STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of July 14,
1998, by MILLENNIA, INC., a Delaware corporation ("IA"), OMNI DOORS, INC., a
Florida corporation (the " Public Company"), and CHINA ECONOMIC GROWTH
INVESTMENT CORP., LLC, a Delaware corporation ("CEGI").
RECITALS:
A. CEGI intends to acquire 51% to 100% of the stock of a corporation organized
under the laws of the People's Republic of China (the "Operating Company") and
desires that the Operating Company be merged with a publicly held corporation
whose stock is registered to be traded in the United States of America.
B. IA currently owns 10,830,000 (approximately ninety five percent (95%)) of the
issued and outstanding shares of the common stock of the Public Company, a
corporation that currently has approximately 1000 stockholders (including those
of record and those who hold their shares in street name) and is subject to the
reporting requirements of the Securities and Exchange Act of 0000 (xxx "Xxxxxxxx
Xxx").
C. IA has agreed to sell 10,260,000 shares of the Public Company's common stock
(herein the "Purchased Shares") which it now owns (the "Public Company Common
Stock") to CEGI, which shares will, at the time of sale, represent approximately
ninety percent (90%) of the Public Company's issued and outstanding Common
Stock.
D. CEGI will pay IA the sum of US$135,000 for the Purchased Shares at the
Closing (hereinafter defined).
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
parties hereto agree as follows:
1. Special Obligations of CEGI. Based upon the representations,
warranties and covenants made by IA and the Public Company in this Agreement and
subject to the terms and conditions of this Agreement, CEGI covenants and agrees
as follows:
a. Acquisition of Operating Company. Within twelve (12) months
after the date of this Agreement, CEGI will acquire between 51% and
100% of the outstanding equity securities of Operating Company (the
"Operating Company Stock") which has available at least two full years
of financial statements that have been audited in accordance with
United States GAAP and which indicate that the Operating Company would
meet all of the qualifications to have its shares listed either on the
New York Stock Exchange, the American Stock Exchange, or NASDAQ.
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b. Performance Escrow. To secure the obligations of CEGI under
this Agreement, simultaneously with the Closing, CEGI will deposit a
stock certificate, accompanied bya blank stock power, representing
513,000 shares of Public Company Common Stock, which shall be
registered in the name of CEGI and shall represent five percent (5%)
of the Purchased Shares (herein the "Deposit") in escrow with
Securities Transfer Corporation, a Texas corporation, under an escrow
agreement in form and substance mutually satisfactory to IA and CEGI.
This escrow agreement shall provide that the Deposit shall be released
either (i) to IA in the event that the Merger (defined as the merger
of the Operating Company selected by CEGI with the Public Company)
shall not have occurred within twelve (12) months after the date of
the Closing and the failure for the Merger to have occurred is due to
a material breach of this Agreement by CEGI or (ii) to CEGI if the
Merger shall have occurred within twelve (12) months of the date of
the Closing or if the failure for the Merger to have occurred is due
to a material breach of this Agreement by IA or the Public Company.
2. Sale of the Purchased Shares. Based upon the representations,
warranties and covenants of the parties contained herein and subject to the
terms and conditions of this Agreement, at the Closing which shall be at a place
to be mutually agreed upon by IA and CEGI and which shall occur on or before
July 15,1998 (herein called the "Closing"):
a. IA shall transfer and convey to CEGI, free and clear of all
adverse claims, security interests, liens, claims and encumbrances
(other than restrictions under state and federal securities laws),
stock certificates representing the Purchased Shares registered in the
name of CEGI; and
b. CEGI shall pay to IA in immediately available funds the sum of
US$135,000.
3. Covenants of IA. Based upon the representations, warranties and
covenants made by the Public Company and CEGI in this Agreement and subject to
the terms and conditions of this Agreement, IA covenants and agrees with CEGI
and the Public Company as follows:
a. IA will cooperate with the Public Company and CEGI by
providing all necessary information which it has regarding the Merger
and/or the Public Company's reporting responsibilities under the
Federal securities laws and any other state or federal laws applicable
thereto.
b. IA also covenants and agrees that it will take all appropriate
and necessary steps to cause all of the assets and liabilities of the
Public Company to be transferred to another subsidiary of IA prior to
the Closing so that at the time of the Closing the Public Company will
have no assets or liabilities of any kind. IA further agrees that, if
for any reason any of the Public Company's liabilities cannot be
transferred, it will cause the same to be indemnified to the
satisfaction of CEGI. IA also pledges that it will indemnify CEGI
against any loss resulting directly from its ownership of the
Purchased Shares and the existence of any contingent or hidden
liabilities of the Public Company that are discovered by CEGI after
the Closing but which were in existence as of the date of the Closing.
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c. If any of the minority shareholders of the Public Company
tender their shares for purchase as contemplated by paragraph 7.m.
hereof, at CEGI's election, IA will purchase those shares.
4. Covenants of the Public Company. Based upon the representations,
warranties and covenants made by IA and CEGI in this Agreement and subject to
the terms and conditions of this Agreement, the Public Company covenants and
agrees with IA and CEGI as follows:
a. Information. The Public Company shall provide CEGI with any
and all information requested in connection with the preparation and
filing of any reports or other documents which may be filed with the
Securities and Exchange Commission or other governmental bodies having
authority over the Public Company and any necessary amendments
thereto, including without limitation audited consolidated financial
statements of the Public Company prepared in accordance with the
requirements of Regulation S-X under the Securities Act of 1933 (the
"Securities Act").
b. Compliance with Securities Laws. As long as the Public Company
is a reporting company under the Exchange Act, the Public Company will
comply with the Securities Act, the Exchange Act, the rules and
regulations of the National Association of Securities Dealers, Inc.
(the "NASD"), applicable state securities or Blue Sky laws and any
national securities exchange or quotation system on which any class of
securities of the Public Company is listed or traded so as to permit
the continuance of sales of and dealings in shares of Public Company
Common Stock, under the Securities Act, the Exchange Act, the rules
and regulations of the NASD, applicable state securities or Blue Sky
laws and any national securities exchange or quotation system on which
any class of securities of the Public Company is listed or traded,
including the filing with the NASD and the SEC of all reports required
to be filed pursuant to the applicable provisions of the rules and
regulations of the NASD, the Securities Act and the Exchange Act, and
will deliver to all holders of Public Company Common Stock all reports
required to be provided to such holders pursuant to the applicable
provisions of the rules and regulations of the NASD, the Securities
Act, the Exchange Act and applicable state securities or Blue Sky laws
and any national securities exchange or quotation system on which any
class of securities of the Public Company is listed or traded.
c. Transfer Agent. For a period of at least one year after the
Closing, the Public Company agrees that Securities Transfer
Corporation ("STC") will remain the Public Company's transfer agent.
After that one year period, whether this engagement will be continued
will be determined by a review process made annually by CEGI at its
sole discretion on the professionalism, quality, pricing and other
aspects of STC's perfomance as transfer agent.
5. Covenants of CEGI. Based upon the representations, warranties and
covenants made by IA and the Public Company in this Agreement and subject to the
terms and conditions of this Agreement, CEGI covenants and agrees with IA and
the Public Company that it will cooperate with and supply such information as
may be reasonably requested by either in connection with the Merger and/or the
Public Company's reporting requirements pursuant to the Federal securities laws.
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CEGI also covenants and agrees that at no time prior to August 1, 1999 will it
take any action or permit the Public Company to take any action which would have
the effect or result of diluting IA's ownership position in the Public Company,
including but not limited to a reverse split or any other strategy whereby IA's
ownership position in the Public Company shall represent less than five percent
(5%) of the total then outstanding.
CEGI also covenants and agrees that it will take all steps necessary to ensure
that the Public Company meets all of the requirements of the Exchange Act,
including but not limited to filling all required reports with the Securities
and Exchange Commission.
6. Representations and Warranties of IA. IA hereby represents and
warrants to CEGI and the Public Company as follows:
a. Existence; Good Standing. IA is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. IA has all requisite power and authority (corporate and
other), to conduct its business as currently conducted.
b. Power and Authority. IA has the full right, power and
authority (corporate and other) to enter into this Agreement and to
perform its obligations hereunder. This Agreement has been duly
executed and delivered by IA and is a legal, valid and binding
obligation of IA, enforceable against IA in accordance with its terms,
except to the extent that (i) enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights and remedies
generally; (ii) the availability of equitable remedies may be limited
by principles of equity; and (iii) rights to indemnification may be
limited by public policy relating to state and federal securities
laws.
c. No Violations. The execution, delivery and performance of this
Agreement, and the consummation by IA of the transactions contemplated
hereby, will not (i) result in a breach or violation of any of the
terms and provisions of, or constitute a default (or an event that
with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or asset of IA pursuant to the terms of
any contract, indenture, mortgage, loan agreement, note, bond,
debenture, other evidence of indebtedness, lease, permit or other
agreement, arrangement or understanding to which IA is a party or to
which IA or any of its assets is subject, which breach, violation,
default, lien, charge or encumbrance would prevent or adversely affect
in any material respect the transactions contemplated by this
Agreement; (ii) violate any provisions of the Articles of
Incorporation or Bylaws of IA; or (iii) violate any federal, state or
local law, rule, regulation, ordinance or court decree or other order
of any court or governmental or regulatory agency or body having
jurisdiction over IA or any of its assets.
d, Ownership of the Public Company. IA currently owns, free and
clear of any adverse claims, liens, security interests or similar
charges 10,830,000 shares of the issued and outstanding shares of
Public Company Common Stock.
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e. Representations by the Public Company. Each of the
representations of the Public Company set forth in Section 7 are
accurate.
f. No Misstatements or Omissions. No representations or
warranties by the Public Company in this Agreement and no statement
contained in any document, including without limitation the Public
Company Financial Statements, certificate or other writing furnished
or to be furnished by the Public Company or any of its representatives
pursuant to the provisions of this Agreement or in connection with the
transactions contemplated hereby contained or will contain any untrue
statement of material fact or omits or will omit to state any material
fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not
misleading.
7. Representations and Warranties of the Public Company. The Public
Company hereby represents and warrants to CEGI and IA as follows:
a. Existence; Good Standing. The Public Company is a corporation
duly organized, validly existing and in good standing under the laws
of the State of Florida. The Public Company has all requisite power
and authority (corporate and other), to conduct its business as
currently conducted.
b. Power and Authority. The Public Company has the full right,
power and authority (corporate and other) to enter into this Agreement
and to perform its obligations hereunder. This Agreement has been duly
authorized by all necessary corporate action on the part of the Public
Company. This Agreement has been duly executed and delivered by the
Public Company and is a legal, valid and binding obligation of the
Public Company, enforceable against the Public Company in accordance
with its terms, except to the extent that (i) enforcement may be
limited by applicable bankruptcy; insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors' rights
and remedies generally; (ii) the availability of equitable remedies
may be limited by principles of equity; and (iii) rights to
indemnification may be limited by public policy relating to state and
federal securities laws.
c. No Violations. The execution, delivery and performance of
this Agreement, and the consummation by the Public Company of the
transactions contemplated hereby, will not (i) result in a breach or
violation of any of the terms and provisions of, or constitute a
default (or an event that with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or asset of the
Public Company pursuant to the terms of any contract, indenture,
mortgage, loan agreement, note, bond, debenture, other evidence of
indebtedness, lease, permit or other agreement, arrangement or
understanding to which the Public Company is a party or to which the
Public Company or any of its assets is subject, which breach,
violation, default, lien, charge or encumbrance would prevent or
adversely affect in any material respect the transactions contemplated
by this Agreement; (ii) violate any provisions of the charter or bylaws
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of the Public Company; or (iii) violate any federal, state or local
law, rule, regulation, ordinance or court decree or other order of any
court or governmental or regulatory agency or body having jurisdiction
over the Public Company or any of its assets.
d. Capitalization. As of the execution date of this Agreement and
the Closing, the authorized capital stock of the Public Company
consists of 25,000,000 shares of Public Company Common Stock, of which
11,400,000 shares are issued and outstanding. All of the issued and
outstanding shares of Public Company Common Stock are duly authorized,
validly issued, fully paid and nonassessable. At the Closing CEGI
shall receive a complete stockholders list for the Public Company,
including information regarding all of the stockholders of record
(this list shall indicate names, addresses, and the number of shares
owned by each stockholder as of a date not more than ten (10) days
prior to the Closing). The Public Company is not a party to or bound
by, nor does it have any knowledge of, any agreement, arrangement,
contract, obligation, commitment or understanding of any character,
whether written or oral, express or implied, relating to the sale,
assignment, encumbrance, conveyance, transfer or delivery of any
capital stock of the Public Company except for IA's agreement to sell
the Purchased Shares to CEGI as set forth in this Agreement. The
Public Company has no subsidiaries and does not own beneficially or of
record any of the securities of any other entity. As of the Closing,
CEGI will become the owner of the Purchased Shares, which will
constitute approximately 90% of the issued and outstanding Public
Company Common Stock. The Public Company has at least 1000
shareholders (including street name holders).
e. Documents Genuine. All originals and/or copies of the Public
Company's charter and bylaws, each amended to date, and all minutes of
meetings and written consents in lieu of meetings of shareholders,
directors and committees of directors of the Public Company, financial
data, and any and all other documents, material, data, files, or
information which have been or will be furnished to CEGI are true,
complete, correct and unmodified originals and/or copies of such
documents, information, data, files or material.
f. Restrictive Covenants. Prior to the Closing, the Public
Company shall conduct its business in the ordinary and usual course
and in compliance with all applicable laws, rules, and regulations.
Furthermore, the Public Company will not, without the prior written
consent of CEGI, (i) make any changes in its capital structure, (ii)
declare or pay any dividend or make any other distribution with
respect to its capital stock, (iii) issue, sell or deliver or purchase
or otherwise acquire for value any of its capital stock, or (iv) issue
any options to purchase its capital stock.
g. Financial Statements. The Public Company has delivered to CEGI
copies of the audited balance sheet of the Public Company as of June
30, 1997, together with the related audited statements of operations,
retained earnings and cash flows for the fiscal year ended on that
date, and the notes thereto, accompanied by the reports thereon of the
Public Company's independent public accountants, as well as the
unaudited balance sheet and statement of earnings for the six months
ended December 31, 1997 (the "Public Company Financial Statements").
The Public Company Financial Statements, including the notes thereto,
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(i) were prepared in accordance with generally accepted accounting
principles applied on a consistent basis ("GAAP") throughout the
periods covered thereby, (ii) present fairly in all material respects
the financial position, results of operations and changes in cash
flows of the Public Company as of their respective dates and for the
periods then ended, and (iii) have been audited in accordance with
generally accepted auditing standards. The Public Company will have no
assets or liabilities of any kind or nature as of the Closing.
h. No Proceedings. There are no legal, governmental or regulatory
proceedings, actions or suits pending to which the Public Company is a
party or, to the knowledge of the Public Company, any of its officers
and directors in their capacity as such is a party, or with respect to
which any property of the Public Company is the subject that, if
determined adversely, would, individually or in the aggregate, have a
material adverse effect on the Public Company or materially interfere
with the ability of the Public Company to perform its obligations
under this Agreement and, to the knowledge of the Public Company, no
such proceedings are threatened or contemplated by others against the
Public Company, nor does the Public Company have any reason to believe
that there is any basis therefor. The Public Company is not subject to
any injunction, judgment, decree or order of any court, regulatory
body, administrative agency or other governmental body or forum that
would have a material adverse effect on the Public Company.
i. Tax Matters. There is no income, sales, use, salary, wage,
employee, withholding, franchise, transfer or other tax deficiency or
assessment of any nature whatsoever which has been or might reasonably
be expected to be asserted or threatened against the Public Company
that could have a material adverse affect on the Public Company. The
provisions for income taxes payable, if any, shown on the Public
Company Financial Statements are sufficient for all accrued and unpaid
foreign and domestic taxes, whether or not disputed, and for all
periods to and including the dates of such Public Company Financial
Statements.
j. SEC Filings. The Public Company has timely filed all forms,
reports and documents required to be filed by the Public Company with
the SEC (the "Public Company SEC Reports"). The Public Company SEC
Reports were prepared in accordance with the requirements of the
Securities Act and the Exchange Act, as the case may be, and the rules
and regulations thereunder and did not, at the time they were filed
(or on the effective date thereof, in the case of any registration
statement), contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
k. No Misstatements or Omissions. No representations or
warranties by the Public Company in this Agreement and no statement
contained in any document, including without limitation the Public
Company Financial Statements, certificate or other writing furnished
or to be furnished by the Public Company or any of its representatives
pursuant to the provision of this Agreement or in connection with the
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transactions contemplated hereby contained or will contain any untrue
statement of material fact or omits or will omit to state any material
fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not
misleading.
1. Employee Matters. The Public Company has no employees, and no
former employees have any rights or claims with respect to their
termination from the Public Company. The Public Company has no Plan,
and has never had any Plan, under the ERISA law.
m. Minority Shareholder Rights. None of the minority shareholders
of the Public Company have any rights or claims with respect to the
transfer of the Public Company's assets to a wholly owned subsidiary
of IA except the right to tender their shares to the Public Company
for purchase.
8. Representations and Warranties of CEGI. CEGI hereby represents and
warrants to IA and the Public Company as follows:
a. Existence; Good Standing. CEGI is a corporation duly
organized, validly existing and in good standing under the laws of the
state of Delaware. CEGI has all requisite power and authority
(corporate and other), to conduct its business as currently conducted.
b. Power and Authority. CEGI has the full right, power and
authority (corporate and other) to enter into this Agreement and to
perform its obligations hereunder. This Agreement has been duly
authorized by all necessary corporate and shareholder action on the
part of the Public Company. This Agreement has been duly executed and
delivered by CEGI and is a legal, valid and binding obligation of
CEGI, enforceable against CEGI in accordance with its terms, except to
the extent that (i) enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors' rights and remedies
generally; (ii) the availability of equitable remedies may be limited
by principles of equity; and (iii) rights to indemnification may be
limited by public policy relating to state and federal securities
laws.
c. No Violations. The execution, delivery and performance of this
Agreement, and the consummation by CEGI of the transactions
contemplated hereby, will not (i) result in a breach or violation of
any of the terms and provisions of, or constitute a default (or an
event that with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or asset of CEGI pursuant to
the terms of any contract, indenture, mortgage, loan agreement, note,
bond, debenture, other evidence of indebtedness, lease, permit or
other agreement, arrangement or understanding to which CEGI is a party
or to which CEGI or any of its assets is subject, which breach,
violation, default, lien, charge or encumbrance would prevent or
adversely affect in any material respect the transactions contemplated
by this Agreement;, (ii) violate any provisions of the Articles of
Incorporation or Bylaws of CEGI; or (iii) violate any foreign,
federal, state or local law, rule, regulation, ordinance or court
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decree or other order of any court or governmental or regulatory
agency or body having jurisdiction over CEGI or any of its assets.
d. No Consent. Except for compliance with applicable federal and
state securities laws, no consent, approval, authorization or order of
any court or governmental agency or other body is required for CEGI to
consummate the transactions contemplated by this Agreement.
e. Investment Intent. CEGI is acquiring the Purchased Shares for
its own account for investment and not with a view to, or for sale or
other disposition in connection with, any distribution of all or any
part thereof, except (i) in an offering covered by a registration
statement filed with the SEC under the Securities Act, or (ii)
pursuant to an applicable exemption under the Securities Act.
f. Disclosure of Information. CEGI acknowledges that it has been
furnished with copies of the Public Company's Financial Statements and
sufficient additional information regarding the Public Company and its
business, assets, results of operations, and financial condition, so
as to allow it to make an informed decision regarding an investment in
the Public Company. CEGI further represents it has had an opportunity
to ask questions of and receive answers from the Public Company
regarding the Public Company and its business, assets, results of
operation, and financial condition.
g. Investment Experience. CEGI acknowledges that it is able to
fend for itself, can bear the economic risk of an investment in the
Purchased Shares; and has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and
risks of an investment in the Purchased Shares.
h. Restricted Securities. CEGI understands that the Purchased
Shares will not have been registered pursuant to the Securities Act or
any applicable state securities laws, that the Purchased Shares will
be characterized as "restricted securities" under federal securities
laws, and that under such laws and applicable regulations the
Purchased Shares cannot be sold or otherwise disposed of without
registration under the Securities Act or an exemption therefrom. IA
will supply to CEGI a copy of Rule 144 promulgated by the SEC under
the Securities Act, as currently in effect, and attempt to answer such
questions as CEGI may have as to the application of said Rule to
CEGI's ownership of the Purchased Shares. CEGI has been informed that
the transfer agent will be notified that the Purchased Shares are
restricted and CEGI understands that these shares can only be
transferred by complying with the terms and conditions of Rule 144 or
qualifying for another exemption under the securities laws as they may
then be in effect.
i. Legend. It is agreed and understood by CEGI that the
certificates representing the Purchased Shares shall each
conspicuously set forth on the face or back thereof a legend in
substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED
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OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO
AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL
SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT
REQUIRED.
j. No Misstatements or Omissions. No representations or
warranties by CEGI in this Agreement and no statement contained in any
document, certificate or other writing furnished or to be furnished by
CEGI to IA or the Public Company pursuant to the provisions of this
Agreement contained or will contain any untrue statement of material
fact or omits or will omit to state any material fact necessary to
make the statements herein or therein, in light of the circumstances
under which they were made, not misleading.
9. IA's Closing Conditions. The obligations of IA under this Agreement
shall be subject to the satisfaction of the following conditions:
a. all of the obligations of each of CEGI and the Public Company
required to be performed by them at or prior to the Closing pursuant
to this Agreement shall have been duly performed and complied with in
all material respects;
b. all of the representations and warranties of CEGI and the
Public Company contained in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as of
the date of the Closing as though made at and as of the Closing
(except as to any representation or warranty which specifically
relates to an earlier date), and IA shall have received a certificate
to that effect signed by the Chief Executive Officer of each of the
Public Company and CEGI; and
c. all of the documents required to be delivered pursuant to
Sections 12(a), 12(b), and 12(c) shall have been delivered.
10. CEGI's Closing Conditions. The obligations of CEGI under this
Agreement shall be subject to the satisfaction of the following conditions:
a. all of the obligations of each of IA and the Public Company
required to be performed by them at or prior to the Closing pursuant
to this Agreement shall have been duly performed and complied with in
all material respects;
b. all of the representations and warranties of IA and the Public
Company contained in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and as of the date
of the Closing as though made at and as of the Closing (except as to
any representation or warranty which specifically relates to an
earlier date), and CEGI shall have received a certificate to that
effect signed by the Chief Executive Officer of each of IA and the
Public Company; and
c. all of the documents required to be delivered pursuant to
Sections 12(a), 12(b) and 12(c) shall have been delivered.
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11. Public Company's Closing Conditions. The obligations of the Public
Company under this Agreement shall be subject to the satisfaction of the
following conditions:
a. all of the obligations of each of IA and CEGI required to be
performed by them at or prior to the Closing pursuant to this
Agreement shall have been duly performed and complied with in all
material respects;
b. all of the representations and warranties of IA and CEGI
contained in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the date of the
Closing as though made at and as of the Closing (except as to any
representation or warranty which specifically relates to an earlier
date), and the Public Company shall have received a certificate to
that effect signed by the Chief Executive Officer of each of IA and
CEGI; and
c. all of the documents required to be delivered pursuant to
Sections 12(a), 12(b) and 12(c) shall have been delivered.
12. The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at a time and place to be mutually
agreed upon by IA and CEGI which shall be on or before July 15, 1998. At the
Closing, the parties shall make the following deliveries:
a. Deliveries by IA. IA will deliver
(i) to the Public Company and CEGI the certificate of its Chief Executive
Officer required pursuant to Sections 10(b)and 11(b) of this Agreement;
(ii) to the Public Company and CEGI copies of the resolutions duly adopted by
its Board of Directors authorizing the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby, duly certified by
the Secretary of IA; and
(iii) IA will deliver to CEGI stock certificates representing the Purchased
Shares.
b. Deliveries by the Public Company. The Public Company will
deliver
(i) to IA and CEGI copies of the resolutions duly adopted by its Board of
Directors authorizing the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, duly certified by the
Secretary of the Public Company;
(ii) to IA and CEGI the certificate of its Chief Executive Officer required
pursuant to Sections 9(b)and 10(b) of this Agreement;
(iii) to IA and CEGI the written resignations of all of the Public Company's
officers and directors and copies of the resolutions duly adopted by the Public
Company's Board of
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Directors pursuant to which new directors of the Public Company have been
elected, dated the date of the Closing, electing those persons designated by
CEGI as directors of the Public Company;
(iv) to CEGI all original corporate books and original or photographic copies of
all other records of the Public Company, as well as the Corporate Seal of the
Public Company; and
(v) to CEGI the stockholders list described in subsection 7 d. , above.
c. Deliveries by CEGI. CEGI will deliver
(i) to the Public Company and IA the certificate of its Chief Executive Officer
required pursuant to Sections 9(b) and 11(b) of this Agreement;
(ii) to the Public Company and IA copies of the resolutions duly adopted by its
Board of Directors authorizing the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby, duly certified by the
Secretary of CEGI; and
(iii) to IA, US$135,000 in immediately available funds.
13. Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned:
a. at any time by the mutual consent of the parties hereto; or
b. at any time prior to the Closing, by any of IA, the Public
Company or CEGI, if the Closing shall not have occurred on or before
July 15, 1998; provided, however, that the right to terminate this
Agreement shall not be available to any party whose material breach of
this Agreement has been the cause of, or resulted in, the failure of
the Closing to occur on or effective as of such date; or
c. by IA at any time if any representation, warranty, covenant or
agreement on the part of CEGI or the Public Company set forth in this
Agreement is breached in, or with respect to representations or
warranties, becomes inaccurate in any material respect, and which
shall not have been cured within ten (10) business days following
receipt by the breaching party of notice of such breach or inaccuracy;
or
d. by the Public Company at any time if any representation,
warranty, covenant or agreement on the part of IA or CEGI set forth in
this Agreement is breached in, or with respect to representations or
warranties, becomes inaccurate in any material respect, and which
shall not have been cured within ten (10) business days following
receipt by the breaching party of notice of such breach or inaccuracy;
or
e. by CEGI at any time if any representation, warranty, covenant
or agreement on the part of IA or the Public Company set forth in this
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Agreement is breached in, or with respect to representations or
warranties, becomes inaccurate in any material respect, and which
shall not have been cured within ten (10) business days following
receipt by the breaching party of notice of such breach or inaccuracy;
or
f. by any party at any time if the SEC or any other securities
regulatory authority issues a stop order or otherwise takes
enforcement action concerning the transactions contemplated by this
Agreement or institutes proceedings for that purpose.
14. Miscellaneous.
a. Further Assurances. At all times and from time to time
subsequent to the date hereof, IA, the Public Company and CEGI shall
take all such further action, and shall execute and deliver all such
further documents as are reasonably necessary to effect the
transactions contemplated by this Agreement.
b. Assignment. This Agreement shall not be assignable by any
party without the consent of the other parties. Any purported
assignment in violation of this Agreement shall be void. Nothing in
this Agreement, expressed or implied, is intended to confer upon any
person, other than the parties hereto and their successors, any rights
or remedies under or by reason of this Agreement.
c. Survival. All of the terms, conditions, representations,
covenants and warranties contained herein on behalf of any party
hereto shall survive the Closing.
d. Attorneys Fees. If any party shall be required to employ
attorneys to enforce or defend its rights hereunder, the prevailing
party shall be entitled to recover its reasonable attorneys fees.
e. Amendment and Waiver. This Agreement may be amended or
modified at any time and in all respects, or any provision may be
waived, only by an instrument in writing executed by the parties
hereto, or by the waiving party in the case of a waiver. The rights
and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of
such right, power, or privilege, and no single or partial exercise of
any such right, power, or privilege will preclude any other or further
exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by
applicable law, (i) no claim or right arising out of this Agreement or
the documents referred to in this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim
or right unless in a writing signed by the other party; (ii) no waiver
that may be given by a party will be applicable except in the specific
instance for which it is given; and (iii) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such
party or of the right of the party giving such notice or demand to
take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
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f. Notices. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be
deemed to have been duly given when (i) delivered by hand (with
written confirmation of receipt), (ii) sent by telecopier (with
written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (iii) when received by
the addressee, if sent by a nationally recognized overnight delivery
service (receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may designate by notice to the other
parties):
To IA and/or the Public Company:
Millennia, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx, Xx.
Facsimile No.: (000) 000-0000
To CEGI:
China Economic Growth Investment Corp., LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxx, President
Facsimile No.: (000) 000-0000
g. Choice of Law; Jurisdiction. It is the intention of the
parties that the laws of the State of New York should govern the
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties, without regard
to conflicts of law principles. Actions seeking to enforce or
interpret this Agreement may be brought in any court of law located in
the State of New York having jurisdiction over the parties and the
subject matter of the dispute between them and the parties mutually
agree that actions shall not be commenced in any other state or
jurisdiction. The parties agree that service of process for any such
action shall be made in accordance with the laws of the State of New
York, as the same shall then be in effect.
h. Section and Other Headings. Section, paragraph, and other
headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement.
i. Counterpart Execution. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute but one and the same
instrument.
j. Parties in Interest and Expenses. All the terms and provisions
of this Agreement shall be binding upon and inure to the benefit of,
and be enforceable by the parties and their successors and permitted
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assigns. Each party shall be responsible for those expenses which it
incurs with regard to the negotiation and execution of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed on its behalf by its duly authorized officer, as of the
day and year first above written.
CHINA ECONOMIC GROWTH INVESTMENT CORP., LLC
a Delaware corporation
By: /s/ Xxxxxx Xxx
-----------------------------------
Name: Xxxxxx Xxx
Title: President
MILLENNIA, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
OMNI DOORS, INC.
a Florida corporation
By: /s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
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