SUPPLEMENTAL SHARE PURCHASE AGREEMENT by and among Yinlong Industrial Co. Ltd., Tailong Holdings Company Limited Pacific Dragon Fertilizers Co. Ltd. Yu Chang and Xiao Rong Teng Dated as of February 12, 2009
by
and among
Yinlong
Industrial Co. Ltd.,
Tailong
Holdings Company Limited
Pacific
Dragon Fertilizers Co. Ltd.
▇▇
▇▇▇▇▇ and Xiao ▇▇▇▇ ▇▇▇▇
Dated
as of February 12, 2009
Table of Contents
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ARTICLE
I The Transaction
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1
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1.1
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Payment
of Consideration under this Agreement.
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1
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1.2
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Form
of Payment.
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1
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ARTICLE
II Closing
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1
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2.1
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Closing.
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1
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2.2
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Deliveries
and Proceedings at Closing.
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2
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ARTICLE
III Certain Covenants
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2
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ARTICLE
IV Representation and Warranties of Seller and the
Shareholders
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3
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4.1
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Organization;
Qualification.
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3
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4.2
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Authorization;
Enforceability.
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3
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4.3
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No
Violation of Laws or Agreements.
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3
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4.4
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Subsidiaries
and Investments.
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4
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4.5
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Shares;
Capitalization.
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4
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4.6
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Records.
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4
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4.7
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Financial
Information.
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5
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4.8
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Undisclosed
Liabilities.
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5
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4.9
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No
Changes.
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5
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4.10
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Tax
Returns; Payment.
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5
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4.11
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Legal
Proceedings.
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6
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4.12
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Governmental
Approvals.
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6
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4.13
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Compliance
with Legal Requirements.
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7
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4.14
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Labor
Relations.
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7
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4.15
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Environmental
Matters.
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7
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4.16
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Disclosure.
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7
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ARTICLE
V Representations and Warranties of the Buyer
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7
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5.1
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Organization.
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8
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5.2
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Authorization.
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8
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5.3
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No
Violation of Laws or Agreements; Required Authorizations.
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8
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ARTICLE
VI Survival of Representations, Indemnification
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8
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6.1
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Survival
of Representations.
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8
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6.2
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Indemnification
by Seller.
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8
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6.3
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Indemnification
by Buyer.
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9
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6.4
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Notice
of Claims.
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9
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6.5
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Third-Party
Claims.
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9
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6.6
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Company
Liability.
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9
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ARTICLE
VII
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10
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Definitions,
Construction
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10
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7.1
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Definitions.
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10
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7.2
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Construction.
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12
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ARTICLE
VIII Miscellaneous
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13
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8.1
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Further
Assurances.
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13
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8.2
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Notices.
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13
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8.3
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Currency.
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14
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8.4
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Jurisdiction;
Service of Process.
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14
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8.5
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Consents.
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14
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i
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8.6
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Offset.
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14
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8.7
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Consideration;
Recitals; Governing Law.
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15
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8.8
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Schedules.
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15
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8.9
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Amendment
and Waiver; Cumulative Effect.
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15
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8.10
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Entire
Agreement; No Third-Party Beneficiaries.
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15
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8.11
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Severability.
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15
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8.12
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Counterparts.
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16
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ii
This
Supplemental Share Purchase Agreement (the “Agreement”),
dated as of February 12, 2009, by and among Yinlong Industrial Co. Ltd., a
company organized under the laws of the PRC (“Seller”),
Tailong Holding Company Limited, a company organized under the laws of Hong Kong
(“Buyer”),
Pacific Dragon Fertilizer Co. Ltd. a company organized under the laws of the PRC
(the “Company”)
(each a “Party” and
collectively the “Parties”)
and for purposes of Articles 3, 6 and 8 only, ▇▇ ▇▇▇▇▇, an individual residing
in the PRC (“▇▇.
▇▇▇▇▇”) and Xiao ▇▇▇▇ ▇▇▇▇, an individual residing in the PRC (“▇▇. ▇▇▇▇”
and together with ▇▇. ▇▇▇▇▇ the “Shareholders”).
Whereas,
the Parties previously entered into that certain Share Purchase Agreement
governed by the laws of China, dated February 12, 2009 (the “Chinese
Agreement”) by and among Seller, Buyer and the Company;
Whereas,
pursuant to the Chinese Agreement, Buyer agreed to purchase Seller’s
beneficially and legally owned shares in the Company (the “Company
Shares”); and
Whereas,
the Buyer and Seller have, for additional consideration and benefits, entered
into this Agreement to supplement the Chinese Agreement;
Now
Therefore, in consideration of the premises and agreements set forth herein, and
intending to be legally bound, the Parties hereby agree as follows:
Capitalized
terms not immediately defined and used in this Agreement are defined in Article VII.
ARTICLE
I
The
Transaction
1.1 Payment of Consideration under this
Agreement. At
the Closing, Buyer shall deliver to Seller the Promissory Note (as herein after
defined) for the benefits described under this Agreement (the “Consideration”). The
payment of this consideration is subject to the conditions set forth in Article
I. Said Consideration is in addition to any payment made between the
Parties in the Chinese Agreement.
1.2 Form of
Payment. Buyer
shall deliver to Seller at the Closing an interest free promissory note for
$6,980,000.00 (the “Promissory
Note”) which must be repaid by December 31, 2009, in substantially the
form set forth in Exhibit A.
ARTICLE
II
Closing
2.1 Closing. The
parties shall consummate the payments under this Agreement, and implementation
of terms and conditions for the Company Shares (the “Closing”)
upon the completion of Sections 1.2, 2.1 and 2.2 of the Chinese Agreement (the
“Closing
Date”). The Closing may occur in an office of K&L Gates
LLP or such other time and place as Buyer and Seller may agree in
writing. If and to the extent the Parties mutually agree, the Closing
may take place by exchange of facsimile or electronic signatures without the
necessity for a physical meeting of the Parties.
1
(a) Litigation. No
Legal Requirement shall be in effect that prohibits or threatens to prohibit the
Contemplated Transactions or that would limit or adversely affect Buyer’s
ownership of the Company Shares or control of the Company. No Legal
Proceeding shall be pending or threatened challenging the lawfulness of the
Contemplated Transactions, seeking to prevent or delay any of the Contemplated
Transactions or seeking relief by reason of the Contemplated
Transactions. Neither Seller, the Company, nor Buyer shall have
received any claim by any person (written or oral) asserting that any person
other than Seller (i) is the holder or beneficial owner of, or has the
right to acquire or obtain beneficial ownership of, the Company Shares or any
equity interest or right in the Company or the Subsidiaries, or (ii) has any
Encumbrance on or Security Rights in the Company Shares.
2.2 Deliveries and Proceedings at
Closing.
(a) Deliveries by
Seller. Seller or Company shall deliver to Buyer at the
Closing:
(1) share
certificate representing the amount of the shares Buyer shall own as provided
hereunder and under the Chinese Agreement, which certificate shall be properly
endorsed by the Company in accordance with Chinese law and indicated by
identifying Buyer as the sole holder of the shares of Company;
(2) shareholders'
or board resolutions of the Company and Seller approving the contemplated
transactions contemplated under this Agreement and the Chinese
Agreement;
(3) the
approval documents issued by the competent government body approving the Chinese
Agreement, the Company’s amended articles of association, including the letter
of approval and approval certificate indicating the approval of competent
government body for the conversion of the Company into a wholly-owned foreign
enterprise with Buyer as the sole shareholder, and the updated business license
of the Company issued by the relevant company registry;
(b) Deliveries by
Buyer. Buyer shall deliver or cause to be delivered to Seller
at the Closing, the Promissory Note.
ARTICLE
III
Certain
Covenants
Tax Matter - Mutual
Cooperation. Buyer and Seller shall each assist the other, and
Buyer shall cause the Company to assist Seller, as may reasonably be requested
by any of them with the preparation of any Tax Return, any Tax audit, or any
judicial or administrative proceedings relating to any Tax. In
addition, each party shall retain and provide the other with any records or
information that may be relevant to such Tax Return, Tax audit, proceeding or
determination. The party requesting assistance under this Section
shall reimburse the party providing assistance for direct expenses incurred in
providing such assistance.
2
ARTICLE
IV
Representation
and Warranties of Seller and the Shareholders
Seller
and the Shareholders jointly and severally represent and warrant to Buyer as set
forth in this Article IV.
4.1 Organization;
Qualification. Each of
Seller and the Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of
incorporation. Each of Seller and the Company has the corporate power
and authority to operate, own and lease its properties and carry on its business
as now conducted. Each of Seller and the Company has the absolute and
unrestricted power, authority and capacity to enter into this Agreement and the
Other Agreements to which it is or is to become a party and perform its
obligations under this Agreement and such Other Agreements. The
Company is duly qualified and in good standing and is duly authorized to
transact business. Copies of the Governing Documents of the Company,
which have been delivered to Buyer, are complete and correct.
4.2 Authorization;
Enforceability. This
Agreement and each Other Agreement to which Seller, the Company or the
Shareholders is a party have been duly executed and delivered by such party and
constitute the legal, valid and binding obligations of such party, enforceable
against it in accordance with their respective terms. Each Other
Agreement to which either Seller, the Company or the Shareholders is to become a
party, when executed and delivered by such party, shall constitute the legal,
valid and binding obligation of such party, enforceable against it in accordance
with the terms of such Other Agreement. Each of Seller, the Company
and the Shareholders has duly and validly authorized this Agreement and the
Other Agreements to which it is or is to become a party and all of the
Contemplated Transactions to be taken by it.
4.3 No
Violation of Laws or Agreements. To the
knowledge of the Seller and the Shareholders, the execution and delivery of this
Agreement and the Other Agreements and the consummation and compliance with the
Contemplated Transactions by Seller and the Company shall not, directly or
indirectly (with or without notice or the lapse of time or both):
(a) contravene,
conflict with, or result in a violation of any provision of the Governing
Documents of Seller or the Company or the resolutions adopted by the Board or
Directors or stockholders of Seller or the Company;
(b) contravene,
conflict with, result in a breach of, constitute a default or an event of
default under, give any person the right to consent, approve or terminate
(including the right to consent, approve or terminate upon a change of control
or deemed assignment), or give to any person the right to cause any of the
foregoing with respect to, any asset or Liability of Seller or the
Company;
(c) accelerate,
alter, cause the maturation of or create any Liability of Seller or the Company
or give to any other person the right to cause any of the foregoing, or give any
person any rights or remedies against Seller or the Company;
3
(d) alter,
diminish or result in the termination, revocation, suspension, cancellation,
withdrawal or loss of any asset of Seller or the Company, or create any rights
or assets in any other person that may be adverse to the Company;
(e) violate,
or give any person the right to obtain any relief or exercise any remedy under,
any Legal Requirement to which Seller or the Company is subject, or by which any
of their respective assets may be bound or affected, or give any person the
right to challenge any of the Contemplated Transactions;
(f) cause
Buyer or the Company to become subject to or liable for any Tax or cause any
asset of the Company to be reassessed or re-valued by any taxing authority or
other Governmental Body; or
(g) result in
the creation or imposition of any Encumbrance or Security Right upon the Company
Shares, equity or asset of Seller or the Company, give rise to any rights or
Liabilities under any Security Rights in the Company Shares or other equity in
the Company, or give to any other person any interest or right in any Company
Shares, equity or asset of Seller or the Company.
4.4 Subsidiaries and
Investments. To the
knowledge of the Seller and the Shareholders, the Company does not own, nor has
it ever owned, any equity interest in any corporation, partnership, limited
liability company, joint venture or other entity. The Company is not
a party to any contract to acquire any equity or other securities of any other
person or ownership interest in any other business.
4.5 Shares;
Capitalization. To the
knowledge of the Seller and the Shareholders, all of the Company Shares are
owned of record, legally, beneficially and exclusively by Seller and Seller
holds the exclusive right and power to vote the Company Shares. The
Company Shares are free and clear of any and all Encumbrances. No
legend or other reference to any purported Encumbrance appears upon any
certificate representing the Company Shares. Upon delivery of the
Company Shares, Buyer will acquire good and valid legal and exclusive title to
the Company Shares, free and clear of any Encumbrances. No Security
Rights relating to any of the Company Shares or other equity interests of the
Company exist or are reserved or will be created by reason of the Contemplated
Transactions. No person has an obligation to create or issue any
Security Rights with respect to the Company Shares or other equity of the
Company. The Company Shares were issued in compliance with all
applicable Legal Requirements, including federal and state securities laws, and
all applicable Security Rights.
4.6 Records. To the
knowledge of the Seller and the Shareholders, the books of account and related
records of the Company reflect accurately and in detail its assets, Liabilities,
revenues, expenses and other transactions. The books of account of
the Company have been maintained in accordance with sound business practices and
the requirements of Section 13(b)(2) of the Securities Exchange Act of 1934, as
amended (whether or not the Company is subject to that Section), including the
maintenance of adequate internal controls. The minute books of the
Company contain accurate and complete records of all meetings held of, and
corporate action taken by, the stockholders, the Board of Directors of the
Company, and committees of the Board of Directors of the Company. No
meeting of stockholders, the Board of Directors of the Company, and committees
of the Board of Directors of the Company has been held for which minutes have
not been prepared and are not contained in the minute books of the
Company. All minute books of the Company have been made available to
Buyer and, at Closing, will be in the possession of the Company.
4
4.7 Financial
Information. To the
knowledge of the Seller and the Shareholders, attached as Exhibit B are the
balance sheets and income statements for the Company at December 31, 2006,
December 31, 2007 and September 30, 2008, (the “Financial
Statements”). The Financial Statements (i) are accurate,
correct and complete in accordance with the books of account and records of the
Company, (ii) have been prepared in accordance with GAAP on a consistent
basis throughout the indicated periods and (iii) present fairly the
financial condition, assets and liabilities and results of operation of the
Company at the dates and for the relevant periods indicated in accordance with
GAAP on a basis consistently applied. No financial statements of any
person other than the Company are required under GAAP to be included in the
Financial Statements. All references in this Agreement to “Balance Sheet
Date” mean September 30, 2008, and to the “September 2008
Balance Sheet” mean the Company’s balance sheet as at September 30,
2008. The Stockholders’ Equity of the Company at September 30, 2008,
as determined by reference to the September 2008 Balance Sheet, was
$47,193,891.40.
4.8 Undisclosed
Liabilities. To the
knowledge of the Seller and the Shareholders, the Company has no Liabilities
except (i) those disclosed on Schedule 4.9; and (ii) those of the same
nature as those set forth on the September 2008 Balance Sheet that have arisen
in the ordinary course of business of the Company after the Balance Sheet Date,
none of which is materially different in amount as reflected in the Financial
Statements (“Post-Balance
Sheet Liabilities”). All Post-Balance Sheet Liabilities are
consistent in amount and character with past practice and
experience. No Post-Balance Sheet Liability has had or will have an
adverse effect on the business, financial condition or prospects of the
Company. No Post-Balance Sheet Liability is a result of a breach of
contract or warranty, a tort or infringement, or violation of any property
rights or Legal Requirements. The Company has not discontinued any
operations, ceased doing business, sold all or substantially all of its
operating assets, operates or formerly operated a business not related to the
business, nor has the Company been involved in any merger, consolidation,
combination, amalgamation, liquidation, division, dissolution proceedings,
bankruptcy or moratorium proceeding at any time.
4.9 No
Changes. To the
knowledge of the Seller and the Shareholders, since the Balance Sheet Date, the
Company has conducted the Business only in the ordinary course, consistent with
past practice.
4.10 Tax Returns;
Payment. To the
knowledge of the Seller and the Shareholders, the Company has filed on a timely
basis all Tax Returns that are or were required to be filed by it under
applicable Legal Requirements. All such Tax Returns were correct and
complete in accordance with applicable Legal Requirements. Sellers
have delivered to Buyer copies of, and Schedule 4.11 contains a complete and
accurate list of all such Tax Returns filed.. The Company has paid
all Taxes that have been required to be paid under applicable Legal
Requirements, including those shown due on the Tax Returns filed by it or under
any assessment received as an adjustment to such Tax Returns. The
Company is not currently the beneficiary of any extension of time within which
to file any Tax Return. No claim has been made by a Taxing authority
of a jurisdiction where the Company does not file Tax Returns that the Company
is or may be subject to taxation in that jurisdiction. Without
limiting the foregoing, the Company has no Liability for any Tax except
(i) Taxes disclosed on Schedule 4.11, (ii) Taxes fully reserved on the
September 2008 Balance Sheet, and (iii) Taxes accrued after the Balance
Sheet Date that will be fully reserved on the balance sheet. Schedule
4.11 identifies the GAAP method of reporting taxes on the Balance
Sheet.
5
(a) Withholding. The
Company has withheld and paid all Taxes required under applicable Legal
Requirements to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, stockholder or other
person.
(b) Assessments;
Audits. There is no pending, or, to the knowledge of Seller
and the Company, threatened or anticipated, assessment of any additional Tax
against any member of Seller or the Company for any taxable
period. Seller or the Company have not waived any statute of
limitations in respect of any Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency for any taxable period. No
Tax audit or examination is now pending or currently in progress with respect to
the Company.
(c) Other Matters. The
Company is not a party to any income Tax allocation or sharing
agreement.
4.11 Legal
Proceedings. To the
knowledge of the Seller and the Shareholders, no Legal Proceeding is pending or
threatened against or affecting the Company, any of the Company’s assets, any of
the Company Shares or the Contemplated Transactions, and there is no basis for
any of the foregoing. No officer, director, agent, or employee of the
Company is subject to any Legal Proceeding that prohibits such officer,
director, agent, or employee from engaging in or continuing any conduct,
activity, or practice. No Legal Requirement shall be in effect that
prohibits or threatens to prohibit the Contemplated Transactions.
4.12 Governmental
Approvals. To the
knowledge of the Seller and the Shareholders, Schedule 4.13 identifies all
Governmental Approvals that are material to the Company. Each
Governmental Approval is valid, subsisting and in full force and
effect. The Company is in full compliance with and has fulfilled and
performed its obligations under each Governmental Approval. No event
or condition or state of facts exists (or would exist upon the giving of notice
or lapse of time or both) that could constitute a breach or default under any
Governmental Approval. The Company has no knowledge of and has not
received, at any time, any notice or other communication (whether oral or
written) from any Governmental Body or any other person regarding, any actual,
alleged, possible, or potential (i) violation of or failure to comply with any
term or requirement of any Governmental Approval or (ii) revocation, withdrawal,
non-renewal, suspension, cancellation, termination of, or modification to any
Governmental Approval. No Legal Proceeding is pending or threatened
to revoke, suspend or modify any Governmental Approval or to deny any renewal of
any Governmental Approval. All applications required to have been
filed for the renewal of any Governmental Approval have been duly filed on a
timely basis with the appropriate Governmental Bodies. All other
plans, filings, reports, notifications or other submissions required to have
been made with respect to such Governmental Approvals or filed with any
Governmental Body have been duly made or filed on a timely basis with the
appropriate Governmental Bodies. The Governmental Approvals
identified on Schedule 4.13 constitute all of the Governmental Approvals
necessary to allow the Company to conduct and operate its business in the manner
currently conducted and in accordance with all applicable Legal Requirements and
allow it to own and use its assets in the manner in which they are currently
owned and used.
6
4.13 Compliance with Legal
Requirements. To the
knowledge of the Seller and the Shareholders, the Company is and has been in
full compliance of all Legal Requirements applicable to the
Company. No event has occurred or condition or state of facts exists
that (with or without notice or lapse of time or both) (i) may constitute or
result in a violation or non-compliance by the Company of any Legal Requirement,
or (ii) may give rise to any Liability on the part of the Company to undertake,
or to bear all or any portion of the cost of, any remedial action of any nature
(including any environmental remedial action). The Company has not
received any notice or other communication (whether oral or written) from any
Governmental Body or any other person regarding (y) any actual, alleged,
possible, or potential violation of, or failure to comply with, any Legal
Requirement, or (z) any actual, alleged, possible, or potential Liability on the
part of the Company to undertake, or to bear all or any portion of the cost of,
any remedial action of any nature.
4.14 Labor
Relations. To the
knowledge of the Seller and the Shareholders, the relations of the Company with
its employees are good. No representation election, arbitration
proceeding, grievance, picketing, labor strike, dispute, slowdown, lockout,
stoppage or other labor trouble is pending or, to the knowledge of Seller and
the Company, threatened against or affecting the Company.
4.15 Environmental
Matters. To the
knowledge of the Seller and the Shareholders, the Seller represents that there
are no environmental matters regarding the Seller or the Company.
4.16 Disclosure. To the
knowledge of the Seller and the Shareholders, none of the representations or
warranties of Seller and the Company contained in this Article IV and none of
the information contained in the Schedules referred to in Article IV is
false or misleading in any material respect or omits to state a fact necessary
to make the statements in this Article IV or in the Schedules to Article IV not
misleading in any material respect. There is no fact known to either
Seller or the Company that has specific application to the Company (other than
general economic or industry conditions) and that materially adversely affects
or, as far as either Seller or the Company can reasonably foresee, materially
threatens, the assets, prospects, financial condition, or results of operations
of the Company that has not been set forth in this Agreement or the Schedules to
this Agreement.
ARTICLE
V
Representations
and Warranties of the Buyer
Buyer
represents and warrants to Seller as follows:
7
5.1 Organization. Buyer is
a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation. Buyer has the corporate
power and authority to enter into this Agreement and perform its obligations
under this Agreement.
5.2 Authorization. This
Agreement has been duly executed and delivered by Buyer.
5.3 No Violation of Laws or Agreements;
Required Authorizations. The
execution and delivery of this Agreement and the consummation and compliance
with the transactions, terms and conditions of this Agreement by Buyer will not,
directly or indirectly (with or without notice or the lapse of time or
both): violate, or give any person the right to obtain any relief, or
exercise any remedy under, any Legal Requirement to which Buyer is subject, or
by which any of its assets may be bound or affected, or give any person the
right to challenge any of the Contemplated Transactions.
ARTICLE
VI
Survival
of Representations, Indemnification
6.1 Survival of
Representations. All
representations, warranties, covenants and obligations made by any party in this
Agreement shall survive the Closing. Any limitation or qualification
set forth in any one representation and warranty in Article IV or V shall
not limit or qualify any other representation and warranty in Article IV or
V. The right to indemnification under this Article VI or any other
remedy based on the breach or inaccuracy of any representation or warranty in
Articles IV or V, or breach of, or noncompliance with, any covenant or
obligation in this Agreement will not be affected by any investigation conducted
with respect to, or any knowledge acquired (or capable of being acquired) at any
time, whether before or after the Closing Date, with respect to any such
representation, warranty covenant or obligation. The waiver by any
party of any condition at Closing of the breach or inaccuracy of any
representation or warranty, or breach of, or noncompliance with, any covenant or
obligation, will not affect the right of such party to indemnification, payment
of Damages or other remedy based on such breach, inaccuracy or
noncompliance.
6.2 Indemnification
by Seller. Seller,
▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇ shall indemnify, defend, save and hold harmless Buyer and
its officers, directors, employees, agents and Affiliates (including, after the
Closing, the Company; each, a “Buyer
Indemnitee”) from and against all Damages (collectively, “Buyer
Damages”) directly or indirectly asserted against, imposed upon,
resulting to, or incurred or required to be paid by any Buyer Indemnitee from or
in connection with:
(a) any
breach or inaccuracy of any representation or warranty made by Seller or the
Company in this Agreement (without giving effect to any supplement to the
Schedules), in any supplement to the Schedules, in any certificate or document
delivered by Seller or the Company in connection with this Agreement or any
Other Agreement to which Seller or the Company, or both, is or is to become a
party;
(b) any
breach or nonperformance of any covenant or obligation made by Seller or the
Company in or in connection with this Agreement or any Other Agreement to which
Seller or the Company, or both, is or is to become a party; or
8
(c) any
investigation, defense, settlement, enforcement, litigation or prosecution by
Buyer, or efforts to obtain relief in connection with, any of the foregoing or
of any of Buyer’s other rights under this Agreement, including any reasonable
attorneys fees incurred in connection with Buyer’s enforcement of this Agreement
or any of Buyer’s remedies relating to this Agreement.
6.3 Indemnification by
Buyer. Buyer
shall indemnify, defend, save and hold harmless Seller and its officers,
directors, employees, and agents (each, a “Seller
Indemnitee”) from and against any and all Damages (collectively, “Seller
Damages”) directly or indirectly asserted against, imposed upon,
resulting to, or incurred or required to be paid by any Seller Indemnitee from
or in connection with, (i) any breach or inaccuracy of any representation
or warranty made by Buyer in this Agreement or in any certificate or document
delivered by Buyer in connection with this Agreement or any Other Agreement to
which Buyer is a party, and (ii) a breach or nonperformance of any covenant
or agreement made by Buyer in or in connection with this Agreement or in any
Other Agreement to which Buyer is or is to become a party.
6.4 Notice of
Claims. If any
Buyer Indemnitee or Seller Indemnitee (an “Indemnified
Party”) believes that it has suffered or incurred, or will suffer or
incur, any Damage for which it is entitled to indemnification under this
Article VI, the Indemnified Party shall notify the party or parties from
whom indemnification is being claimed (the “Indemnifying
Party”). This notice shall specify the factual basis of the
claim in reasonable detail in light of the circumstances then
existing. If any Legal Proceeding is instituted by or against a third
party with respect to which any Indemnified Party intends to claim any Damages,
such Indemnified Party shall notify the Indemnifying Party of such action or
suit.
6.5 Third-Party
Claims. The
Indemnified Party shall have the right to conduct and control, through counsel
of its choosing, the defense of any third-party claim, action or
suit. The Indemnified Party may compromise or settle any third-party
claim, action or suit so long as the Indemnified Party gives the Indemnifying
Party advance notice of any proposed compromise or settlement. The
Indemnified Party shall permit the Indemnifying Party to participate in the
defense of any such claim, action or suit through counsel chosen by the
Indemnifying Party, so long as the fees and expenses of that counsel are borne
by the Indemnifying Party. If the Indemnified Party permits the
Indemnifying Party to undertake, conduct and control the conduct and settlement
of such claim, action or suit: (i) the Indemnifying Party shall
not permit any Encumbrance to exist upon any asset of the Indemnified Party;
(ii) the Indemnifying Party shall not consent to any settlement that
includes equitable relief and does not include as an unconditional term of the
settlement the giving of a complete release from Liability with respect to such
action or suit to the Indemnified Party; (iii) the Indemnifying Party shall
permit the Indemnified Party to participate in such conduct or settlement
through counsel chosen by the Indemnified Party (without any Order by any
Governmental Body); and (iv) the Indemnifying Party shall agree promptly to
reimburse the Indemnified Party for the full amount of any Damages including
fees and expenses of counsel for the Indemnified Party.
6.6 Company
Liability. After the
Closing, the Company shall have no Liability to Seller for any breach of any
representation or warranty made by Seller or the Company to Buyer in this
Agreement, in any certificate or document furnished in connection with this
Agreement by Seller or the Company or any Other Agreement to which Seller or the
Company, or both, is or is to become a party.
9
ARTICLE
VII
Definitions,
Construction
7.1 Definitions. The
following terms have the meanings specified below or are defined in the Sections
referred to below. All accounting terms not specifically defined in
this Agreement shall be construed in accordance with GAAP.
“Affiliate” means, with
respect to any person, any other person that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with such person.
“Agreement” means this
Supplemental Share Purchase Agreement, as it may be amended from time to
time.
“Balance Sheet Date” is
defined in Section
4.8.
“Buyer Damages” is defined in
Section 6.2.
“Buyer Indemnitee” is defined
in Section 6.2.
“Chinese Agreement” is defined
in the introductory paragraph of this Agreement.
“Closing” is defined in Section 2.1.
“Closing Date” is defined in
Section 2.1.
“Company Shares” is defined in
the introductory paragraph of this Agreement.
“Contemplated Transactions”
means the sale and purchase of the Company Shares and the transactions
contemplated by this Agreement and the Other Agreements.
“Damage” means any loss,
demand, claim, allegation, assertion, action or cause of action, assessment,
damage (including incidental and consequential damages), deficiency, Liability,
cost, expense, diminution of value, fine, penalty, judgment, award or
settlement, whether or not involving a third-party claim, including reasonable
legal fees, interest, and any reasonable amount paid in investigation, defense
or settlement of any of the foregoing.
“Encumbrance” means any debt,
mortgage, deed of trust, pledge, security interest, encumbrance, option, right
of first refusal, agreement of sale, adverse claim, easement, lien, lease,
assessment, restrictive covenant, Liability, encroachment, right-of-way, burden
or charge of any kind or nature whatsoever, legal or equitable, or any item
similar or related to the foregoing.
“Financial Statements” is
defined in Section
4.8.
10
“GAAP” means U.S. generally
accepted accounting principles.
“Governing Documents” means,
with respect to any person who is not a natural person, the certificate or
articles of incorporation, bylaws, formation or governing agreement and other
charter documents or organization or governing documents or instruments of such
person.
“Governmental Body” means any
court, government, department, commission, board, bureau, agency, official or
other regulatory, administrative or governmental authority or instrumentality
(foreign, federal, state, local or other political subdivision).
“Indemnified Party” is defined
in Section 6.4.
“Indemnifying Party” is
defined in Section 6.4.
“Legal Proceeding” means any
action, arbitration, audit, hearing, investigation, litigation, suit (whether
civil, criminal, administrative, investigative, or informal) or Order commenced,
brought, conducted, or heard by or before, or otherwise involving, any
Governmental Body or arbitrator.
“Legal Requirement” means any
applicable international, multinational, national, foreign, federal, state,
municipal, local (or other political subdivision) or administrative law,
constitution, statute, code, ordinance, rule, regulation, requirement, standard,
policy, guidance, treaty, judgment or Order of any kind or nature whatsoever
including any public policy, judgment or principle of common law.
“Liability” with respect to
any person or any property of such person, means any and all debt, liability or
obligation of such person of any nature or kind whatsoever, whether or not due
or to become due, accrued, fixed, absolute, matured, liquidated, asserted,
conditional, secondary, potential, determined, determinable or contingent and
whether or not incurred directly by such person or by any predecessor of such
person, and whether or not arising out of any act, omission, transaction,
circumstance, sale of goods or service, set off, recoupment, counterclaim or
otherwise.
“Order” means any award,
decision, injunction, judgment, order, ruling, writ, decree, determination,
subpoena, stipulation or verdict entered, issued, made, or rendered by any
court, administrative agency, or other Governmental Body or by any
arbitrator.
“Other Agreement” means any
other agreement or document contemplated by this Agreement to be executed and
delivered in connection with the transactions contemplated by this Agreement,
including, without limitation, the Chinese Agreement and the Promissory
Note.
“party” or “parties” mean a
party or the parties to this Agreement.
“PRC” means the People’s
Republic of China.
“person” means and includes a
natural person, a corporation, an association, a partnership, a limited
liability company, a trust, a joint venture, an unincorporated organization, a
business, a Governmental Body or any other legal entity.
11
“Post-Balance Sheet Liability”
is defined in Section 4.9.
“Required Authorization” means
any registration, filing, declaration, application or notice to or with any
person and any consent, approval, permit, qualification, waiver, waiting period,
authorization, Order or action of or by any person. “Required Authorization” shall
include any consent, approval, waiver, authorization or other action required or
to prevent any assets or Liabilities of the Company from being in default,
terminating, accelerating, revoking, suspending, canceling, losing or
diminishing in value, changing in any respect or creating any Liability or
giving any person any rights or remedies as a result of the consummation of the
Contemplated Transactions.
“Security Right” with respect
to any security, means any option, warrant, subscription right, preemptive
right, right to convert or exchange, other right, proxy, put, call, demand,
plan, commitment, agreement, understanding or arrangement of any kind relating
to such security, whether issued or unissued, or any other security convertible
into or exchangeable for any such security. “Security Right” includes
convertible or exchangeable debt or equity securities and any right relating to
issuance, sale, assignment, transfer, purchase, redemption, conversion,
exchange, registration or voting and includes rights conferred by statute, by
the issuer’s Governing Documents or by contract.
“Seller Damages” is defined in
Section 6.3.
“Seller Indemnitee” is defined
in Section 6.3.
“Tax” or “Taxes” means (i) all income, profits,
franchise, gross receipts, capital, sales, use, withholding, municipal license
(patents), value added, ad valorem, transfer, employment, social security,
disability, occupation, property, severance, production, excise and other taxes, duties and
other similar governmental charges and assessments imposed by or on behalf of
any government or taxing authority (including interest and penalties thereon and
additions thereto), whether or not disputed, and (ii) any obligations under any agreements or
arrangements with respect to Taxes described in clause (i)
above.
“Tax Return” means any return,
declaration, report, claim for refund, or information return or statement
relating to any Tax, including any schedule or attachment, and including any
amendment.
“September 2008 Balance Sheet”
is defined in Section
4.8.
7.2 Construction. As used
in this Agreement, unless the context otherwise
requires: (i) references to “Article” or “Section” are to an
article or section of this Agreement; (ii) all “Exhibits” and “Schedules”
referred to in this Agreement are to Exhibits and Schedules attached to this
Agreement and are incorporated into this Agreement by reference and made a part
of this Agreement; (iii) ”include”, “includes” and “including” are deemed
to be followed by “without limitation” whether or not they are in fact followed
by such words or words of like import; (iv) the headings of the various
articles, sections and other subdivisions of this Agreement are for convenience
of reference only and shall not modify, define or limit any of the terms or
provisions of this Agreement; (v) “knowledge” of a person means the actual
knowledge of such person and the knowledge that a prudent individual could be
expected to discover or otherwise become aware of in the course of conducting a
reasonably comprehensive investigation concerning the existence of the matters
addressed; and (vi) a “breach” of a representation, warranty, covenant or
obligation of this Agreement or any instrument delivered in connection with this
Agreement shall include (A) a breach or inaccuracy of such representation or
warranty, or a breach of, or noncompliance with, such covenant or obligation, or
(B) any claim by any person or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant or obligation, and the
term “breach” means any such breach, inaccuracy, noncompliance, claim,
occurrence or circumstance.
12
ARTICLE
VIII
Miscellaneous
8.1 Further
Assurances. After
Closing, without further consideration, Seller shall take or cause to be taken
such actions (including the execution, acknowledgment and deliver of
instruments, documents, transfers, conveyances and assurances) as Buyer may
request for the better conveying, transferring, assigning, delivering, assuring
and confirming the Company Shares to Buyer.
8.2 Notices. All
notices given or made in connection with this Agreement shall be in
writing. Delivery of written notices shall be
effective: (i) on the second business day after the date of
mailing, if delivered by registered or certified mail, postage prepaid,
(ii) upon delivery, if sent by hand delivery, (iii) upon delivery, if
sent by prepaid courier, with a record of receipt, or (iv) on the next day
after the date of dispatch, if sent by cable, telegram, facsimile or
telecopy. All deliveries shall be made to the following
addresses:
If to
Buyer, to:
Tailong
Holding Company Limited
▇▇▇▇ ▇▇
▇▇. ▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
International Business Garden, Future Business ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ 100024
Fax: (▇▇)
▇▇-▇▇▇▇▇▇▇▇
with a
required copy to:
K&L
Gates
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇
▇▇▇▇▇▇, Esq.
If to
Seller or the Shareholders, to:
Yinlong
Industrial Co. Ltd.
▇▇ ▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇
Fax: (▇▇)
▇▇▇ ▇▇▇▇▇▇▇▇
13
with a
required copy to:
▇▇
▇▇▇▇▇
▇▇ ▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇
Fax: (▇▇)
▇▇▇ ▇▇▇▇▇▇▇▇
with a
required copy to:
Xiao ▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇
Fax: (▇▇)
▇▇▇ ▇▇▇▇▇▇▇▇
Notices
to the Company shall be addressed in care of Seller before the Closing and in
care of Buyer after the Closing. Any party may change the address to
which notice (or copies) to it shall be addressed by giving notice of that
change to the other parties in accordance with this Section.
8.3 Currency. All
currency references in this Agreement are to United States dollars.
8.4 Jurisdiction; Service of
Process. Any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of, this Agreement may be brought against any party in the courts of
the State of New York, or, if it has or can acquire jurisdiction, in the United
States District Court for the District of New York.
8.5 Consents. Each
party consents to the jurisdiction of these courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid in such courts. Process in any action or proceeding referred to in
the preceding sentence may be served on any party anywhere in the
world.
8.6 Offset. Buyer
shall be entitled to an offset, setoff or recoup from any amounts due to Seller
from Buyer under this Agreement or under any Other Agreement against any
obligation of Seller to Buyer under this Agreement or under any Other
Agreement. This Agreement and all the rights and powers granted by
this Agreement shall bind and inure to the benefit of the parties and their
respective successors and permitted assigns.
14
8.7 Consideration; Recitals; Governing
Law. The
parties acknowledge the mutual receipt and sufficiency of valuable consideration
for the formation of the legally binding contract represented by this
Agreement. That consideration includes all of the representations,
warranties, covenants and obligations contained in this
Agreement. The recitals set forth at the beginning of this Agreement
are incorporated into this Agreement and made a part of this
Agreement. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to its conflict
of laws doctrines.
8.8 Schedules. The
disclosures in the Schedules to this Agreement, and those in any supplement to
the Schedules, relate only to the representations and warranties in the Section
of the Agreement to which they expressly refer and not to any other
representation or warranty in this Agreement. In the event of any
inconsistency between the statements in this Agreement and those in the
Schedules, the statements in this Agreement will control.
8.9 Amendment and Waiver; Cumulative
Effect. To be
effective, any amendment or waiver under this Agreement must be in writing and
signed by the party against whom enforcement of the same is
sought. Neither the failure of any party to exercise any right, power
or remedy provided under this Agreement or to insist upon compliance by any
other party with its obligations under this Agreement, nor any custom or
practice of the parties at variance with the terms of this Agreement, shall
constitute a waiver by such party of its right to exercise any such right, power
or remedy or to demand such compliance. The rights and remedies of
the parties are cumulative and not exclusive of the rights and remedies that
they otherwise might have now or hereafter at law, in equity, by statute or
otherwise.
8.10 Entire Agreement; No Third-Party
Beneficiaries. This
Agreement and the Schedules and Exhibits set forth all of the promises,
covenants, agreements, conditions and undertakings between the parties with
respect to the subject matter of this Agreement. This Agreement
supersedes all prior or contemporaneous agreements and understandings,
negotiations, inducements or conditions, express or implied, oral or written,
among the parties. Except for the provisions of Sections 6.2 and
6.3 relating to Buyer Indemnitees and Seller Indemnitees, this Agreement is not
intended to confer upon any person other than the parties any rights or remedies
under this Agreement.
8.11 Severability. If any
term or other provision of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced under any
applicable Legal Requirement in any particular respect or under any particular
circumstances, then, so long as the economic or legal substance of the
Contemplated Transactions is not affected in any manner materially adverse to
any party, (i) such term or provision shall nevertheless remain in full force
and effect in all other respects and under all other circumstances, and (ii) all
other terms, conditions and provisions of this Agreement shall remain in full
force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner so that the
Contemplated Transactions are fulfilled to the fullest extent
possible.
15
8.12 Counterparts. This
Agreement may be executed in more than one counterparts, each of which shall be
deemed to be an original but all of which together shall be deemed to be one and
the same instrument.
[The
remainder of this page intentionally left blank.]
16
The
parties, each intending to be legally bound by this Agreement, have executed
this Agreement as of the first date identified in the first sentence of this
Agreement.
|
Seller:
|
|
|
Yinlong
Industrial Co. Ltd.
By: _______________________________
Name:
_______________________________
Title: _______________________________
|
|
|
Buyer:
|
|
|
Tailong
Holding Company Limited
By: _______________________________
Name:
_______________________________
Title: _______________________________
|
|
|
Company:
|
|
|
Pacific
Dragon Fertilizer Co. Ltd.
By: _______________________________
Name:
_______________________________
Title: _______________________________
|
|
|
For
Purposes of Articles 3, 6 and 8 only:
|
|
|
_________________________________
▇▇
▇▇▇▇▇
|
|
|
_________________________________
Xiao
▇▇▇▇ ▇▇▇▇
|
|
17
Schedules
and Exhibits
|
Schedule
4.4
|
Required
Authorizations
|
|
|
Schedule
4.9
|
Undisclosed
Liabilities
|
|
|
Schedule
4.11
|
Tax
Returns
|
|
|
Schedule
4.13
|
Government
Approvals
|
|
|
Exhibit
A
|
Promissory
Note
|
|
|
Exhibit
B
|
Financial
Statements
|
18
Schedule
4.4
Required
Authorizations
[MOFCOM
Approvals]
Schedule
4.9
Undisclosed
Liabilities
Schedule
4.11
Tax
Returns
Schedule
4.13
Government
Approvals
Exhibit
A
Promissory
Note
Exhibit
B
Financial
Statements