SPIN-OFF AGREEMENT
Exhibit 10.3
THIS
SPIN-OFF AGREEMENT (the "Agreement"), is entered into
as of the 8th
day of
January 2008 (the “Effective
Date”), by and between Xxxxxx Xxxxx, an adult
individual residing in County of Los Angeles, State of California and Xxxxx Xxxxx, an adult
individual residing in the County of Los Angeles, State of California
(individually, each is a “Purchaser” and collectively
the “Purchasers”),
South
Bay Financial Solutions,
Inc., a Nevada corporation (“SBFS”), a Nevada
corporation
(“SBFS”), and a
wholly-owned subsidiary of the
Seller and American Nano
Silicon Technology, Inc., a corporation organized and validly existing
under the laws of the State of California (the "Seller").
WHEREAS,
the Seller, the Purchasers and certain other parties named therein entered
into
that certain Stock Purchase and Share Exchange Agreement, dated as May 24,
2007
(the “Exchange
Agreement”).
WHEREAS,
the Purchasers were the majority shareholders and management of the Seller
previous to selling all of their shares of Seller and resigning their management
positions pursuant to the Exchange Agreement.
WHEREAS,
the Exchange Agreement
contemplated the transfer of all of the assets of the Seller’s business, as such
business was conducted prior to the closing of the Exchange
Agreement (the “COHQ
Business”)
to
SBFS.
Whereas,
the Seller has transferred its rights to assets of the COHQ Business (the
“Transferred Assets”)
to SBFS prior to the Effective Date.
WHEREAS,
subject to the terms and conditions contained herein, the Purchasers desire
to
purchase, and the Seller desires to sell Three Million (3,000,000) shares of
common stock of SBFS, constituting all of the issued and outstanding shares
of
SBFS, in consideration of the Purchasers assuming responsibility for the
liabilities of the COHQ Business.
NOW,
THEREFORE, in consideration of the foregoing premises and the covenants and
agreements set forth herein, and for other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
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1.
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Share
Purchase and Sale. Upon
execution of this Agreement, the Purchasers hereby irrevocably agree
to
purchase Three Million (3,000,000) shares of common stock of
SBFS (the “Shares”) owned
of record by the Seller, and the Seller hereby irrevocably agrees
to sell
and convey to the Purchasers all of the Shares, all subject to and
in
accordance with the terms and conditions herein contained.
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2.
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Purchase
Price. As
consideration for
the Shares, SBFS (i) hereby assumes any and all liabilities of the
Seller
arising out of, based upon, or in connection with the COHQ
Business
or any actions or omissions by the Seller prior to the closing of
the
transactions of the Exchange Agreement, or arising out of the actions
or
omissions of Purchasers, and SBFS and the Purchasers (ii) provide the indemnifications
described in Section 3 of this
Agreement,
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3.
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Indemnification
by Purchasers and SBFS. Commencing
on the Effective Date, SBFS and each Purchaser, jointly and severally,
agrees to indemnify and hold harmless the Seller and its officers,
directors, stockholders and agents, (but excluding the Purchasers)
against
any and all losses, liabilities, damages, and expenses whatsoever
(which
shall include for all purposes, but not be limited to, reasonable
counsel
fees and any and all expenses whatsoever incurred in investigating,
preparing, or defending against any litigation, commenced or threatened,
or any claim whatsoever, and any and all amounts paid in settlement
of any
claim or litigation) as and when incurred arising out of, based upon,
or
in connection with the COHQ Business or any actions or omissions
by the
Seller prior to the closing of the transactions of the Exchange
Agreement. The foregoing agreement to indemnify shall be in
addition to any liability Purchasers and/or SBFS may otherwise have
to the
Seller, including liabilities arising under this
Agreement.
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4.
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Representations
and Warranties of the Seller. The
Seller
hereby represents and warrants to the Purchaser, as of the date hereof,
the following:
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(a)
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the
Seller is a corporation duly organized and validly existing under
the laws
of the State of California;
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(b)
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to
the knowledge of the Seller’s current management and without duty of
enquiry, the Seller is not bound by or subject to any contract, agreement,
court order or judgment, administrative ruling, law, regulation or
any
other item which prohibits or restricts the Seller from entering
into and
performing this Agreement in accordance with its terms, or requiring
the
consent of any third party prior to the entry into or performance
of this
Agreement by the Seller in accordance with its
terms;
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(c)
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no
broker, dealer or other party has provided services in connection
with
this transaction for which any commission or other compensation is
owed;
and
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5.
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No
Representations and Warranties of the Seller regarding SBFS. The
Seller
makes no representations or warranties, either express or implied,
regarding SBFS or the Shares to the Purchasers and neither the Seller
nor
any of its officers,
directors, stockholders and agents shall have any liability to the
Purchasers or SBFS or any of its officers, directors,
stockholders and agents other than the obligation to sell the Shares
to
the Purchasers pursuant to this Agreement .
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6.
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Representations
and Warranties of the Purchasers. The
Purchasers hereby represents and warrant to the Seller, as of the
date
hereof, the following:
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(a)
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each
Purchaser is an adult individual residing in the State of California,
and
has full power and capacity to enter into, execute and perform this
Agreement, which Agreement, once executed by the Purchasers, shall
be the
valid and binding obligation of each Purchaser, enforceable against
such
party by any court of competent jurisdiction in accordance with its
terms;
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(b)
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neither
Purchaser is bound by or subject to any contract, agreement, law,
court
order or judgment, administrative ruling, regulation or any other
item
which prohibits or restricts such Purchaser from entering into and
performing this Agreement in accordance with its terms, or requiring
the
consent of any third party prior to the entry into or performance
of this
Agreement in accordance with its terms by such party;
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(c)
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with
respect to the Shares being acquired by the Purchasers:
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(i)
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the
Purchasers are acquiring the Shares for their own accounts, and not
with a
view toward the subdivision, resale, distribution, or fractionalization
thereof; the Purchasers have no contract, undertaking, or arrangement
with
any person to sell, transfer, or otherwise dispose of the Shares
(or any
portion thereof hereby subscribed for), and have no present intention
to
enter into any such contract, undertaking, agreement or arrangement;
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(ii)
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the
purchase of the Shares by the Purchasers is not the result of any
form of
general solicitation or general advertising;
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(iii)
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the
Purchasers hereby acknowledge that: (A) the offering of the Shares
was
made only through direct, personal communication between the Purchasers
and the Seller; (B) the Purchasers have had full access to information
concerning SBFS; and (C) the Purchasers understand and acknowledge
that a
purchaser of the Shares must be prepared to bear the economic risk
of such
investment for an indefinite period because the Shares have not been
registered under the Securities Act of 1933 (the "Act") or any
state
securities act (nor passed upon by the SEC or any state securities
commission) and cannot be sold unless they are subsequently so registered
or qualified, or are otherwise subject to any applicable exemption
from
such registration requirements;
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(d)
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each
Purchaser is an "accredited investor" as
such term is defined in Rule 501 of Regulation D promulgated by the
Securities and Exchange Commission under the Act;
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(e)
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the
Purchasers have consulted with an attorney regarding legal matters
concerning the purchase and ownership of the Shares, and with a tax
advisor regarding the tax consequences of purchasing such Shares;
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(f)
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no
broker, dealer or other party has provided services in connection
with
this transaction for which any commission or other compensation is
owed;
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(g)
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all
of the assets pertaining to the COHQ Business have been transferred
or
quitclaimed to SBFS prior to the Effective Date; and
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(i)
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the
Company has no remaining accounts payable pertaining to the COHQ
Business,
and the Company does not remain subject to the obligations of any
agreement pertaining to the COHQ Business or any assets of the COHQ
Business, including without any limitation, the Transferred Assets.
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6.
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General
Provisions.
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(a)
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Notices. All
notices, requests, demands and other communications to be given hereunder
shall be in writing and shall be deemed to have been duly given on
the
date of personal service or transmission by fax if such transmission
is
received during the normal business hours of the addressee, or on
the
first business day after sending the same by overnight courier service
or
by telegram, or on the third business day after mailing the same
by first
class mail, or on the day of receipt if sent by certified or registered
mail, addressed as set forth below, or at such other address as any
party
may hereafter indicate by notice delivered as set forth in this Section
6(a):
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Purchasers
& SBFS:
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Xx.
Xxxxxx Xxxxx
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Mr.
Xxxxx Xxxxx
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0000
Xxxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
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Xxxxxxx
Xxxxx, XX 00000
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Attn:
Mr. Xxxxx Xxxxx
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Telephone:
(000) 000-0000
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Fax:
(310) 540--7562
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Sellers:
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American
Nano Silicon Technology, Inc.
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c/o
Xxxxxxx Xxxx
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00
Xxxxxxxx Xxxxx
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Xxxx
Xxxxxxx, XX 00000
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Telephone:
(000) 000-0000
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Fax:
(000) 000-0000
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(b)
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Binding
Agreement; Assignment. This
Agreement shall constitute the binding agreement of the parties hereto,
enforceable against each of them in accordance with its
terms. This Agreement shall inure to the benefit of each of the
parties hereto, and their respective successors and permitted assigns;
provided, however,
that this
Agreement may not be assigned (whether by contract or by operation
of law)
by the Purchaser without the prior written consent of the Seller,
which
may be withheld or delayed in the Seller’s sole discretion.
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(c)
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Entire
Agreement. This
Agreement constitutes the entire and final agreement and understanding
between the parties with respect to the subject matter hereof and
the
transactions contemplated hereby, and supersedes any and all prior
oral or
written agreements, statements, representations, warranties or
understandings between the parties, all of which are merged herein
and
superseded hereby.
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(d)
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Waiver. No
waiver
of any provision of this Agreement shall be deemed to be or shall
constitute a waiver of any other provision, whether or not similar,
nor
shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the
waiver.
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(e)
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Counterparts. This
Agreement may be executed in one or more counterparts, each of which
shall
be deemed an original, but all of which together shall constitute
one and
the same instrument.
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(f)
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Further
Documents and Acts. Each
party
agrees to execute such other and further documents and to perform
such
other and further acts as may be reasonably necessary to carry out
the
purposes and provisions of this Agreement.
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(g)
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Governing
Law; Venue. This
Agreement shall be governed by and construed in accordance with the
internal laws of the State of California, without giving effect to
the
principles of conflicts of laws applied thereby. The parties
hereby accept the exclusive jurisdiction of the courts of the State
of
California sitting in and for the County of Orange.
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(h)
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Severable
Provisions. The
provisions of this Agreement are severable, and if any one or more
provisions is determined to be illegal, indefinite, invalid or otherwise
unenforceable, in whole or in part, by any court of competent
jurisdiction, then the remaining provisions of this Agreement and
any
partially unenforceable provisions to the extent enforceable in the
pertinent jurisdiction, shall continue in full force and effect and
shall
be binding and enforceable on the parties.
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(i)
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No
Third Party Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns and is not for the benefit
of,
nor may any provision hereof be enforced by, any other person.
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SIGNATURES
ON NEXT PAGE
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
and year first above written.
THE
PURCHASERS:
WITNESS:
/s/
Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
/s/
Xxxxx
Xxxxx
Xxxxx
Xxxxx
SBFS:
WITNESS:
South
Bay Financial Solutions, Inc.,
a
Nevada corporation
/s/
Xxxxxx
Xxxxx
By: Xxxxxx
Xxxxx
__________________________
Its: Director
THE
SELLER:
WITNESS:
American
Nano Silicon Technology, Inc.,
a
California corporation
/s/
Pu
Fachun
By:
Pu
Fachun
__________________________
Its: President
and CEO
