EXHIBIT 2.6
ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT ("Agreement") is entered into effective this 8th day
of April 2002, by and among Jupiter Enterprises, Inc. ("JPEN"), The MingHe Group
("MingHe"), and Yin Mingshan ("Mingshan").
RECITALS
WHEREAS, MingHe maintains a construction business in mainland China that
operates through several entities controlled by MingHe.
WHEREAS, JPEN desires to acquire the entire construction business of MingHe.
WHEREAS, Mingshan is the sole owner of MingHe.
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, the parties, each intending to be legally bound hereby, do promise and
agree as follows:
1. TERM AND CONDITIONS OF THE ACQUISITION.
1.1 JPEN shall form a wholly-owned subsidiary domiciled in Hong Kong
("JPEN Subsidiary") to acquire the entire construction business of MingHe, as
presently constituted, in exchange for thirty million shares of common stock of
JPEN, to be issued to Mingshan, the sole shareholder of MingHe.
1.2 JPEN has engaged, at its own expense, the accounting firm of BDO
International, Hong Kong, to audit the books and records of MingHe.
1.3 Closing shall take place promptly following completion of the
audit, at which time MingHe shall transfer its construction business assets to
the JPEN Subsidiary, in exchange for the shares of common stock of JPEN. At
Closing, each party shall deliver and execute such additional instruments and
documents, and make such representations or warranties and covenants as may, in
the reasonable opinion of counsel of each party, be required to complete the
transactions contemplated by this Agreement.
1.4 Each party shall undertake to obtain, prior to Closing, all
necessary governmental consents and approvals required in the Peoples' Republic
of China to complete the transfer of the construction business of MingHe and to
transfer title and legal ownership of all construction business assets.
2. AUTHORITY. Each party has the requisite authority to enter into and perform
its obligations under this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. Upon due execution and
delivery of this Agreement, this Agreement will constitute a valid, legal and
binding obligation of each of the parties enforceable against each of them in
accordance with the terms hereof.
3. DUE DILIGENCE. Each party shall furnish copies of all documents requested by
the other parties. No due diligence investigations undertaken by any party shall
in any event relieve the other parties of their responsibilities for the
accuracy and completeness of any
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representation or warranty, or the performance of any covenant or agreement
contained herein or provided at Closing.
4. RESTRICTIONS ON TRANSFER OF SHARES. The parties hereto acknowledge that all
securities transferred and/or issued by JPEN in connection with the transactions
contemplated hereby are restricted as to transfer and the certificates therefore
shall bear legends to such effect and no transfer of any shares may be effected,
except pursuant to an effective registration statement prepared and filed
pursuant to U.S. Securities laws or pursuant to an exemption from registration
thereunder, as evidenced by an opinion of counsel or as otherwise allowed under
the laws of descent and distribution.
2. NOTICES. Any notice required to be given pursuant to this Agreement shall be
in writing and mailed by express mail courier to the addresses set forth below:
JPEN: MingHe and Mingshan:
00 Xxx xx Xxxxxxxx, XX0000 0xx Xxxxx, Xx. 0 Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxxxxx Xxxxxxxx Xxxxxxxx, Xxxxxxx, X.X.X. 000000
3. GOVERNING LAW AND JURISDICTION. The parties agree that this Agreement and the
transactions contemplated hereby shall be construed and enforced in accordance
with the laws of the Peoples' Republic of China, and that any action or
proceeding that may be brought arising out of, in connection with or by reason
of this Agreement shall be brought only in a court of competent jurisdiction
within the city of Beijing, China.. Each of the parties hereto hereby submits,
unconditionally and irrevocably, to the jurisdiction to the aforesaid courts for
the purpose of any such lawsuits, agree to accept service of process by express
mail courier, and hereby waive any jurisdictional or venue defenses otherwise
available to it.
4. AGREEMENT BINDING ON SUCCESSORS. The provisions of the Agreement shall be
binding on and shall inure to the benefit of the parties hereto, and their legal
representatives, administrators, successors, and heirs.
5. WAIVER. No waiver by either party of any default shall be deemed as a waiver
of prior or subsequent default of the same or other provisions of this
Agreement.
6. UNDERTAKING AND FURTHER ASSURANCES. Each party to this Agreement shall
perform any and all acts and execute and deliver any and all documents as may be
necessary and proper under the circumstances in order to accomplish the intents
and purposes of this Agreement and to carry out its provisions.
7. INTERPRETATION AND FAIR CONSTRUCTION OF AGREEMENT. This Agreement has been
reviewed and approved by each of the parties. In the event it should be
determined that any provision of this Agreement is uncertain or ambiguous, the
language in all parts of this Agreement shall be in all cases construed as a
whole according to its fair meaning and not strictly construed for nor against
either party.
8. SEVERABILITY. If any term, clause, or provision hereof is held invalid or
unenforceable by a court of competent jurisdiction, such invalidity shall not
affect the validity or operation of any other term, clause, or provision and
such invalid term, clause, or provision shall be deemed to be severed from the
Agreement.
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9. MODIFICATION. This Agreement shall not be modified or amended except in
writing signed by the parties hereto and specifically referring to this
Agreement.
10. COSTS AND ATTORNEYS' FEES. If any party hereto shall bring any suit,
arbitration or other action against another for relief, declaratory or
otherwise, arising out of this Agreement, the substantially prevailing party
shall have and recover against the other party, in addition to all costs and
disbursements, such sum as the court or arbiter may determine to be a reasonable
attorney's fee.
11. WAIVER OF BREACH. The failure of any party hereto to insist upon strict
performance of any of the covenants and agreements herein contained, or to
exercise any option or right herein conferred, in any one or more instances,
shall not be construed to be a waiver or relinquishment of any such option or
right, or of any other covenants or agreements, but the same shall be and remain
in full force and effect.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties with respect to the entire subject matter hereof,
and there are no representations, inducements, promises or agreements, oral or
otherwise, not embodied herein. Any and all prior discussions, negotiations,
commitments and understandings relating thereto are merged herein. There are no
conditions precedent to the effectiveness of this Agreement other than as stated
herein, and there are no related collateral agreements existing between the
parties that are not referenced herein.
13. EXPENSES. All costs and expenses incurred by either party in negotiating
this Agreement or in consummating the transactions contemplated hereby, except
as provided herein, shall be paid by the party incurring such expenses.
14. HEADINGS. The section headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
15. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have each signed this Agreement effective on the date first set forth above.
JUPITER ENTERPRISES, INC.
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Xxxxxxx X.X. Xxxxxx, President
THE MINGHE-GROUP
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Yin Mingshan, Chairman
YIN MINGSHAN
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Yin Mingshan, individually
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