Exhibit 10.2
INTERNATIONAL BUILDING TECHNOLOGIES, CO., LTD.
AMENDMENT TO ASSET SALE AND PURCHASE AGREEMENT
THIS AMENDMENT to the Asset Sale and Purchase Agreement originally dated
July 8, 2007 is effective as of this 5th day of December 2007. This Amended
Asset Sale and Purchase Agreement is made by and between Suining Yinfa
Construction and Engineering Co., Ltd., (the "Company"), a China corporation;
and International Building Technologies, Co., Ltd. ("IBT" or the "Purchaser"), a
Hong Kong corporation, and a wholly owned subsidiary of International Building
Technologies Group, Inc., a US publicly traded company (OTCBB:INBG)
WHEREAS, the Company and Purchaser desire to change the terms of the Asset
Sale and Purchase Agreement for the benefit of both parties.
NOW, THEREFORE, in consideration of the mutual covenants herein stated, it
is agreed as follows:
WHEREAS, the Company desires to sell to the Purchaser 51% interest in
certain contracts and agreements (the "Company Assets") in return for Company in
order to become part of a US publicly traded company and to potentially gain
certain rights to use and exploit IBT's panel building technology (the
"Technology") either now or in the future.
WHEREAS, the Purchaser desires to purchase the Assets as hereinafter
provided;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto agree as follows:
1. Purchase of Assets. After the closing of this Agreement (the "Closing"),
commencing January 1, 2008, upon the basis of the covenants, warranties and
representations of the Purchaser set forth in this Agreement, the Company will
sell, transfer, assign, and deliver to the Purchaser 51% interest in certain
contracts (the "Assets" or "Company Assets"), as set forth in Exhibit A, clear
of all liens, pledges, rights of third parties and any other encumbrances,
except as otherwise may be permitted hereunder.
2. Compensation. Purchaser agrees to the following:
(a) Note. Payment to Company in the form of a Convertible Promissory Note
in the amount of $350,000 USD attached herein as Exhibit B, and briefly outlined
as follows:
3. Restrictive Legend. All shares of the Stock to be delivered hereunder
shall bear a restrictive legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS A REGISTRATION STATEMENT
WITH RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT."
4. Redemption Rights. Subject to the applicable provisions of Nevada law,
the Purchaser, at the option of its directors, and with the consent of a
majority of the stockholders of the Series E Preferred Stock, may at any time or
from time to time redeem the whole or any part of the outstanding Series E
Preferred Stock. Any such redemption shall be prorate with respect to all of the
holders of the Series E Preferred Stock. Upon redemption the Company shall pay
for each share redeemed the Market Value, payable in cash. Such redemption shall
be on an all-or-nothing basis.
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5. Optional Stock Purchase Agreement.
(a) Upon signing this agreement, both Parties agree to pursue a stock
purchase agreement of the Company by IBT based upon terms and
conditions to be decided between the two parties and to be
memorialized in subsequent documentation.
(b) Both parties understand that such a Stock Purchase Agreement will be
dependent on an obtaining reliable representation from the Company
including an audit of the Company's financials according to US GAAP
standards, the cost of which will be born by the Company.
6. Management of Assets.
(a) IBT shall provide management personnel to the Assets, including
Project Management, Accounting Supervision and Controller commencing
January 1, 2008. IBT
(b) All financial books and records for the Assets will be maintained by
IBT commencing January 1, 2008.
7. Profit Sharing.
(a) Profits shall be shared between the Parties either on a quarterly
basis or upon completion of the Contract being acquired on the
following basis: IBT 51% and Company 49%.
(b) Any potential losses will be shared between the Parties according to
percentage ownership of the Assets; however, the loss share for which
IBT will be responsible will be limited to no more than $100,000 USD.
8. Reversal of Agreement. The Agreement between the Parties may be reversed
and the original Convertible Promissory Note returned to each of the Parties if
one of the following conditions prevails:
(a) IBT is unable to maintain the terms and conditions of the Asset Sale
and Purchase Agreement. IBT
(b) Company is unable to maintain the Assets or continue operations.
(c) Company is unable to obtain approval from the local government
authority for changing registration of shareholders formally in
according to this agreement.
9. Representations and Warranties of the Company. Where a representation
contained in this Agreement is qualified by the phrase "to the best of the
Company's knowledge" (or words of similar import), such expression means that,
after having conducted a due diligence review, the Company believes the
statement to be true, accurate, and complete in all material respects. Knowledge
shall not be imputed nor shall it include any matters which such person should
have known or should have been reasonably expected to have known. The Company
represents and warrants to the Purchaser as follows:
(a) Power and Authority. The Company has full power and authority to
execute, deliver, and perform this Agreement and all other agreements,
certificates or documents to be delivered in connection herewith,
including, without limitation, the other agreements, certificates and
documents contemplated hereby (collectively the "Other Agreements").
(b) Binding Effect. Upon execution and delivery by the Company, this
Agreement and the Other Agreements shall be and constitute the valid,
binding and legal obligations of the Company, enforceable against the
Company in accordance with the terms hereof and thereof, except as the
enforceability hereof or thereof may be subject to the effect of (i)
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally, and
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(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) Effect. Neither the execution and delivery of this Agreement or the
Other Agreements nor full performance by the Company of its
obligations hereunder or thereunder will violate or breach, or
otherwise constitute or give rise to a default under, the terms or
provisions of the Articles of Incorporation or Bylaws of the Company
or, of any contract, commitment or other obligation of the Company or
the Company or necessary for the operation of the Company following
the Closing or any other contract, commitment, or other obligation to
which the Company or the Company is a party, or create or result in
the creation of any encumbrance on any of the property of the Company.
The Company is not in violation of its Articles of Incorporation, as
amended, it's Bylaws, as amended, or of any indebtedness, mortgage,
contract, lease, or other agreement or commitment.
(d) No Consents. No consent, approval or authorization of, or
registration, declaration or filing with any third party, including,
but not limited to, any governmental department, agency, commission or
other instrumentality, will, except such consents, if any, delivered
or obtained on or prior to the Closing, be obtained or made by the
Company prior to the Closing to authorize the execution, delivery and
performance by the Company of this Agreement or the Other Agreements
which are listed on Schedule A.
(e) Litigation. There is no action, suit, hearing, inquiry, review,
proceeding or investigation by or before any court or governmental
body pending, or threatened against or involving the Company, its
affiliates or the Company or with respect to the activities of any
employee or agent of the Company. Neither the Company nor the Company
have received any notice of any event or occurrence which could result
in any such action, suit, hearing, inquiry, review, proceeding or
investigation.
(f) Records. The books of account and minute books of the Company are
complete and correct, and reflect all those transactions involving its
business which properly should have been set forth in such books.
(g) Internal Accounting Controls. The Company maintains a system of
internal accounting controls sufficient, in the judgment of the
Company's board of directors, to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences. The books of account, corporate records
and minute books of the Company are complete and correct in all
material respects.
(h) The Company's Representations and Warranties True and Complete. All
representations and warranties of the Company in this Agreement and
the Other Agreements are true, accurate and complete in all material
respects as of the Closing.
(i) No Knowledge of the Purchaser's Default. The Company has no knowledge
that any of the Purchaser's representations and warranties contained
in this Agreement or the Other Agreements are untrue, inaccurate or
incomplete or that the Purchaser is in default under any term or
provision of this Agreement or the Other Agreements.
(j) No Untrue Statements. No representation or warranty by the Company in
this Agreement or in any writing furnished or to be furnished pursuant
hereto, contains or will contain any untrue statement of a material
fact, or omits, or will omit to state any material fact required to
make the statements herein or therein contained not misleading.
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(k) Reliance. The foregoing representations and warranties are made by the
Company with the knowledge and expectation that the Purchaser is
placing complete reliance thereon.
10. Representations and Warranties of the Purchaser. Where a representation
contained in this Agreement is qualified by the phrase "to the best of the
Purchaser's knowledge" (or words of similar import), such expression means that,
after having conducted a due diligence review, the Purchaser believes the
statement to be true, accurate, and complete in all material respects. Knowledge
shall not be imputed nor shall it include any matters which such person should
have known or should have been reasonably expected to have known. The Purchaser
hereby represents and warrants to the Company as follows:
(a) Power and Authority. The Purchaser has full power and authority to
execute, deliver and perform this Agreement and the Other Agreements.
(b) Binding Effect. Upon execution and delivery by the Purchaser, this
Agreement and the Other Agreements shall be and constitute the valid,
binding and legal obligations of the Purchaser enforceable against the
Purchaser in accordance with the terms hereof or thereof, except as
the enforceability hereof and thereof may be subject to the effect of
(i) any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally,
and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) Consents. Company has obtained consents from Customers allowing the
assignment of said contract from Company to Purchaser to take place
without penalty or consequence. No consent, approval or authorization
of, or registration, declaration or filing with any third party,
including, but not limited to, any governmental department, agency,
commission or other instrumentality, will, except such consents, if
any, delivered or obtained on or prior to the Closing, be obtained or
made by the Purchaser prior to the Closing to authorize the execution,
delivery and performance by the Purchaser of this Agreement or the
Other Agreements.
(d) The Purchaser's Representations and Warranties True and Complete. All
representations and warranties of the Purchaser in this Agreement and
the Other Agreements are true, accurate and complete in all material
respects as of the Closing.
(e) No Knowledge of the Company's Default. The Purchaser has no knowledge
that any of the Company's representations and warranties contained in
this Agreement or the Other Agreements are untrue, inaccurate or
incomplete in any respect or that the Company is in default under any
term or provision of this Agreement or the Other Agreements.
(f) No Untrue Statements. No representation or warranty by the Purchaser
in this Agreement or in any writing furnished or to be furnished
pursuant hereto, contains or will contain any untrue statement of a
material fact, or omits, or will omit to state any material fact
required to make the statements herein or therein contained not
misleading.
(g) Reliance. The foregoing representations and warranties are made by the
Purchaser with the knowledge and expectation that the Company is
placing complete reliance thereon.
11. Conditions Precedent to Obligations of the Purchaser. All obligations
of the Purchaser under this Agreement are subject to the fulfillment, prior to
or at the Closing, of the following conditions:
(a) Representations and Warranties True at the Closing. The
representations and warranties of the Purchaser herein shall be deemed
to have been made again as of the Closing, and then be true and
correct, subject to any changes contemplated by this Agreement. The
Purchaser shall have performed all of the obligations to be performed
by it hereunder on or prior to the Closing.
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(b) Deliveries at the Closing. The Purchaser shall have delivered to the
Company at the Closing all of the documents required to be delivered
hereunder.
12. Conditions Precedent to Obligations of the Company. All obligations of
the Company under this Agreement are subject to the fulfillment, prior to or at
the Closing, of the following conditions:
(a) Contracts and Documents. The Company shall have delivered to the
Purchaser the contracts, agreements, purchase orders and other
documents evidencing the ownership and rights to the Assets described
in Exhibit A attached herein.
(b) Representations and Warranties True at Closing. The representations
and warranties of the Company herein shall be deemed to have been made
again at the Closing, and then be true and correct, subject to any
changes contemplated by this Agreement. The Company shall have
performed all of the obligations to be performed by it hereunder on or
prior to the Closing.
(c) Payment of the Compensation. The Purchaser shall have delivered the
Compensation.
13. The Nature and Survival of Representations, Covenants and Warranties.
All statements and facts contained in any memorandum, certificate, instrument,
or other document delivered by or on behalf of the parties hereto for
information or reliance pursuant to this Agreement, shall be deemed
representations, covenants and warranties by the parties hereto under this
Agreement. All representations, covenants and warranties of the parties shall
survive the Closing and all inspections, examinations, or audits on behalf of
the parties, shall expire one year following the Closing.
14. Records of the Company. For a period of five years following the
Closing, the books of account and records of the Company pertaining to all
periods after the Closing shall be available for inspection by the Company for
use in connection with tax audits.
15. Further Conveyances and Assurances. After the Closing, the Company and
the Purchaser will, without further cost or expense to, or consideration of any
nature from the other, execute and deliver, or cause to be executed and
delivered, to the other, such additional documentation and instruments of
transfer and conveyance, and will take such other and further actions, as the
other may reasonably request as more completely to sell, transfer and assign to
and fully vest in the Purchaser ownership of the Assets and to consummate the
transactions contemplated hereby.
16. Closing. The Closing of the sale and purchase contemplated hereunder
shall be on or before July 31, 2007, subject to acceleration or postponement
from time to time as the Company and the Purchaser may mutually agree.
17. Deliveries at the Closing by the Company. At the Closing the Company
shall deliver to the Purchaser:
(a) Contracts, Agreements, purchase orders, rights assignments and other
evidence of the Assets set forth in Exhibit A with the full consent of
the Customers with whom the Assets are contracted.
(b) Any other document which may be necessary to carry out the intent of
this Agreement.
18. Deliveries at the Closing by the Purchaser. At the Closing, the
Purchaser shall deliver to the Company the following:
(a) Compensation as set forth above.
(b) Convertible Promissory Note in the amount of $350,000 USD attached
herein as Exhibit B.
(c) Any other document which may be necessary to carry out the intent of
this Agreement.
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19. No Assignment. This Agreement shall not be assignable by any party
without the prior written consent of the other parties, which consent shall be
subject to such parties' sole, absolute and unfettered discretion.
20. Brokerage. The Company and the Purchaser agree to indemnify and hold
harmless each other against, and in respect of, any claim for brokerage or other
commissions relative to this Agreement, or the transactions contemplated hereby,
based in any way on agreements, arrangements, understandings or contracts made
by either party with a third party or parties whatsoever.
21. Mediation and Arbitration. All disputes arising or related to this
Agreement must exclusively be resolved first by mediation with a mediator
selected by the parties, with such mediation to be held in Alameda, CA. If such
mediation fails, then any such dispute shall be resolved by binding arbitration
under the Commercial Arbitration Rules of the American Arbitration Association
in effect at the time the arbitration proceeding commences, except that (a)
California law and the Federal Arbitration Act must govern construction and
effect, (b) the locale of any arbitration must be in Alameda, California, and
(c) the arbitrator must with the award provide written findings of fact and
conclusions of law. Any party may seek from a court of competent jurisdiction
any provisional remedy that may be necessary to protect its rights or assets
pending the selection of the arbitrator or the arbitrator's determination of the
merits of the controversy. The exercise of such arbitration rights by any party
will not preclude the exercise of any self-help remedies (including without
limitation, setoff rights) or the exercise of any non-judicial foreclosure
rights. An arbitration award may be entered in any court having jurisdiction.
(a) Attorney's Fees. In the event that it should become necessary for any
party entitled hereunder to bring suit against any other party to this Agreement
for enforcement of the covenants contained in this Agreement, the parties hereby
covenant and agree that the party or parties who are found to be in violation of
said covenants shall also be liable for all reasonable attorney's fees and costs
of court incurred by the other party or parties that bring suit.
22. Benefit. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by each of the
parties hereto, and his respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
23. Notices. All notices, requests, demands, and other communications
hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, or
by telecopy or e-mail, if to the Company, addressed to Suining Yinfa
Construction and Engineering Co., Ltd. At 000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxx Xxxxxxxx, 000000 PRC,, Telephone number, 000.000.0000 and Facsimile
number, 825.222.2892 and if to the Purchaser, addressed to IBT Group Inc. c/o
IBT Group Inc., 0000 Xxxxxx Xxx Xxxxxxx, Xxxxx 000, Xxxxxxx XX, XXX, 00000
Telephone number, 000.000.000.0000 and Facsimile number, 000.000.000.0000.
24. Any party hereto may change its address upon 10 days' written notice to
any other party hereto.
25. Construction. Words of any gender used in this Agreement shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
26. Waiver. No course of dealing on the part of any party hereto or its
agents, or any failure or delay by any such party with respect to exercising any
right, power or privilege of such party under this Agreement or any instrument
referred to herein shall operate as a waiver thereof, and any single or partial
exercise of any such right, power or privilege shall not preclude any later
exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
27. Cumulative Rights. The rights and remedies of any party under this
Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
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28. Invalidity. In the event any one or more of the provisions contained in
this Agreement or in any instrument referred to herein or executed in connection
herewith shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality, or unenforceability shall not
affect the other provisions of this Agreement or any such other instrument.
29. Incorporation by Reference. The Attachments and Schedules to this
Agreement referred to or included herein constitute integral parts to this
Agreement and are incorporated into this Agreement by this reference.
30. Controlling Agreement. In the event of any conflict between the terms
of this Agreement or any of the Other Agreements or exhibits referred to herein,
the terms of this Agreement shall control.
31. Law Governing; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to any conflicts of laws provisions thereof. Each party hereby irrevocably
submits to the personal jurisdiction of the United States District Court for
Alameda County, California, as well as of the Courts of the State of California
over any suit, action or proceeding arising out of or relating to this
Agreement. Each party hereby irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of the
venue of any such mediation, arbitration, suit, action or proceeding brought in
any such county and any claim that any such mediation, arbitration, suit, action
or proceeding brought in such county has been brought in an inconvenient forum.
32. Multiple 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. A facsimile transmission
of this signed Agreement shall be legal and binding on all parties hereto.
33. Entire Agreement. This instrument and the attachments hereto contain
the entire understanding of the parties and may not be changed orally, but only
by an instrument in writing signed by the party against whom enforcement of any
waiver, change, modification, extension, or discharge is sought.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, this Agreement has been executed on the date first written
above
FOR COMPANY
/s/ Mr. Xxxx Xxx
------------------------------------------------------
Suining Yinfa Construction and Engineering Co., Ltd.
Mr. Xxxx Xxx
General Manager
Date:
FOR: PURCHASER
By /s/ Xxxxxxx Xxxxx
----------------------------------------------------
Xxxxxxx Xxxxx, CEO
IBT Co., Ltd. of Hong Kong, China.
FOR: International Building Technologies Group, Inc.
IBT
By /s/ Xxxxxxx Xxxxx
----------------------------------------------------
Xxxxxxx Xxxxx, President
Date:
By /s/ Xxxxx Xxxx
----------------------------------------------------
Xxxxx Xxxx, Director
Date:
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EXHIBIT A:
Company Assets (signed contract): $50,000,000. RMB
ROSE BEST PROJECT
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EXHIBIT B
$350,000 USD Convertible Promissory Note
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