Exhibit 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into this
10th day of February 2007 by and among W-Candy, Inc., a Florida Corporation,
(hereinafter referred to as "W-Candy"), China Southern Bio-Pharma, Inc., a
Florida Corporation (hereinafter referred to as the "Company"), and Yongkang
Zhou, the CEO and sole shareholder of the Company (hereinafter referred to as
the "Shareholder").
RECITALS
A. The Shareholder owns 100% of the issued and outstanding shares of the
capital stock of the Company.
B. W-Candy is willing to acquire 100% of the issued and outstanding capital
stock of the Company, making the Company a subsidiary of W-Candy, and the
Shareholder desires to exchange 100% of his shares of the Company's capital
stock for certain amount of restricted shares of W-Candy, authorized but
unissued shares of Common Stock.
C. The Company is doing business in China and related territories through its
51% owned subsidiary, Yunann Hero Pharmaceutical Company, Limited, with an
address of
48 Dongfeng East Rd, Kantai Building A, Suite 702
Kunming Yunnan, China 650051
D. It is the intention of the parties hereto that: (i) W-Candy shall acquire
100% of the issued and outstanding capital stock of the Company in exchange
solely for certain 5,000,000 shares of W-Candy authorized but unissued Common
Stock set forth below (the "Exchange").
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
1. SECTION 1. EXCHANGE OF SHARES
1.1. Exchange of Shares. W-Candy and the Shareholder hereby agree that the
Shareholder shall, on or before February 13, 2007 (the "Closing Date"), exchange
100% of his issued and outstanding shares of the capital stock of the Company
(the "China Southern Shares") for the newly issued 5,000,000 shares of W-Candy
Common Stock, $.001 par value (the "W-Candy Shares").
1.2. Delivery of China Southern Shares. On the Closing Date, the Shareholder
will deliver to W-Candy the certificates representing 100% of the China Southern
Shares, duly endorsed (or with executed stock powers) so as to make W-Candy the
100% owner thereof. W-Candy will deliver to the Shareholder W-Candy Shares to be
delivered, upon the closing, to the Shareholder or as the shareholder direct so
as to make the Shareholder or their nominee the sole owner thereof.
1.3. Investment Intent. The newly issued shares of W-Candy common stock have not
been registered under the Securities Act of 1933, as Amended, and may not be
resold unless the W-Candy Shares are registered under the Act or an exemption
from such registration is available. The Shareholder represents and warrants
that he is acquiring the W-Candy Shares for his own account, for investment, and
not with a view to the sale or distribution of such Shares. Each certificate
representing the W-Candy Shares will have a legend thereon incorporating
language as follows:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"). The shares
have been acquired for investment and may not be sold or transferred in
the absence of an effective Registration Statement for the shares under
the Act unless in the opinion of counsel satisfactory to the Company,
registration is not required under the Act."
2. SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDER
The Company and the Shareholder hereby represent and warrant as follows:
2.1. Organization and Good Standing; Ownership of Shares. The Company and its
subsidiary are corporations duly organized, validly existing and in good
standing under the laws of Florida and China, and is entitled to own or lease
its properties and to carry on its business as and in the places where such
properties are now owned, leased or operated and such business is now conducted.
The Company is duly licensed or qualified and in good standing as a Florida and
its subsidiary as a Chinese company where the character of the properties owned
by it or the nature of the business transacted by it make such licenses or
qualifications necessary. There are no outstanding subscriptions, rights,
options, warrants or other agreements obligating either the Company or the
Shareholder to issue, sell or transfer any stock or other securities of the
Company.
2.2. Ownership of Capital Stock. The Shareholder is the beneficial owner of
record and beneficially of all of the shares of capital stock of the Company,
all of which shares are free and clear of all rights, claims, liens and
encumbrances, and have not been sold, pledged, assigned or otherwise transferred
except pursuant to this Agreement.
2.3. Financial Statements, Books and Records. There has been previously
delivered to W-Candy the audited balance sheet of the Company as of December 31,
2004 and December 31, 2005 (the "Balance Sheet") and unaudited balance sheet of
the Company as of September 30, 2006. The Balance Sheet is true and accurate and
fairly represents the financial position of the Company as at such date, and has
been prepared in accordance with generally accepted accounting principles
consistently applied.
2.4. No Material Adverse Changes. Since the date of the Balance Sheet there has
not been:
2.4.1. any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of the Company; 2.4.2. any
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of the Company,
whether or not covered by insurance; 2.4.3. any declaration, setting aside or
payment of any dividend or distribution with respect to any redemption or
repurchase of the Company's capital stock; 2.4.4. any sale of an asset (other
than in the ordinary course of business) or any mortgage or pledge by the
Company of any properties or assets; or 2.4.5. adoption of any pension, profit
sharing, retirement, stock bonus, stock option or similar plan or arrangement.
2.5. Taxes. The Company has prepared and filed all appropriate tax returns for
all periods prior to and through the date hereof for which any such returns have
been required to be filed by it and has paid all taxes shown to be due by said
returns or on any assessments received by it or has made adequate provision for
the payment thereof.
2.6. Compliance with Laws. The Company has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect the business of the
Company.
2.7. No Breach. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not:
2.7.1. violate any provision of the Articles of Incorporation or By-Laws of the
Company; 2.7.2. violate, conflict with or result in the breach of any of the
terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Company is a party or by or to which it or any of its assets or
properties may be bound or subject; 2.7.3. violate any order, judgment,
injunction, award or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, the Company, or upon the properties or
business of the Company; or 2.7.4. violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a materially adverse effect on the business or operations of the Company.
2.8. Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Company.
2.9. Tangible Assets. The Company has full title and interest in all machinery,
equipment, furniture, leasehold improvements, fixtures, vehicles, structures,
owned or leased by the Company, any related capitalized items or other tangible
property material to the business of the Company (the "Tangible Assets"). The
Company holds all rights, title and interest in all the Tangible Assets owned by
it on the Balance Sheet or acquired by it after the date of the Balance Sheet,
free and clear of all liens, pledges, mortgages, security interests, conditional
sales contracts or any other encumbrances. All of the Tangible Assets are in
good operating condition and repair taking into account the age of the tangible
assets and subject to fair wear and tear, and are usable in the ordinary course
of business of the Company and conform to all applicable laws, ordinances and
governmental orders, rules and regulations relating to their construction and
operation.
2.10. Liabilities. The Company does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, the Company will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Balance Sheet, except for Liabilities incurred in the ordinary course of
business.
2.11. Operations of the Company. From the date of the Balance Sheet on September
30, 2006 and through the Closing Date on February 1, 2007 hereof the Company
has not and will not have:
2.11.1. incurred any indebtedness for borrowed money;
2.11.2. declared or paid any dividend or declared or made any distribution of
any kind to any shareholder, or made any direct or indirect redemption,
retirement, purchase or other acquisition of any shares in its capital stock;
2.11.3. made any loan or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loan or
advance otherwise than in the ordinary course of business;
2.11.4. except in the ordinary course of business, incurred or assumed any
indebtedness or liability (whether or not currently due and payable);
2.11.5. disposed of any assets of the Company except in the ordinary course of
business; or
2.11.6. materially increased the annual rate of compensation of any executive
employee of the Company;
2.11.7. increased, terminated, amended or otherwise modified any plan
for the benefit of employees of the Company;
2.11.8. issued any equity securities or rights to acquire such equity
securities; or
2.11.9. except in the ordinary course of business, entered into or modified any
contract, agreement or transaction.
2.12. Capitalization. The company has 200,000,000 authorized shares with
5,000,000 shares issued.
2.13. Full Disclosure. No representation or warranty by the Company or the
Shareholder in this Agreement or in any document or schedule to be delivered by
them pursuant hereto, and no written statement, certificate or instrument
furnished or to be furnished to pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any fact necessary to make any statement herein or therein not materially
misleading or necessary to a complete and correct presentation of all material
aspects of the businesses of the Company.
2.14. Representations and Warranties on Closing Date. The representations and
warranties contained in this Section 2 shall be true and complete on the Closing
Date on February 1, 2007 with the same force and effect as though such
representations and warranties had been made on and as of the Closing Date.
3. SECTION 3. REPRESENTATIONS AND WARRANTIES OF W-Candy
W-Candy hereby represents and warrants to the Company and the
Shareholder as follows:
3.1. Organization and Good Standing. W-Candy is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida and
is entitled to own or lease its properties and to carry on its business as and
in the places where such properties are now owned, leased, or operated and such
business is now conducted. The authorized capital stock of W-Candy consists of
100,000,000 shares of Common Stock (Par Value $0.001), of which 1,626,000 shares
are presently issued and outstanding and 25,000,000 shares of preferred stock,
of which 1,000,000 shares are issued and outstanding. 1,000,000 shares of
preferred stock are convertible into 3,000,000 shares of W-Candy common stock.
W-Candy is duly licensed or qualified and in good standing as a Florida
corporation where the character of the properties owned by W-Candy or the nature
of the business transacted by it make such license or qualification necessary.
W-Candy does not have any subsidiaries.
3.2. The Shares. The W-Candy Shares to be issued to the Shareholder has been or
will have been duly authorized by all necessary corporate and stockholder
actions and, when so issued in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable.
3.3. Financial Statements; Books and Records. There has been previously
delivered to the Company, the unaudited balance sheet of as September 30, 2006
(the "Balance Sheet") and the related statements of operations for the periods
then ended (the "Financial Statements"). The Financial Statements are true and
accurate and fairly represent the financial position of the Company as at such
dates and the results of its operations for the periods then ended, and have
been prepared in accordance with generally accepted accounting principles
consistently applied.
3.4. No Material Adverse Changes. Since the date of the Balance Sheet on
September 30, 2006, there has not been:
3.4.1. any material adverse change in the assets, operations, condition
(financial or otherwise) or prospective business of W-Candy;
3.4.2. any damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of ,
whether or not covered by insurance;
3.4.3. any declaration, setting aside or payment of any dividend or
distribution with respect to any redemption or repurchase of W-Candy capital
stock;
3.4.4. any sale of an asset (other than in the ordinary course of
business) or any mortgage or pledge by W-Candy of any properties or assets; or
3.4.5. adoption of any pension, profit sharing, retirement, stock bonus, stock
option or similar plan or arrangement.
3.5. Taxes. W-Candy has prepared and filed all appropriate tax returns of every
kind and category (including, without limitation, income taxes, estimated taxes,
excise taxes, sales taxes, inventory taxes, use taxes, gross receipt taxes,
franchise taxes and property taxes) for all periods prior to and through the
date hereof for which any such returns have been required to be filed by it or
the failure to make such filings and resulting liability would not be material
relative to the results of operations of .W-Candy. W-Candy has paid all taxes
shown to be due by the said returns or on any assessments received by it or has
made adequate provision for the payment thereof.
3.6. Compliance with Laws. W-Candy has complied with all federal, state, county
and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to their businesses, including Federal
and State securities laws, which, if not complied with, would materially and
adversely affect the business of W-Candy or the trading market for the shares of
W-Candy Common Stock.
3.7. No Breach. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not:
3.7.1. violate any provision of the Articles of Incorporation or By-Laws of W
Candy;
3.7.2. violate, conflict with or result in the breach of any of the terms
of, result in a material modification of, otherwise give any other contracting
party the right to terminate, or constitute (or with notice or lapse of time or
both constitute) a default under, any contract or other agreement to which W
Candy is a party or by or to which it or any of its assets or properties may be
bound or subject;
3.7.3. violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, or upon
the properties or business of ; or
3.7.4. violate any statute, law or regulation of any jurisdiction applicable to
the transactions contemplated herein which could have a material adverse effect
on the business or operations of W-Candy .
3.8. Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving W-Candy.
3.9. Brokers or Finders. No broker's or finder's fee will be payable by W-Candy
in connection with the transactions contemplated by this Agreement, nor will any
such fee be incurred as a result of any actions by W-Candy.
3.10. Assets W-Candy has full title and interest in all machinery, equipment,
furniture, leasehold improvements, fixtures, vehicles, structures, owned or
leased by the Company, any related capitalized items or other tangible property
material to the business of the Company (the "Tangible Assets"). The Company
holds all rights, title and interest in all the Tangible Assets owned by it on
the Balance Sheet or acquired by it after the date of the Balance Sheet, free
and clear of all liens, pledges, mortgages, security interests, conditional
sales contracts or any other encumbrances. All of the Tangible Assets are in
good operating condition and repair taking into account the age of the tangible
assets and subject to fair wear and tear, and are usable in the ordinary course
of business of the Company and conform to all applicable laws, ordinances and
governmental orders, rules and regulations relating to their construction and
operation.
3.11. Liabilities. W-Candy does not have any direct or indirect indebtedness,
liability, claim, loss, damage, deficiency, obligation or responsibility, known
or unknown, fixed or unfixed, liquidated or unliquidated, secured or unsecured,
accrued or absolute, contingent or otherwise, including, without limitation, any
liability on account of taxes, any other governmental charge or lawsuit (all of
the foregoing collectively defined to as "Liabilities"), which were not fully,
fairly and adequately reflected on the Balance Sheet. As of the Closing Date, W
Candy will not have any Liabilities, other than Liabilities fully and adequately
reflected on the W-Candy Balance Sheet or balance sheet dated September 30,
2006, except for Liabilities incurred in the ordinary course of business.
3.12. Operations of W-Candy has. Except as set forth on Schedule 3.11
3.12.1. incurred any indebtedness for borrowed money;
3.12.2. declared or paid any dividend or declared or made any distribution of
any kind to any shareholder, or made any direct or indirect redemption,
retirement, purchase or other acquisition of any shares in its capital stock;
3.12.3. made any loan or advance to any shareholder, officer, director,
employee, consultant, agent or other representative or made any other loan or
advance otherwise than in the ordinary course of business; 3.12.4. except in the
ordinary course of business, incurred or assumed any indebtedness or liability
(whether or not currently due and payable); 3.12.5. disposed of any assets of W
Candy except in the ordinary course of business; or 3.12.6. materially increased
the annual level of compensation of any executive employee of W-Candy; 3.12.7.
increased, terminated amended or otherwise modified any plan for the benefit of
employees of W-Candy ; 3.12.8. issued any equity securities or rights to acquire
such equity securities; or 3.12.9. except in the ordinary course of business,
entered into or modified any contract, agreement or transaction.
3.13. Authority to Execute and Perform Agreements. W-Candy has the full legal
right and power and all authority and approval required to enter into, execute
and deliver this Agreement and to perform fully their obligations hereunder.
This Agreement has been duly executed and delivered and is the valid and binding
obligation of , enforceable in accordance with its terms, except as may be
limited by bankruptcy, moratorium, insolvency or other similar laws generally
affecting the enforcement of creditors' rights. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby and
the performance by this Agreement, in accordance with its respective terms and
conditions will not:
3.13.1. require the approval or consent of any governmental or regulatory body,
the Stockholders of , or the approval or consent of any other person;
3.13.2. conflict with or result in any breach or violation of any of the terms
and conditions of, or constitute (or with any notice or lapse of time or both
would constitute) a default under, any order, judgment or decree applicable to ,
or any instrument, contract or other agreement to which W-Candy is a party or by
or to which W-Candy is bound or subject; or
3.13.3. result in the creation of any lien or other encumbrance on the assets or
properties of W-Candy.
3.14. Delivery of Periodic Reports; Compliance with 1934 Act. W-Candy has
provided the Company and the Shareholder with financial statements. All reports
filed pursuant to such Act are complete and correct in all material respects.
All material contracts relative to W-Candy are included in the Periodic Reports.
All material contracts and commitments for the provision or receipt of services
or involving any obligation on the part of W-Candy are included as exhibits to
such periodic reports or are listed on Schedule 3.13 hereto.
3.15. Full Disclosure. No representation or warranty by in this Agreement or in
any document or schedule to be delivered by it pursuant hereto, and no written
statement, certificate or instrument furnished or to be furnished to the Company
or the Shareholders pursuant hereto or in connection with the execution or
performance of this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state any fact necessary to make any
statement herein or therein not materially misleading or necessary to a complete
and correct presentation of all material aspects of the business of W-Candy.
3.16. Representations and Warranties on Closing Date. The representations and
warranties contained in this Section 3 shall be true and complete on the Closing
Date with the same force and effect as through such representations and
warranties had been made on and as of the Closing Date on February 13, 2007.
4. SECTION 4. COVENANTS OF COMPANY AND SHAREHOLDER
4.1. The Company and the Shareholder covenant to W-Candy as follows:
4.2. Conduct of Business. From the date hereof through the Closing Date, the
Shareholder and The Company shall conduct its business in the ordinary course.
4.3. Preservation of Business. From the date September 30, 2006 through the
Closing Date, the Shareholder and the Company shall use its best efforts to
preserve its business organization intact, keep available the services of its
present employees, consultants and agents, maintain its present suppliers and
customers and preserve its goodwill.
4.4. Litigation. The Company shall promptly notify W-Candy of any lawsuits,
claims, proceedings or investigations which after the date hereof are threatened
or commenced against the Company or against any officer, director, employee,
consultant, agent, shareholder or other representative with respect to the
affairs of the Company.
4.5. Continued Effectiveness of Representations and Warranties. From the date
hereof through the Closing Date, the Shareholder and the Company shall conduct
its business in such a manner so that the representations and warranties
contained in Section 2 shall continue to be true and correct on and as of the
Closing Date and as if made on and as of the Closing Date, and shall:
4.5.1. promptly give notice to W-Candy of any event, condition or circumstance
occurring from the date hereof through the Closing Date which would render any
of the representations or warranties materially untrue, incomplete, insufficient
or constitute a violation or breach of this Agreement; and
4.5.2. supplement the information contained herein in order that the information
contained herein is kept current, complete and accurate in all material
respects.
5. SECTION 5. COVENANTS OF W-Candy
W-Candy covenants to the Company and the Shareholder as follows:
5.1. Conduct of Business. From the date hereof through the Closing Date, W-Candy
shall conduct its business in the ordinary course and, without the prior written
consent of the Company, shall ensure that W-Candy does not undertake any of the
actions specified in Section 3.12 hereof.
5.2. Preservation of Business. From the date hereof through the Closing Date, W
Candy shall preserve its business organization intact and use its best efforts
to preserve goodwill.
5.3. Litigation. W-Candy shall promptly notify the Company of any lawsuits,
claims, proceedings or investigations that after the date hereof are threatened
or commenced against W-Candy or against any officer, director, employee,
consultant, agent, or stockholder with respect to the affairs of W-Candy.
5.4. Continued Effectiveness of Representations and Warranties. From the date
hereof through the Closing Date, W-Candy shall conduct its business in such a
manner so that the representations and warranties contained in Section 3 shall
continue to be true and correct on and as of the Closing Date and as if made on
and as of the Closing Date, and shall:
5.4.1. promptly give notice to the Company of any event, condition or
circumstance occurring from the date hereof through the Closing Date which would
render any of the representations or warranties materially untrue, incomplete,
insufficient or constitute a violation or breach of this Agreement; and 5.4.2.
supplement the information contained herein in order that the information
contained herein is kept current, complete and accurate in all material
respects.
6. SECTION 6. COVENANTS
6.1. Corporate Examinations and Investigations. Prior to the Closing Date, the
parties acknowledge that they have been entitled, through their employees and
representatives, to make such investigation of the assets, properties, business
and operations, books, records and financial condition of the other as they each
may reasonably require. No investigation by a party hereto shall, however,
diminish or waive in any way any of the representations, warranties, covenants
or agreements of the other party under this Agreement.
6.2. Expenses. Each party hereto agrees to pay its own costs and expenses
incurred in negotiating this Agreement and consummating the transactions
described herein.
6.3. Further Assurances. The parties shall execute such documents and other
papers and take such further actions as may be reasonably required or desirable
to carry out the provisions hereof and the transactions contemplated hereby.
Each such party shall use its best efforts to fulfill or obtain the fulfillment
of the conditions to the Closing on July 1, 2005, including, without limitation,
the execution and delivery of any documents or other papers, the execution and
delivery of which are necessary or appropriate to the Closing.
6.4. Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith for
a period of one (1) year from the date hereof; provided, however, such
obligation shall not apply to information which:
6.4.1. at the time of disclosure was public knowledge;
6.4.2. after the time of disclosure becomes public knowledge (except due to the
action of the receiving party); 6.4.3. the receiving party had within its
possession at the time of disclosure. 6.4.4. the disclosure of which is required
by law, the SEC or other competent authority; 6.4.5. which at the time of
disclosure by one party written consents have been obtained from the other
parties.
7. SECTION 7. CONDITIONS PRECEDENT TO THE OBLIGATION OF W-Candy TO CLOSE
The obligation of W-Candy to enter into and complete the Agreement is
subject to the fulfillment on or prior to the Closing Date of the following
conditions, any one or more of which may be waived by W-Candy in writing.
7.1. Representations and Covenants. The representations and warranties of the
Company and the Shareholders contained in this Agreement shall be true in all
material respects on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date. The Company and the Shareholder
shall have performed and complied in all material respects with all covenants
and agreements required by this Agreement to be performed or complied with by
the Company and the Shareholders on or prior to the Closing Date. The Company
and the Shareholder shall have delivered to W-Candy, if requested, a
certificate, dated the Closing Date, to the foregoing effect.
7.2. Governmental Permits and Approvals; Corporate Resolutions. Any and all
permits and approvals from any governmental or regulatory body required for the
lawful consummation of the Closing shall have been obtained. The Board of
Directors of the Company shall have approved the transactions contemplated by
this Agreement and the Company shall have delivered to W-Candy, if requested by
W-Candy, resolutions by its Board of Directors, certified by the Secretary of
the Company, authorizing the transactions contemplated by this Agreement.
7.3. Satisfactory Business Review. W-Candy shall have satisfied itself, after W
Candy and its representatives have completed the review of the business of the
Company contemplated by this Agreement, that none of the information revealed
thereby or in the Balance Sheet has resulted in, or in the reasonable opinion of
may result in, a material adverse change in the assets, properties, business,
operations or condition (financial or otherwise) of the Company.
7.4. Stock Certificates: At the Closing, W-Candy will deliver the certificates
representing the W-Candy Shares, duly endorsed (or with executed stock powers)
so as to make China Southern an approximately 75% owner of W-Candy, Inc. within
10 business days of the Closing Date.
7.5. Other Documents. The Company and the Shareholder shall have delivered such
other documents, instruments and certificates, if any, as are required to be
delivered pursuant to the provisions of this Agreement or which may be
reasonably requested in furtherance of the provisions of this Agreement.
8. SECTION 8. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY AND
SHAREHOLDER TO CLOSE
The obligation of the Company and the Shareholder to enter into and
complete the agreement is subject to the fulfillment on or prior to the Closing
Date of the following conditions, any one or more of which may be waived in
writing by the Company.
8.1. Representations and Covenants. The representations and warranties of the
Company contained in this Agreement shall be true in all material respects on
the Closing Date with the same force and effect as though made on and as of the
Closing Date. the Company shall have performed and complied with all covenants
and agreements required by the Agreement to be performed or complied with by the
Company on or prior to the Closing Date.
8.2. Governmental Permits and Approvals; Corporate Resolutions. Any and all
permits and approvals from any governmental or regulatory body required for the
lawful consummation of the Agreement shall have been obtained. The Board of
Directors of the Company shall have approved the transactions contemplated by
this Agreement.
8.3. Litigation. No action, suit or proceeding shall have been instituted before
any court or governmental or regulatory body or instituted or threatened by any
governmental or regulatory body to restrain, modify or prevent the carrying out
of the transactions contemplated hereby or to seek damages or a discovery order
in connection with such transactions, or which has or may in the reasonable
opinion of the Company and the Shareholder, have a materially adverse effect on
the assets, properties, business, operations or condition (financial or
otherwise) of W-Candy.
9. SECTION 9. INDEMNIFICATION
9.1. Obligation of W-Candy to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 3, W-Candy
hereby agrees to indemnify, defend and hold harmless the Company and the
Shareholder from and against any losses, liabilities, damages, deficiencies,
costs or expenses (including interest, penalties and reasonable attorneys' fees
and disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of W-Candy contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement.
9.2. Obligation of the Company and the Shareholder to Indemnify. Subject to the
limitations on the survival of representations and warranties contained in
Section 2, the Company and the Shareholder agree to indemnify, defend and hold
harmless W-Candy from and against any Loss, based upon, arising out of or
otherwise due to any inaccuracy in or any breach of any representation,
warranty, covenant or agreement made by any of them and contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
10. SECTION 10. THE CLOSING
10.1. The closing is expected to take place on or before February 16, 2007 (the
"Closing Date"). At closing, the parties shall provide each other with such
documents as may be necessary or appropriate in order to consummate the
transactions contemplated hereby including evidence of due authorization of the
Agreement and the transactions contemplated hereby.
11. SECTION 11. MISCELLANEOUS
11.1. Waivers. The waiver of a breach of this Agreement or the failure of any
party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
11.2. Amendment. This Agreement may be amended or modified only by an instrument
of equal formality signed by the parties or the duly authorized representatives
of the respective parties.
11.3. Assignment. This Agreement is not assignable except by operation of law.
11.4. Notices. Until otherwise specified in writing, the mailing addresses of
both parties of this Agreement shall be as follows:
W-Candy: China Southern and Shareholder:
00000 Xxxxxx Xxxx Xxxx, 148 Dongfeng East Rd, Kantai Building A, Xxxxx 000
Xxxx Xxxxx, XX 00000 Kunming, Xxxxxx, Xxxxx 000000
Tel: 000-000-0000 PHONE: 00-000-0000000
FAX: 00-000-0000000
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address that shall have been furnished in
writing to the addressor.
11.5. Governing Law. This Agreement shall be construed, and the legal relations
between the parties determined, in accordance with the laws of the State of
Florida, thereby precluding any choice of law rules which may direct the
applicable of the laws of any other jurisdiction.
11.6. Entire Agreement. This Agreement and the collateral agreements executed in
connection with the consummation of the transactions contemplated herein contain
the entire agreement among the parties with respect to the purchase and issuance
of the Genesis' Shares and the W-Candy Shares and related transactions, and
supersede all prior agreements, written or oral, with respect thereto.
11.7. Headings. The headings in this Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
11.8. Severability of Provisions. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
11.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
W-Candy, Inc. China Southern Bio-Pharma, Inc.
/s/ Xxxxx Xxxxxxxx 2/13/2007 /s/ Yongkang Zhou, 2/13/2007
-------------------- ----------- ---------------------- -----------
(sign name) Date (sign name) Date
Xxxxx Xxxxxxxx, CEO & Chairman Yongkang Zhou, CEO & Chairman
-------------------------------- -----------------------------------
(print name) (print name)
