authorizations necessary to consummate the transactions contemplated by this
Agreement.
ARTICLE VIII
INDEMNIFICATION
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8.1 Indemnity of the Company, Xxxxx and the Shareholder. The Company, Xxxxx
and the Shareholder severally agree as to defend, indemnify and hold harmless
each Seller from and against, and to reimburse each Seller with respect to, all
liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements (collectively the "Losses")
asserted against or incurred by such Seller by reason of, arising out of, or in
connection with any material breach of any representation or warranty contained
in this Agreement made by the Company or the Shareholder or in any document or
certificate delivered by the Company or the Shareholder pursuant to the
provisions of this Agreement or in connection with the transactions contemplated
thereby.
8.2 Indemnity of the Sellers. Each of the Sellers severally, agrees to
defend, indemnify and hold harmless the Company, Xxxxx and the Shareholder from
and against, and to reimburse the Company and the Shareholder with respect to,
all Losses, including, without limitation, reasonable attorneys' fees and
disbursements, asserted against or incurred by the Company, Xxxxx or the
Shareholder by reason of, arising out of, or in connection with any material
breach of any representation or warranty contained in this Agreement and made by
the applicable Seller or in any document or certificate delivered by the
applicable Seller pursuant to the provisions of this Agreement or in connection
with the transactions contemplated thereby, it being understood that each Seller
shall have responsibility hereunder only for the representations and warranties
made by such Seller.
8.3 Indemnification Procedure. A party (an "Indemnified Party") seeking
indemnification shall give prompt notice to the other party (the "Indemnifying
Party") of any claim for indemnification arising under this Article VIII. The
Indemnifying Party shall have the right to assume and to control the defense of
any such claim with counsel reasonably acceptable to such Indemnified Party, at
the Indemnifying Party's own cost and expense, including the cost and expense of
reasonable attorneys' fees and disbursements in connection with such defense, in
which event the Indemnifying Party shall not be obligated to pay the fees and
disbursements of separate counsel for such in such action. In the event,
however, that such Indemnified Party's legal counsel shall determine that
defenses may be available to such Indemnified Party that are different from or
in addition to those available to the Indemnifying Party, in that there could
reasonably be expected to be a conflict of interest if such Indemnifying Party
and the Indemnified Party have common counsel in any such proceeding, or if the
Indemnified Party has not assumed the defense of the action or proceedings, then
such Indemnifying Party may employ
separate counsel to represent or defend such Indemnified Party, and the
Indemnifying Party shall pay the reasonable fees and disbursements of counsel
for such Indemnified Party. No settlement of any such claim or payment in
connection with any such settlement shall be made without the prior consent of
the Indemnifying Parry which consent shall not be unreasonably withheld.
ARTICLE IX
TERMINATION
-----------
9.1 Termination. This Agreement may be terminated at any time before or, at
Closing, by:
(a) The mutual agreement of the Parties;
(b) Any party if-
(i) Any provision of this Agreement applicable to a party shall
be materially untrue or fail to be accomplished; or
(ii) Any legal proceeding shall have been instituted or shall be
imminently threatening to delay, restrain or prevent the consummation of this
Agreement;
(c) Upon termination of this Agreement for any reason, in accordance
with the terms and conditions set forth in this paragraph, each said party shall
bear all costs and expenses as each party has incurred.
ARTICLE X
COVENANTS SUBSEQUENT TO CLOSING
-------------------------------
Within thirty days after the Company has filed required financial
statements pursuant to Form 8-k, the Company shall file, at its expense, with
the U.S. Securities and Exchange Commission a registration statement covering
the resale of Common Shares owned by Financial Consultant, Westpark Capital and
their designees, the resale of which will be subject to (a) a leakage agreement
reasonably acceptable to the Company, and (b) the selling shareholders
depositing the Common Shares in a brokerage account with Westpark Capital.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 Survival of Representations, Warranties and Agreements. All
representations and warranties and statements made by a party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for two years. Each of the parties hereto is executing
and carrying out the provisions of this agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
agreement or at the closing of the transactions herein provided for and not upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
11.2 Access to Books and Records. During the course of this transaction
through Closing, each party agrees to make available for inspection all
corporate books, records and assets, and otherwise afford to each other and
their respective representatives, reasonable access to all documentation and
other information concerning the business, financial and legal conditions of
each other for the purpose of conducting a due diligence investigation thereof.
Such due diligence investigation shall be for the purpose of satisfying each
party as to the business, financial and legal condition of each other for the
purpose of determining the desirability of consummating the proposed
transaction. The Parties further agree to keep confidential and not use for
their own benefit, except in accordance with this Agreement any information or
documentation obtained in connection with any such investigation.
11.3 Further Assurances. If, at any time after the Closing, the parties
shall consider or be advised that any further deeds, assignments or assurances
in law or that any other things are necessary, desirable or proper to complete
the merger in accordance with the terms of this agreement or to vest, perfect or
confirm, of record or otherwise, the title to any property or rights of the
parties hereto, the Parties agree that their proper officers and directors shall
execute and deliver all such proper deeds, assignments and assurances in law and
do all things necessary, desirable or proper to vest, perfect or confirm title
to such property or rights and otherwise to carry out the purpose of this
Agreement, and that the proper officers and directors the parties are fully
authorized to take any and all such action.
11.4 Notice. All communications, notices, requests, consents or demands
given or required under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered to, or received by prepaid registered or
certified mail or recognized. overnight courier addressed to, or upon receipt of
a facsimile sent to, the party for whom intended, as follows, or to such other
address or facsimile number as may be furnished by such party by notice in the
manner provided herein:
Attention:
If to the Sellers and Synutra:
0000 Xxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxx Xxxxx
With a copy to:
Xxxx & Xxxxx
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to the Company, Xxxxx and the Shareholder
000-000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX V62 152
Attention: Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
11.5 Entire Agreement. This Agreement, the Disclosure Schedules and any
instruments and agreements to be executed pursuant to this Agreement, sets forth
the entire understanding of the parties hereto with respect to its subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
11.6 Successors and Assigns. This Agreement shall be binding upon,
enforceable against and inure to the benefit of, the parties hereto and their
respective heirs, administrators, executors, personal representatives,
successors and assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person. This Agreement may not be assigned by
any party hereto except with the prior written consent of the other parties,
which consent shall not be unreasonably withheld.
11.7 Governing Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of Delaware are applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles.
11.8 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
11.9 Construction. Headings contained in this Agreement are for convenience
only and shall not be used in the interpretation of this Agreement. References
herein. to Articles, Sections and Exhibits are to the articles, sections and
exhibits, respectively, of this Agreement. The Disclosure Schedule is hereby
incorporated herein by reference and made a part of this Agreement. As used
herein, the singular includes the plural, and the masculine, feminine and neuter
gender each includes the others where the context so indicates.
11.10 Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited, but only to the extent necessary to render such provision and this
Agreement enforceable.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first set forth above.
VORSATECH VENTURES, INC., a Delaware
corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: President
SYNUTRA, INC., a Illinois corporation
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxx
-------------------------------- -----------------------------------
Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxx
Title: President Title: Chairman
SELLERS:
Beams Power Investment Corporation
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
Title: President
Strong Gold Finance Corporation
By: /s/ Xxxxx Xx Bin
-----------------------------------
Name: Xxxxx Xx Bin
Title: President
XXXXX:
/s/ Xxxxxx Xxxxx
--------------------------------------
Xxxxxx Xxxxx
SHAREHOLDER:
Berlin Capital Investments, Inc.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: President
Witness:
FirstAlliance Financial Group, Inc. WestPark Capital Inc.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------- -----------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
SCHEDULEI
Name Number of Company Shares
----------------------------------- -------------------------------------
Beams Power Investment Corporation 36,000,000
Strong Gold Finance Corporation 10,000,000
ITEM 3.1
SUBSIDIARIES
Qingdao Shenyuan Dairy Company Limited
Qingdao Shengqiaozhi Dairy Company Limited
Zhangjiakou Shenyuan Dairy Company Limited
Beian Yipin Dairy Company Limited
Luobei Shenyuan Dairy Company Limited
Qingdao Baby Nutrition Research Company Limited
Table of Contents
-----------------
Page
----
ARTICLE I THE EXCHANGE....................................................1
1.1 The Exchange ...................................................1
1.2 Time and Place of Closing ......................................2
1.3 Effective Time .................................................2
1.4 Escrow .........................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE
COMPANY AND THE SHAREHOLDER ....................................2
2.1 Due Organization and Qualification; Due Authorization ..........2
2.2 No Conflicts orDefaults ........................................3
2.3 Capitalization .................................................3
2.4 Financial Statements............................................3
2.5 No Assets or Liabilities .......................................3
2.6 Taxes ..........................................................4
2.7 Indebtedness; Contracts; No Defaults ...........................4
2.8 Real Property ..................................................4
2.9 Compliance with Law.............................................4
2.10 Permits and Licenses ...........................................4
2.11 Litigation .....................................................4
2.12 Insurance ......................................................5
2.13 Patents; Trademarks mnd Intellectual Property Rights ...........5
2.14 Trading ........................................................5
2.15 Securities Law Compliance ......................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SYNUTRA ......................5
3.1 Due Organization and Qualification; Subsidiaries; Due
Authorization ..................................................5
3.2 No Conflicts or Defaults .......................................6
3.3 Capitalization .................................................6
3.4 Taxes ..........................................................6
3.5 Compliance with Law ............................................7
3.6 Litigation .....................................................7
ARTICLE IV REPRESENTATION AND WARRANTIES OF THE SELLERS....................7
4.1 Title to Shares.................................................7
4.2 Due Authorization ..............................................8
4.3 Purchase for Investment.........................................8
4.4 Investment Experience ..........................................8
4.5 Information ....................................................8
4.6 Restricted Securities...........................................8
i
Table of Contents
-----------------
(continued)
Page
----
ARTICLE V COVENANTS ......................................................9
5.1 Further Assurances .............................................9
ARTICLE VI DELIVERIES .....................................................9
6.1 Items to be delivered to the Sellers prior to or at
Closing by the Company .........................................9
6.2 Items to be delivered to the Company prior to or at
Closing by Synutra and the Sellers .............................9
ARTICLE VII CONDITIONS PRECEDENT ..........................................10
7.1 Conditions Precedent to Closing ...............................10
7.2 Conditions to Obligations of Sellers ..........................10
7.3 Conditions to Obligations of the Company ......................11
ARTICLE VIII INDEMNIFICATION ...............................................11
8.1 Indemnity of the Company, Xxxxx and the Shareholder ...........11
8.2 Indemnity of the Sellers ......................................11
8.3 Indemnification Procedure .....................................11
ARTICLE IX TERMINATION ...................................................12
9.1 Termination ...................................................12
ARTICLE X COVENANTS SUBSEQUENT TO CLOSING ...............................12
ARTICLE XI MISCELLANEOUS .................................................12
11.1 Survival of Representations, Warranties and Agreements ........12
11.2 Access to Books and Records ...................................13
11.3 Further Assurances ............................................13
11.4 Notice ........................................................13
11.5 Entire Agreement ..............................................14
11.6 Successors and Assigns ........................................14
11.7 Governing Law .................................................14
11.8 Counterparts ..................................................14
11.9 Construction ..................................................14
11.10 Severability ..................................................14
ii
