STOCK PURCHASE AND SHARE EXCHANGE AGREEMENT by and among CORPHQ INC. a California corporation, AMERICAN NANO SILICON TECHNOLOGY, INC. a Delaware corporation,
Exhibit 10.1
EXECUTION
COPY
by
and
among
CORPHQ
INC.
a
California corporation,
AMERICAN
NANO SILICON TECHNOLOGY, INC.
a
Delaware corporation,
THE
SHAREHOLDERS OF AMERICAN NANO SILICON TECHNOLOGY, INC. LISTED ON SCHEDULE
3.2,
and
Nanchong
Chunfei Nano-Silicon Technologies Co. Ltd.
a
limited
liability company of the People’s Republic of China
Effective
as of May 24, 2007
EXECUTION
COPY
STOCK
PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS
STOCK PURCHASE AGREEMENT AND
SHARE EXCHANGE (this “Agreement”),
is made and entered into as
of this 24th
day of
May, 2007, by and among CorpHQ Inc. (“COHQ"),
a
corporation organized under the laws of California, with its principal place
of
business located at 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx
XX 00000; American Nano Silicon Technology, Inc. (“ANST”),
a
Delaware corporation with its principal place of business located at 00 Xxxxxxxx
Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000; Nanchong Chunfei Nano-Silicon
Technologies Co. Ltd. (“NST”),
a
limited liability company organized under the laws of the People’s Republic of
China (the “PRC”)
and
a wholly-owned subsidiary of ANST, with its principal place of business located
at Chunfei Industrial Park of Xiaolong Economic Development Zone, Gaoping
Nanchong City, Sichuan, PRC, and the ANST shareholders listed on Schedule 3.2 attached
hereto and made a part hereof (“ANST
Shareholders”) (collectively, ANST, NST and the ANST Shareholders shall
be known as the “ANST
Group”).
Premises
A.
This Agreement assumes that prior to the Closing contemplated by this Agreement,
COHQ will further amend its Articles of Incorporation to provide for a reduction
of the number of authorized shares from two billion (2,000,000,000) shares
of
COHQ Common Stock, par value $.001 per share (“Old COHQ
Common
Stock”) to two hundred million (200,000,000) shares of Common Stock, par
value $.000001 per share (“New COHQ
Common
Stock”), and for the reverse stock split of one thousand three hundred
and two (1,302) shares of Old COHQ Common Stock into one share of New COHQ
Common Stock. The transactions contemplated by this paragraph are hereinafter
referred to as the “Recapitalization”).
B.
This Agreement provides for the acquisition of 100% of the issued and
outstanding capital stock of ANST owned by the ANST Shareholders, making ANST
a
wholly-owned subsidiary of COHQ, in exchange for the issuance to the ANST
Shareholders of (i) 25,181,450 authorized but unissued shares of New COHQ Common
Stock, pro rata in accordance with their respective percentage interests in
ANST. Simultaneously, there shall be a sale by Xxxxxx Xxxxx, an adult individual
residing in the County of Los Angeles, State of California (“Crane”)
and Xxxxx Xxxxx, an adult individual residing in the County of Los Angeles,
State of California (“Davis”
and, collectively with Crane, the “Sellers”)
to one of the ANST Shareholders, Xx. Xxxxxxx Xxxx, an adult individual residing
in the County of Xxxxxx, State of New Jersey (the “Buyer”)
of
558,520 shares of New COHQ Common Stock owned by the Sellers following the
Recapitalization, in consideration of the sum of US$280,000 paid in cash. The
25,739,970 resulting from the combination of the shares of New COHQ Common
Stock
received by virtue of Clauses (i) and (ii) above shall constitute 99% of the
New
COHQ Common Stock to be issued and outstanding, fully diluted, after the
transactions contemplated hereby (the “Transactions”).
C.
The boards of directors of COHQ and ANST have respectively determined, subject
to the terms and conditions set forth in this Agreement, that the Transactions
are desirable and in the best interests of their shareholders. This Agreement
is
being entered into for the purpose of setting forth the terms and conditions
of
the proposed Transactions.
D.
The boards of directors of COHQ and ANST have determined that it would be in
the
best interests of COHQ and its shareholders to separate COHQ’s current business
(the “Current
COHQ
Business”) from COHQ after the Transactions close, and to such effect to
contribute the entirety of the Current COHQ Business to South Bay Financial
Solutions, Inc., a Nevada corporation and existing subsidiary of COHQ (“COHQ
Sub”), and, after the Transactions close, sell the stock of COHQ Sub to
the Sellers in exchange for COHQ Sub assuming all of the liabilities of COHQ
(the “Assumed
COHQ
Liabilities”) and agreeing to indemnify and hold COHQ and its officers,
directors and shareholders harmless from all Assumed COHQ Liabilities (the
“Subsidiary
Transaction”).
E.
The parties desire that the exchange of all of the issued and outstanding
capital stock of ANST for 25,181,450 authorized but unissued shares of New
COHQ
Common Stock qualify as a tax free exchange meeting the requirements of Article
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the “Code”).
Agreement
NOW,
THEREFORE, on the stated
premises and for and in consideration of the mutual covenants and agreements
hereinafter set forth and the mutual benefits to the parties to be derived
herefrom, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
ARTICLE
I
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF THE SELLERS
As
an inducement to and to obtain the
reliance of ANST, the Sellers jointly and severally represent and warrant as
follows, all of which is subject to the disclosures attached to this Agreement
as “Schedules”.
Section
1.1
Organization of
COHQ.
COHQ is a corporation duly organized, validly existing, and in good
standing
under the laws of California and has the corporate power and is duly authorized,
qualified, franchised and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign corporation
in
each jurisdiction, if any, in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification, or where the failure to be so qualified would not produce a
material adverse effect upon the business, operations, financial condition
or
prospects of COHQ (a “Material
Adverse
Effect”). The Sellers have heretofore made available to the
ANST Group complete and correct copies of the Articles of Incorporation and
Bylaws of COHQ, and amendments thereto, as in effect on the date
hereof. The execution and delivery of this Agreement does not and the
consummation of the Transactions in accordance with the terms hereof will not
violate any provision of COHQ’s Articles of Incorporation or
Bylaws. COHQ has full power, authority and legal right and has taken
all action required by law, its Articles of Incorporation, its Bylaws or
otherwise to authorize the execution and delivery of this Agreement.
Section
1.2
Capitalization. The
authorized capitalization of COHQ presently consists of two billion
(2,000,000,000) shares of Old COHQ Common Stock. As of the date
hereof, COHQ has 1,065,753,214 shares of Old COHQ Common Stock issued and
outstanding. Prior to the Closing, the Recapitalization will effect
the change of the authorized capitalization of COHQ to consist of two hundred
million authorized shares of New COHQ Common Stock. As of the Closing
date, and after giving effect to the Transaction, COHQ will have not more than
26,000,000 shares of New COHQ Common Stock issued and outstanding. All issued
and outstanding shares of Old COHQ Common Stock are, and when issued as
contemplated in the Transactions all shares of New COHQ Common Stock to be
issued and outstanding after giving effect to the Transactions will be, legally
issued, fully paid and non-assessable and are (in the case of Old COHQ Common
Stock) or will be (in the case of New COHQ Common Stock) not issued in violation
of the preemptive or other rights of any person. COHQ has no
securities, warrants or options authorized or issued, except for those disclosed
in Schedule
1.2.
Section
1.3
Subsidiaries. Other
than as set forth
on Schedule 1.3
attached hereto, COHQ has no
subsidiaries.
Section
1.4
Tax Matters; Books and Records.
|
(a)
|
The
books and records, financial and others, of COHQ are in all material
respects complete and correct and have been maintained in accordance
with
good business accounting practices;
and
|
|
(b)
|
COHQ
has no liabilities with respect to the payment of any federal, state,
county, or local income, franchise, sales, use or other taxes (including
any deficiencies, interest or penalties), other than in respect of
liens
for taxes not yet due or payable, which will constitute one of the
Assumed
COHQ Liabilities.
|
Section
1.5
Litigation and
Proceedings. There are no actions, suits, proceedings or
investigations pending or threatened by or against or affecting the Sellers
or
COHQ or their respective properties, at law or in equity, before any court
or
other governmental agency or instrumentality, domestic or foreign or before
any
arbitrator of any kind that would have a Material Adverse
Effect. COHQ is not in default with respect to any judgment, order,
writ, injunction, decree, award, rule or regulation of any court, arbitrator
or
governmental agency or instrumentality, nor, to the best knowledge of Sellers,
do there exist any circumstances which, after reasonable investigation, are
likely to result in the discovery of such a default.
Section
1.6
Information. The
information concerning COHQ as set forth in this Agreement and in the attached
Schedules is complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances under which
they were made, not misleading.
Section
1.7
Contracts. On
the date of the
Closing, after giving effect to the Transactions and the Subsidiary
Transaction:
|
(a)
|
there
will be no material contracts, agreements, leases, franchises, license
agreements, or other commitments to which COHQ is a party or by which
it
or any of its properties are bound, which have not been assigned
to, or
assumed by, COHQ Sub, Sellers and/or another party;
and
|
|
(b)
|
COHQ
will not be party to any contract, agreement, commitment or instrument
or
subject to any charter or other corporate restriction or any judgment,
order, writ, injunction, decree or award which does, or in the future
may
cause a Material Adverse Effect.
|
Section
1.9
Compliance With Laws
and
Regulations. COHQ has complied
with
all applicable statutes and regulations of any federal, state, local or other
governmental entity or agency thereof, except to the extent that noncompliance
would not create or give rise to a Material Adverse Effect.
Section
1.10
Approval of
Agreement. The directors
of COHQ
have authorized the execution and delivery of this Agreement and have approved
the Transactions.
Section
1.11
Material Transactions
or
Affiliations. Other than as contemplated herein with respect
to the Subsidiary Transaction, there are no material contracts or agreements
of
arrangement between COHQ and any person, who was at the time of such contract,
agreement or arrangement an officer, director or person owning of record, or
known to beneficially own ten percent (10%) or more of the issued and
outstanding shares of Common Stock of COHQ and which is to be performed in
whole
or in part after the date hereof. COHQ has no commitment, whether
written or oral, to lend any funds to, borrow any money from or enter into
material transactions with any such affiliated person.
Section
1.12
No Conflict With Other
Instruments. The execution of this Agreement and the
consummation of the Transactions will not result in the breach of any term
or
provision of, or constitute an event of default under, any material indenture,
mortgage, deed of trust or other material contract, agreement or instrument
to
which COHQ is a party or to which any of its properties or operations are
subject.
Section
1.13
Governmental
Authorizations. Except for
compliance
with federal and state securities and corporation laws, as hereinafter provided,
no authorization, approval, consent or order of, or registration, declaration
or
filing with, any court or other governmental body is required in connection
with
the execution and delivery by COHQ of this Agreement and the consummation of
the
Transactions.
Section
1.14
SEC Reporting.
(a)
COHQ is a small business issuer (as defined in Item(a)(1) of Regulation S-B
(“Regulation
S-B”) promulgated by the Securities and Exchange Commission (the “SEC”)
under the Securities Exchange Act of 1934 (the “Exchange
Act”) and the Securities Act of 1933 (the “Securities
Act”).
(b)
COHQ has never been a reporting company (as defined in Item 10(b)(3) of
Regulation S-B), and no class of capital stock of COHQ has ever been, or been
required to be, registered under the Exchange Act.
Section
1.15
COHQ Financial
Statements. The Sellers
have caused
to be prepared and delivered to Buyer, and Buyer has accepted from the Sellers,
financial statements audited by a PCAOB-registered accounting firm (the “COHQ
Financial
Statements”), which Financial Statements fairly present the financial
condition of COHQ as of the date of this Agreement and as of the Closing date
and the results of operations of COHQ for the periods indicated
therein. The COHQ Financial Statements include the related opinion of
Xxxxx & Associates, Chartered, COHQ’s independent auditing
firm. To the extent that the COHQ Financial Statements do not include
all of the COHQ financial statements that COHQ will be required to file with
the
SEC in order to register the New COHQ Common Stock under the Exchange Act,
the
books and records of COHQ, which will be delivered to the Buyer at the Closing,
contain all of the information that will be required to prepare the missing
financial statements and to perform any required audits.
Section
1.16
No General Solicitation
or
Advertising. In issuing
New COHQ
Common Stock under this Agreement, neither COHQ nor anyone acting on its behalf
has offered to sell the New COHQ Common Stock by any form of general
solicitation or advertising.
Section
1.17
Questionable Payments
and
Off-Balance Sheet Arrangements. Neither COHQ
nor any
director, officer, agent, employee or other person associated with or acting
on
behalf of COHQ, has used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; made
any direct or indirect unlawful payments to government officials or employees
from corporate funds; established or maintained any unlawful or unrecorded
fund
of corporate monies or other assets; made any false or fictitious entries on
the
books of record of any such corporations; made any off-balance sheet
arrangements; or made any bribe, rebate, payoff, influence payment, kickback
or
other unlawful payment.
Section
1.18
Indebtedness. The
COHQ Financial
Statements will set forth as of the dates and periods to be indicated on such
financial statements, all outstanding secured and unsecured Indebtedness of
COHQ, as applicable, or for which COHQ, as applicable, has
commitments. For the purposes of this Section 1.18, “Indebtedness”
shall mean (a) any liabilities for borrowed money or amounts owed (other than
trade accounts payable incurred in the ordinary course of business), (b) all
guaranties, endorsements and other contingent obligations in respect of
Indebtedness of others, whether or not the same are or should be reflected
in
COHQ’s balance sheet (or the notes thereto), except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in
the
ordinary course of business; and (c) the present value of any lease payments
due
under leases required to be capitalized in accordance with GAAP. COHQ
is not in default with respect to any Indebtedness, except where such default
would not produce a Material Adverse Effect. Except as expressly set
forth on Schedule 1.18 attached hereto, all Indebtedness will be transferred
to
COHQ Sub as part of the Subsidiary Transaction.
Section 1.19 Absence of Certain
Developments. Except as may
be
disclosed in this Agreement or in Schedule 1.19
attached hereto, since December 31, 2006, COHQ has not:
(a)
issued any stock, bonds or other corporate securities or any rights, options
or
warrants with respect thereto;
(b)
borrowed any amount or incurred or become subject to any liabilities (absolute
or contingent) except current liabilities incurred in the ordinary course of
business which are comparable in nature and amount to the current liabilities
incurred in the ordinary course of business during the comparable portion of
its
prior fiscal year, as adjusted to reflect the current nature and volume of
COHQs
business;
(c)
discharged or satisfied any lien or encumbrance or paid any obligation or
liability (absolute or contingent), other than current liabilities paid in
the
ordinary course of business;
(d)
declared or made any payment or distribution of cash or other property to
shareholders with respect to its stock, or purchased or redeemed, or made any
agreements so to purchase or redeem, any shares of its capital
stock;
(e)
sold, assigned or transferred any other tangible assets, or canceled any debts
or claims, except in the ordinary course of business;
(f)
sold, assigned or transferred any patent rights, trademarks, trade names,
copyrights, trade secrets or other intangible assets or intellectual property
rights, or disclosed any proprietary confidential information to any person
except to customers in the ordinary course of business;
(g)
suffered any substantial losses or waived any rights of material value, whether
or not in the ordinary course of business, or suffered the loss of any material
amount of prospective business;
(h)
made any changes in employee compensation except in the ordinary course of
business and consistent with past practices;
(i)
made capital expenditures or commitments therefor that aggregate in excess
of
$10,000;
(j)
entered into any other transaction other than in the ordinary course of
business, or entered into any other material transaction, whether or not in
the
ordinary course of business;
(k)
made charitable contributions or pledges in excess of $10,000;
(l)
suffered any material damage, destruction or casualty loss, whether or not
covered by insurance;
(m)
experienced any material problems with labor or management in connection with
the terms and conditions of their employment;
(n)
effected any two or more events of the foregoing kind which in the aggregate
would be material to ANST or NST; or
(o)
entered into an agreement, written or otherwise, to take any of the foregoing
actions.
Section
1.20
Due Diligence
Disclosure.
None of the documents made available to the Buyer by COHQ in response to an
email due diligence request made on April 11, 2007 (the “COHQ
Due
Diligence Documents”) contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein not misleading in the light of the circumstances under which
they were made.
ARTICLE
II
REPRESENTATIONS,
COVENANTS AND WARRANTIES OF ANST GROUP
As
an inducement to, and to obtain the
reliance of COHQ, the ANST Group, jointly and severally, represent and warrant
as follows, all of which is subject to the disclosures attached to this
Agreement as “Schedules”.
Section
2.1
Organization.
Each of ANST
and NST is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has the corporate
power and is duly authorized, qualified, franchised and licensed under all
applicable laws, regulations, ordinances and orders of public authorities to
own
all of its properties and assets and to carry on its business in all material
respects as it is now being conducted, including qualification to do business
as
a foreign entity in the country, provinces or states, as applicable in which
the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification, or where the failure to be so qualified
would not have a material adverse effect upon the business, operations,
financial conditions or prospect of the ANST and NST taken as a whole (an “ANST/NST
Material
Adverse Effect”). Included in the attached Schedules are
complete and correct copies of the respective Certificates of Incorporation,
Bylaws, other charter documents and amendments thereto as in effect on the
date
hereof of ANST and NST (collectively, the “Charter
Documents”). The execution and delivery of this Agreement does
not, and the consummation of the Transactions in accordance with the terms
hereof will not, violate any provision of the Charter Documents. ANST
and NST have full power, authority and legal right and have taken all action
required by the Charter Documents or otherwise to authorize the execution and
delivery of this Agreement.
Section
2.2
Capitalization. (A)
ANST’s authorized
capitalization consists of one hundred million shares (100,000,000) shares
of
common stock, par value $.00001 per share (“ANST
Common
Stock”), and no preferred stock. As of the date hereof, ANST
has 30,000 shares of ANST Common Stock issued and outstanding. All
issued and outstanding shares of ANST Common Stock have been legally issued,
fully paid, are non-assessable and not issued in violation of the preemptive
rights of any other person. ANST has no other securities, warrants or
options authorized or issued, nor does there exist any contract or instrument
which is convertible into, exercisable or exchangeable for any such security.
(B) The registered capital of NST is 1,000,000 RMB (“NST
Capital”). As of the date hereof, ANST is the registered owner
of ninety-five percent (95%) of the NST Capital, and Sichuan Chunfei Fine
Chemical Industry Co., Ltd. owns the other five percent (5%) of the NST
Capital. All issued and outstanding shares of ANST Common Stock and
NST Common Stock have been legally issued, fully paid, are non-assessable and
not issued in violation of applicable securities laws or the preemptive rights
of any other person. Neither ANST nor NST has other securities,
warrants, options or any rights to acquire securities of ANST or NST, as
applicable, authorized or issued, and neither ANST nor NST is a party to any
agreement, arrangement or understanding pursuant to which either ANST or NST
has
agreed to issue securities, warrants, options or rights to acquire securities
of
ANST or NST, as applicable.
Section
2.3
Subsidiaries.
NST is the
only subsidiary of ANST. NST has two controlled operating
subsidiaries: (a) Sichuan Chunfei Refined Chemicals Co. Ltd., a limited
liability company of the People’s Republic of China, of which NST is the
registered owner of ninety percent (90%) of the total issued and outstanding
equity interests as of the date hereof; and (b) Sichuan Hedi Veterinary
Medicines Co. Ltd., a limited liability company of the People’s Republic of
China, of which NST is the registered owner of ninety-two percent (92%) of
the
total issued and outstanding equity interests as of the date
hereof.
Section
2.4
Tax Matters, Books & Records.
(a) The
books
and records, financial and others of each of ANST and NST are in all material
respects complete and correct and have been maintained in accordance with good
business accounting practices;
(b) Neither
ANST nor NST has liabilities with respect to the payment of any country,
federal, state, province, county, local or other taxes (including any
deficiencies, interest or penalties), other than liens in respect of taxes
not
yet due and payable; and
(c) ANST
and
NST shall remain responsible for all of their respective debts and obligations
incurred prior to the Closing.
Section
2.5
Information and
Disclosure.
(a) Neither
this Agreement or the Schedules attached hereto nor any other documents,
certificates or instruments furnished to COHQ by or on behalf of ANST, NST
or
the ANST Shareholders in connection with the Transactions (collectively, the
“ANST
Disclosure Documents”) contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the statements
made herein or therein, in the light of the circumstances under which they
were
made herein or therein, not false or misleading.
(b) Neither
ANST nor NST has ever been a reporting company (as defined Item 10(b)(3) of
Regulation S-B), and no class of capital stock of ANST or NST has ever been,
or
been required to be, registered under the Exchange Act.
(c) Prior
to the Closing, ANST will cause to be prepared, audited by a PCAOB registered
accounting firm, and delivered to the Sellers all of the financial statements
of
ANST and its subsidiary that COHQ would be required to file with the SEC
pursuant to Item 9.01 of Form 8-K with respect to the Transactions if it were
subject to the reporting requirements of the Securities Exchange Act. (the
“ANST
Financial Statements”).
Section
2.6
ANST Financial
Statements. The balance
sheets, and
statements of income, changes in financial position and shareholders’ equity to
be contained in the ANST Financial Statements (i) will be prepared in accordance
with Item 9.01 of Form 8-K applied on a basis consistent with prior periods
(and, in the case of unaudited financial information, on a basis consistent
with
year-end audits), (ii) will be in accordance with the books and records of
the
ANST and NST, and (iii) will present fairly in all material respects the
consolidated financial condition of ANST and NST at the dates therein specified
and the results of its operations and changes in financial position for the
periods therein specified. The ANST Financial Statements will be
audited by, and include the related opinions of Bagell, Josephs, Xxxxxx &
Company, LLC, ANST’s independent audit firm.
Section
2.7
Title and Related
Matters. Each of ANST and NST has good and marketable title to
and is the sole and exclusive owner of all of its properties, inventory,
interests in properties and assets, real and personal (collectively, the "ANST
Assets") free and clear of all liens, pledges, charges or encumbrances
except those which would not have an ANST/NST Material Adverse
Effect.
Section
2.8
Litigation and
Proceedings. There are no actions, suits or proceedings
pending, or to the best knowledge of ANST and NST threatened, by or against
or
affecting ANST or NST, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a ANST/NST Material Adverse Effect and/or
that would result in any condition, circumstance, or situation that would
prohibit or otherwise materially interfere with the ability of ANST or NST
to
perform any of their respective obligations under this Agreement in any material
respect. Neither ANST nor NST has any knowledge of any default on its part
with
respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or instrumentality,
or of any circumstances which, with notice or the passage of time, or both,
would result in such a default.
Section
2.9
Contracts. On
the Closing
date:
(a)
Except
as disclosed in Schedule 2.9
attached hereto,
there are no material contracts, agreements, franchises, license agreements,
or
other commitments to which either ANST and/or NST, is a party or by which either
of them or any of their properties or assets are bound; and
(b) Except
as
disclosed in Schedule
2.9 attached hereto, neither ANST nor NST is a party to any contract,
agreement, commitment or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree or award which
may,
now or in the future (as far as ANST or NST, as applicable, can now foresee),
individually or in the aggregate, result in an ANST/NST Material Adverse
Effect.
Section
2.10
Intellectual
Property. Schedule
2.10
attached hereto sets forth all registered and unregistered intellectual property
owned or claimed by ANST or NST (excluding non-proprietary information otherwise
available to the industry or public or rights obtained pursuant to licenses
associated with software, and other intellectual property generally made
available for purchase or use by the industry or the public) and accurately
identifies, where applicable, the following for each item applicable to such
registered Intellectual Property: the filing date, issue date,
classification of invention or goods or services covered, country of origin,
licensor, license date, licensed subject matter, territorial limitations and
the
degree of exclusivity of use.
Section
2.11
No Conflict With Other
Instruments. The execution of this Agreement and
the consummation of the Transactions will not result in the breach of any term
or provision of, or constitute an event of default under, any material
indenture, mortgage, deed of trust or other material contract, agreement or
instrument to which ANST or NST is a party or to which any of its properties
or
operations are subject.
Section
2.12
Material Contract
Defaults. To
the best of ANST’s and NST’s knowledge, neither ANST nor NST is in default under
the terms of any outstanding contract, agreement, lease or other commitment,
and
there is no event of default in any such contract, agreement, lease or other
commitment which default has resulted in or is likely to produce, individually
or in the aggregate, an ANST/NST Material Adverse Effect.
Section
2.13
Governmental
Authorizations. Except for
compliance
with federal and state securities or corporation laws, or the applicable laws
of
the PRC or any other jurisdiction, as applicable, no authorization, approval,
consent or order of, or registration, declaration or filing with, any court
or
other governmental body is required in connection with the execution and
delivery by ANST, NST or any ANST Shareholder of this Agreement and the
consummation of the Transactions.
Section
2.14
Compliance with Laws
and
Regulations.
The business of each of ANST and NST has been and is presently being
conducted
in accordance with all applicable federal, state and local governmental laws,
rules, regulations and ordinances, and all applicable laws, rules, regulations
and ordinances of the PRC or any other jurisdiction, as applicable, except
for
such noncompliance that, individually or in the aggregate, would not cause
an
ANST/NST Material Adverse Effect. Each of ANST and NST has all franchises,
permits, licenses, consents and other governmental or regulatory authorizations
and approvals necessary for the conduct of its business as now being conducted
by it unless the failure to possess such franchises, permits, licenses, consents
and other governmental or regulatory authorizations and approvals, individually
or in the aggregate, could not reasonably be expected to have an ANST/NST
Material Adverse Effect.
Section
2.15
Approval of
Agreement. The directors of ANST have authorized the execution
and delivery of this Agreement and have approved the Transactions. No
other consent or approval is required for ANST to execute, deliver and perform
this Agreement.
Section
2.16
Indebtedness. The
ANST Financial Statements will set forth as of the dates and periods indicated
all outstanding secured and unsecured Indebtedness of ANST or NST, as
applicable, or for which ANST or NST, as applicable, has
commitments. For the purposes of this Section 2.16, “Indebtedness”
shall mean (a) any liabilities for borrowed money or amounts owed in excess
of
$5,000 (other than trade accounts payable incurred in the ordinary course of
business), (b) all guaranties, endorsements and other contingent obligations
in
respect of Indebtedness of others, whether or not the same are or should be
reflected in ANST’s or NST’s balance sheet (or the notes thereto), except
guaranties by endorsement of negotiable instruments for deposit or collection
or
similar transactions in the ordinary course of business; and (c) the present
value of any lease payments in excess of $5,000 due under leases required to
be
capitalized in accordance with GAAP. Except as set forth on Schedule 2.16,
neither ANST nor NST is in default with respect to any such
Indebtedness.
Section
2.17
Absence of Certain
Developments. Except as may be disclosed in the ANST
Disclosure Documents or Schedule 2.17, since
the date of the most recent balance sheet contained in the ANST Financial
Statements, neither ANST nor NST has:
(a)
issued any stock, bonds or other corporate securities or any rights, options
or
warrants with respect thereto;
(b)
borrowed any amount or incurred or become subject to any liabilities (absolute
or contingent) except current liabilities incurred in the ordinary course of
business which are comparable in nature and amount to the current liabilities
incurred in the ordinary course of business during the comparable portion of
its
prior fiscal year, as adjusted to reflect the current nature and volume of
ANST’s or NST’s business;
(c)
discharged or satisfied any lien or encumbrance or paid any obligation or
liability (absolute or contingent), other than current liabilities paid in
the
ordinary course of business;
(d)
declared or made any payment or distribution of cash or other property to
shareholders with respect to its stock, or purchased or redeemed, or made any
agreements so to purchase or redeem, any shares of its capital
stock;
(e)
sold, assigned or transferred any other tangible assets, or canceled any debts
or claims, except in the ordinary course of business;
(f)
sold, assigned or transferred any patent rights, trademarks, trade names,
copyrights, trade secrets or other intangible assets or intellectual property
rights, or disclosed any proprietary confidential information to any person
except to customers in the ordinary course of business;
(g)
suffered any substantial losses or waived any rights of material value, whether
or not in the ordinary course of business, or suffered the loss of any material
amount of prospective business;
(h)
made any changes in employee compensation except in the ordinary course of
business and consistent with past practices;
(i)
made capital expenditures or commitments therefor that aggregate in excess
of
$10,000;
(j)
entered into any other transaction other than in the ordinary course of
business, or entered into any other material transaction, whether or not in
the
ordinary course of business;
(k)
made charitable contributions or pledges in excess of $10,000;
(l)
suffered any material damage, destruction or casualty loss, whether or not
covered by insurance;
(m)
experienced any material problems with labor or management in connection with
the terms and conditions of their employment;
(n)
effected any two or more events of the foregoing kind which in the aggregate
would be material to ANST or NST; or
(o)
entered into an agreement, written or otherwise, to take any of the foregoing
actions.
ARTICLE
III
EXCHANGE
PROCEDURE AND OTHER
CONSIDERATION
Section
3.1
Share Exchange/Delivery
of ANST
Securities. On the Closing date, the holders of 100% of the
outstanding shares of ANST Common Stock, as set forth on Schedule 3.1 attached
hereto, consisting of 30,000 shares of ANST Common Stock, shall deliver to
COHQ
certificates or other documents evidencing all of the issued and outstanding
shares of ANST Common Stock, duly endorsed in blank or with executed stock
power
attached thereto in transferable form. On the Closing date, all
previously issued and outstanding shares of ANST Common Stock shall be
transferred to COHQ, so that ANST shall become a wholly-owned subsidiary of
COHQ.
Section 3.2 Issuance of COHQ
Shares. In exchange for 100% of the outstanding shares of ANST
Common Stock tendered pursuant to Section 3.1, COHQ shall at the Closing issue
to the ANST Shareholders set forth on Schedule 3.1 attached
hereto a total of 25,181,450 authorized but unissued shares of New COHQ Common
Stock, which shall constitute an aggregate of approximately 97% of the voting
power of COHQ. Such shares are restricted in accordance with Rule 144
of the 1933 Securities Act.
Section
3.3
Buyer’s Purchase of COHQ
Shares
from the Sellers. In consideration of the sum of $280,000, the
Buyer shall purchase from the Sellers at the Closing an aggregate of 558,520
shares of New COHQ Common Stock, which shall represent all of the New COHQ
Common Stock owned by the Sellers on the date of this Agreement and on the
Closing date.
Section
3.4
Sale of the Shares
of COHQ Sub
to the Sellers. Prior to the
Closing,
COHQ and the Sellers will enter into an Option Agreement (the “Option
Agreement”), reasonably acceptable to both parties, pursuant to which,
among other things, the Sellers will have the option (the “Option”)
during the three-month period immediately following the Closing (the “Option
Period”), to purchase from COHQ at a closing (the “Subsidiary
Closing”) all of the issued and outstanding shares of COHQ Sub (the
“COHQ
Sub
Shares”) in consideration (the “COHQ
Sub
Consideration”) of the assumption by COHQ Sub and the Sellers of all
liabilities of COHQ at the date of the Subsidiary Closing other than such
liabilities, if any, as are to be set forth on a Retained Liabilities Schedule
to the Option Agreement plus any liabilities incurred by ANST and NST subsequent
to the Closing of the Transactions. The Option Agreement shall be
attached as an Exhibit to this Agreement, and executed and delivered by the
applicable parties at, and as a condition to, the Closing. If the
Sellers shall fail to exercise the Option during the Option Period, COHQ shall
have the right to put the COHQ Sub Shares to the Sellers on the last day of
the
Option Period, in which event the Sellers shall purchase the COHQ Sub Shares
on
that date for the COHQ Sub Consideration.
Section
3.5
Events Prior to
Closing. Upon execution hereof or as soon thereafter as
practical, management of COHQ and ANST shall execute, acknowledge and deliver
(or shall cause to be executed, acknowledged and delivered) any and all
certificates, opinions, financial statements, schedules, agreements, resolutions
rulings or other instruments required by this Agreement to be so delivered,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the
Transactions, subject only to the conditions to Closing referenced
below.
Section
3.6
Closing. The
closing ("Closing")
of the Transactions shall be on a date mutually agreed between the Buyer and
the
Sellers, which shall be on or prior to May 31, 2007, unless extended by mutual
agreement of the Parties, and within five days of the later to occur of the
delivery of the COHQ Financial Statement to the Buyer or the delivery of the
ANST Financial Statements to the Sellers.
Section
3.7
Termination.
(a) This
Agreement may be terminated by the board of directors or majority of
shareholders of either COHQ or ANST, respectively, at any time prior to the
Closing date if:
|
(i)
|
there
shall be any action or proceeding before any court or any governmental
body which shall seek to restrain, prohibit or invalidate the Transactions
and which, in the judgment of such board of directors, made in good
faith
and based on the advice of its legal counsel, makes it inadvisable
to
proceed with the exchange contemplated by this Agreement;
or
|
|
(ii)
|
any
of the Transactions are disapproved by any regulatory authority whose
approval is required to consummate such
Transactions.
|
In
the
event of termination pursuant to this Paragraph (a), no obligation, right,
or
liability shall arise hereunder and each party shall bear all of the expenses
incurred by it in connection with the negotiation, drafting and execution of
this Agreement and the Transactions.
(b) This
Agreement may be terminated at any time prior to the Closing date by action
of
the board of directors of COHQ if ANST shall fail to comply in any material
respect with any of its covenants or agreements contained in this Agreement
or
if any of the representations or warranties of ANST contained herein shall
be
inaccurate in any material respect, which noncompliance or inaccuracy is not
cured after 20 days written notice thereof is given to ANST. If this
Agreement is terminated pursuant to this Paragraph (b), this Agreement shall
be
of no further force or effect and no obligation, right or liability shall arise
hereunder.
(c) This
Agreement may be terminated at any time prior to the Closing date by action
of
the board of directors of ANST if COHQ shall fail to comply in any material
respect with any of its covenants or agreements contained in this Agreement
or
if any of the representations or warranties of COHQ contained herein shall
be
inaccurate in any material respect, which noncompliance or inaccuracy is not
cured after 20 days written notice thereof is given to COHQ. If this
Agreement is terminated pursuant to this Paragraph (c), this Agreement shall
be
of no further force or effect and no obligation, right or liability shall arise
hereunder.
Section
3.8
Directors of COHQ
After
Acquisition. Upon the Closing, Crane, Davis and Art X.
Xxxxxx shall each
resign from the Board of Directors of COHQ and Xx. Xxxxx X. Xxxxx, Xx. Xxxx
Xxxx, Mr. Pu Fachun and Xx. Xxxxx Changlong shall be appointed to the Board
of
Directors of COHQ. Each director shall hold office until his
successor has been duly elected and has qualified or until his death,
resignation or removal.
Section
3.9
Officers of COHQ.
Upon the Closing, the
following people shall be appointed as officers of COHQ:
|
Name
|
Office
|
|
|
Mr.
Pu Fachun
|
Chairman,
President and Treasurer
|
|
|
Xx.
Xxxxx X. Xxxxx
|
Secretary
|
Section
3.10
Officers and Directors
of COHQ
Sub. Until COHQ Sub shall be sold to the Sellers, the
current officers and directors of COHQ, or their designees, shall be the
officers and directors of COHQ Sub.
ARTICLE
IV
SPECIAL
COVENANTS
Section
4.1
Access to Properties
and
Records. Prior to Closing, COHQ and ANST will each afford to
the officers and authorized representatives of the other full access to the
properties, books and records of each other, so that each may have full
opportunity to make such reasonable investigation as it shall desire to make
of
the affairs of the other and each will furnish the other with such additional
financial and operating data and other information as to the business and
properties of each other, as the other shall from time to time reasonably
request.
Section
4.2
Availability of Rule
144. COHQ and ANST Shareholders holding "restricted
securities", as that term is defined in Rule 144 promulgated under the
Securities Act will remain as “restricted securities”. COHQ is under
no obligation to register such shares under the Securities Act, or otherwise.
The shareholders of COHQ and ANST holding restricted securities of COHQ and
ANST
as of the date of this Agreement and their respective heirs, administrators,
personal representatives, successors and assigns, are intended third party
beneficiaries of the provisions set forth herein. The covenants set
forth in this Section 4.2 shall survive the Closing and the consummation of
the
Transactions.
Section
4.3
Special Covenants
and
Representations Regarding the Shares to be Issued and Delivered in the
Exchange. The consummation of this Agreement, including: (i)
the issuance of the 25,181,450 shares of New COHQ Common Stock to the
Shareholders of ANST as contemplated hereby, (ii) the delivery of the 30,000
shares of ANST Common Stock to COHQ, and (iii) the sale of the 558,520 shares
of
New COHQ Common Stock by the Sellers to the Buyer, constitute the offer and
sale
of securities under the Securities Act, and applicable state
statutes. Such Transactions shall be consummated in reliance on
exemptions from the registration and prospectus delivery requirements of such
statutes which depend, inter
alia, upon the circumstances under which the ANST Shareholders, COHQ and
the Buyer, respectively, acquire such securities.
Section
4.4
Third Party
Consents. COHQ, ANST and NST agree to cooperate with each
other in order to obtain any required third party consents to this Agreement
and
the Transactions.
Section
4.5
Actions Prior to and Subsequent to Closing.
(a) From
and
after the date of this Agreement until the Closing date, except as permitted
or
contemplated by this Agreement, COHQ, ANST and NST will each use its best
efforts to:
|
(i)
|
maintain
and keep its properties in states of good repair and condition as
at
present, except for depreciation due to ordinary wear and tear and
damage
due to casualty;
|
|
(ii)
|
maintain
in full force and effect insurance comparable in amount and in scope
of
coverage to that now maintained by it;
and
|
|
(iii)
|
perform
in all material respects all of its obligations under material contracts,
leases and instruments relating to or affecting its assets, properties
and
business.
|
(b) From
and
after the date of this Agreement until the Closing date, COHQ will not, without
the prior consent of ANST:
|
(i)
|
except
as otherwise specifically set forth herein, make any change in its
certificate of incorporation or
bylaws;
|
|
(ii)
|
declare
or pay any dividend on its outstanding common shares, except as may
otherwise be required by law, or effect any stock split or otherwise
change its capitalization, except as provided
herein;
|
|
(iii)
|
enter
into or amend any employment, severance or agreements or arrangements
with
any directors or officers;
|
|
(iv)
|
grant,
confer or award any options, warrants, conversion rights or other
rights
not existing on the date hereof to acquire any common
shares;
|
|
(v)
|
issue
any shares of capital stock for any purpose other than as provided
herein;
or
|
|
(vi)
|
purchase
or redeem any common shares.
|
Section
4.6
Indemnification.
(a) The
Sellers hereby agree, jointly and severally, to indemnify each member of the
ANST Group, each of their respective officers, agents and directors and current
shareholders of ANST as of the Closing date against any loss, liability, claim,
damage or expense (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened or any claim whatsoever), to which it or
they may become subject to or rising out of or based on any inaccuracy appearing
in or misrepresentation made in this Agreement. The indemnification
provided for in this Paragraph (a) shall survive the Closing and consummation
of
the Transactions; and
(b) The
ANST
Group hereby agree, jointly and severally, to indemnify COHQ, each of the
officers, agents, directors and current shareholders of COHQ as of the Closing
date, including the Sellers, against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened or any claim whatsoever), to which it or
they may become subject arising out of or based on any inaccuracy appearing
in
or misrepresentation made in this Agreement. The indemnification provided for
in
this paragraph shall survive the Closing and consummation of the Transactions
and termination of this Agreement.
ARTICLE
V
CONDITIONS
PRECEDENT TO OBLIGATIONS OF
COHQ
The
obligations of COHQ under this
Agreement are subject to the satisfaction, at or before the Closing date, of
the
following conditions:
Section
5.1
Accuracy of
Representations. The representations and warranties made by
ANST in this Agreement were true when made and shall be true at the Closing
date
with the same force and effect as if such representations and warranties were
made at the Closing date (except for changes therein permitted by this
Agreement), and ANST shall have performed or compiled with all covenants and
conditions required by this Agreement to be performed or complied with by ANST
prior to or at the Closing. COHQ shall be furnished with a
certificate, signed by a duly authorized officer of ANST and dated the Closing
date, to the foregoing effect.
Section
5.2
Directors Approval;
ANST
Shareholders Approval. The Board of Directors of ANST and the ANST
Shareholders shall have approved this Agreement and the
Transactions.
Section
5.3
Officer’s
Certificate.
COHQ shall have been furnished with a certificate dated the Closing
date and
signed by the chief executive officer of ANST to the effect that, to the best
of
his personal knowledge and information: (a) the representations and warranties
of ANST set forth in the Agreement and in all Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Closing date; (b) ANST has performed all covenants, satisfied
all conditions, and complied with al other terms and provisions of this
Agreement to be performed, satisfied or complied with by it as of the Closing
date; (c) since such date and other than as previously disclosed to ANST on
the
attached Schedules, ANST has not entered into any material transaction other
than transactions which are usual and in the ordinary course if its business;
and (d) no litigation, proceeding, investigation or inquiry is pending or,
to
the best knowledge of ANST, threatened, which might result in an action to
enjoin or prevent the consummation of the Transactions or, to the extent not
disclosed in the ANST Schedules, by or against ANST which might result in an
ANST Material Adverse Effect.
Section
5.4
No Material Adverse
Change. Prior to the Closing date, there shall not have
occurred any material adverse change in the assets, financial condition,
operating results, customer and employee relations or business prospects of
ANST
or NST, or the financial statements theretofore supplied by ANST, nor shall
any
event have occurred which, with the lapse of time or the giving of notice,
may
cause or create any ANST Material Adverse Effect.
Section
5.5
ANST Financial
Statements. At least one week prior to the Closing date,
ANST shall have delivered to COHQ the ANST Financial Statements, with a report
of ANST’s independent registered public accountant, and other information which
would be required for inclusion in a Current Report on Form 8-K that would
be
filed within 4 business days after the Closing date if COHQ were a reporting
company required to file periodic reports pursuant to the Securities Exchange
Act of 1934.
Section
5.6
Execution and Delivery
of the
Option Agreement. The Option Agreement shall have been
executed and delivered by the applicable parties, with the approval of all
parties hereto, and immediately subsequent to the Closing, shall be a valid
and
binding obligation of COHQ to cause the Subsidiary Transaction and the transfer
the assets and liabilities called for therein to the COHQ Sub, contingent only
upon the receipt of written notice of their exercise of the Option in accordance
with the terms of the Option Agreement or the exercise by COHQ of its option
to
cause the Sellers to consummate the Subsidiary Transaction.
Section
5.7
Other
Items.
COHQ shall have received such further documents, certificates or instruments
relating to the Transactions as COHQ may reasonably request.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF ANST
The
obligations of the ANST Group under
this Agreement are subject to the satisfaction, at or before the Closing date
(unless otherwise indicated herein), of the following conditions:
Section
6.1
Accuracy of
Representations. The representations and warranties made by
the Sellers in this Agreement were true when made and shall be true as of the
Closing date (except for changes therein permitted by this Agreement) with
the
same force and effect as if such representations and warranties were made at
and
as of the Closing date, and the Sellers shall have performed and complied and
caused COHQ to perform and comply with all covenants and conditions required
by
this Agreement to be performed or complied with by the Sellers or COHQ prior
to
or at the Closing. ANST shall have been furnished with a certificate,
signed by the Sellers and a duly authorized executive officer of COHQ and dated
the Closing date, to the foregoing effect.
Section
6.2
Directors
Approval. The Board of Directors of COHQ shall have approved
this Agreement and the Transactions.
Section
6.3
Sellers’
Certificate.
ANST shall
be furnished with a certificate dated the Closing date and signed by
the Sellers to the effect that, to the best of their personal knowledge and
information: (a) the representations and warranties of the Sellers set forth
in
the Agreement and in all Exhibits, Schedules and other documents furnished
in
connection herewith are in all material respects true and correct as if made
on
the Closing date; and (b) the Sellers and COHQ have performed all of their
respective covenants, satisfied all conditions, and complied with all other
terms and provisions of the Agreement to be performed, satisfied or complied
with by them as of the Closing date.
Section
6.4
No Material Adverse
Change. Prior to the Closing date, there shall not have
occurred any material adverse change in the assets, financial condition,
operating results, customer and employee relations or business prospects of
COHQ, or the financial statements theretofore supplied by COHQ, nor shall any
event have occurred which, with the lapse of time or the giving of notice,
may
cause or create any Material Adverse Effect upon COHQ.
Section
6.5
Articles of Incorporation
Amendment and Reverse Stock Split. Prior to the Closing date,
COHQ and its directors and shareholders shall take all actions necessary to
amend the Articles of Incorporation of COHQ to reduce the authorized capital
stock from two billion shares of Old COHQ Common Stock to two hundred million
shares of New COHQ Common Stock and to effect the automatic conversion of each
1,704 shares of Old COHQ Common Stock into one share of New COHQ Common
Stock.
Section
6.6
Cancellation of Outstanding
Options, Warrants, Rights, Etc. Prior to the Closing date,
COHQ shall cancel all outstanding stock options, rights or commitments to issue
shares of Old COHQ Common Stock or New COHQ Common Stock, warrants and
convertible notes.
Section
6.7
Cancellation of Voting
Trusts
and Shareholders Agreements. Prior to the Closing date, COHQ
and the other parties thereto shall cancel all voting trusts, agreements or
arrangements among any of the beneficial holders of Old COHQ Common Stock
affecting the nomination or election of directors or the exercise of the voting
rights of Old COHQ Common Stock.
Section
6.8
Ownership of Pre-Closing
New
COHQ Common Stock. On and as of the Closing date, the Sellers
shall own in the aggregate not less than 68% of the shares of New COHQ Common
Stock outstanding on the Closing date.
Section
6.9
Pink Sheet
Trading. On and as of the Closing date, the shares of
COHQ Common Stock shall be listed for quotation on the Pink Sheets.
Section
6.10
Outstanding COHQ
Securities. On and as of the Closing date, the
only issued and outstanding securities of COHQ shall be 625,422 shares of New
COHQ Common Stock, and there shall then be no options, warrants or rights issued
and outstanding that entitle the holders thereof to acquire any capital stock
of
COHQ, whether for additional consideration or upon conversion.
Section
6.11
Other
Items.
ANST and the ANST Shareholders shall have received such further documents,
certificates or instruments relating to the Transactions as ANST may reasonably
request.
ARTICLE
VII
MISCELLANEOUS
Section
7.1
Brokers and
Finders. The Sellers represent and warrant that the Sellers
are obligated to pay a finder’s fee to Greenwich Financial Group in connection
with the Transactions. Each party hereby represents and warrants that
other than Greenwich Financial Group there has been no other finder, broker
or
other person involved in creating the Transactions, or any of them, and to
which
any fee or other compensation is owed. The parties each agree to
indemnify the other against any claim by any third person for any commission,
brokerage or finder’s fee (other than the finder’s fee payable by the Sellers to
Greenwich Financial Group described in the preceding sentence) or other payment
with respect to this Agreement or the Transactions based on any alleged
agreement or understanding between the indemnifying party and such third person,
whether express or implied from the actions of the indemnifying
party.
Section
7.2
Law, Forum and
Jurisdiction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware, United States
of America.
Section 7.3 Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if personally delivered to it or sent by registered mail or certified mail, postage prepaid, or by prepaid telegram addressed as follows:
|
Sellers
and
COHQ:
|
CorpHQ,
Inc.
0000
Xxxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx
Xxxxx, XX 00000
Attn: Mr.
Xxxxx Xxxxx
Telephone:
(000) 000-0000
Fax: (310)
540--7562
Email:
xxxxx@xxxxxx.xxx
|
With
a copy (which shall not constitute notice) to:
|
Xxxxxxx
X. August, Esq.
August
Law Group, P.C.
00000
Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxx,
XX 00000
Telephone:
(000) 000-0000, X180
Fax:
(000) 000-0000
E-mail:
xxxxxxx@xxxxxxxxxxxxxx.xxx
|
|
ANST
and NST:
|
American
Nano Silicon Technology, Inc.
c/o
Xxxxxxx Xxxx
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
E-mail:xxxxx@xxxxxxxxxx.xxx
|
With
a copy (which shall not constitute notice) to:
|
Xxxxx
X. Xxxxxxxxxx, Esq.
Xxxxxxxxxx
Law
0000
Xxxx Xxxxxx, Xxxxx 0X
Xxx
Xxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
E-mail:xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
|
|
To
an ANST Share-holder:
|
The
addresses set forth on the applicable signature page of this
Agreement.
|
||
or
such
other addresses as shall be furnished in writing by any party in the manner
for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
telegraphed.
Section
7.4
Attorneys’
Fees. In the event
that any party institutes any action or
suit to enforce this Agreement or to secure relief from any default hereunder
or
breach hereof, the breaching party or parties shall reimburse the non-breaching
party or parties for all costs, including reasonable attorneys’ fees, incurred
in connection therewith and in enforcing or collecting any judgment rendered
therein.
Section
7.5
Confidentiality. Each
party hereto agrees with the other party that, unless and until the Transactions
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party
or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public
knowledge or is required by law to be published; and (ii) to the
extent that such data or information must be used or disclosed in order to
consummate the Transactions.
Section
7.6
Schedules;
Knowledge. Each party
is presumed
to have full knowledge of all information set forth in the other party’s
schedules delivered pursuant to this Agreement. Wherever used in this
Agreement, the term “knowledge” means the actual knowledge of a person after
making a reasonable review of all files and records in such person’s possession
or within such person’s control relevant to the matter as to which such person
is deemed to have knowledge.
Section
7.7
Third Party
Beneficiaries.
This contract is solely among COHQ, ANST, the Buyer and the Sellers
and except
as specifically provided herein, no director, officer, shareholder, subsidiary,
agent, independent contractor or any other person or entity shall be deemed
to
be a third party beneficiary of this Agreement.
Section
7.8
Entire Agreement. This
Agreement
represents the entire agreement among the parties relating to the subject matter
hereof and supersedes the Letter of Intent dated April 24, 2007 between the
Sellers and ANST. This Agreement alone fully and completely expresses
the agreement of the parties relating to the subject matter hereof and the
Transactions. There are no other courses of dealing, understanding,
agreements, representations or warranties, written or oral, except as set forth
herein. This Agreement may not be amended or modified, except by a
written agreement signed by all parties hereto.
Section
7.9
Survival;
Termination. The representations, warranties and covenants of
the respective parties shall survive the Closing date and the consummation
of
the Transactions for 18 months.
Section
7.10
Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall be but a single
instrument. This Agreement may be executed and transmitted to the
other parties by facsimile or as a scanned document attached to an
E-mail. Any counterpart so received shall be legal and valid
for all purposes and shall be entitled to be treated as a manually signed
counterpart of this Agreement.
Section
7.11
Amendment or
Waiver. Every right
and remedy
provided herein shall be cumulative with every other right and remedy, whether
conferred herein, at law or in equity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any obligation by
the
other shall be construed as a waiver of the same or any other default then,
theretofore, or thereafter occurring or existing. At any time prior
to the Closing date, this Agreement may be amended by a written consent by
all
parties hereto, with respect to any of the terms contained herein (except with
respect to any obligations or liabilities of the ANST Shareholders, which may
be
amended by a written consent of all the parties to this Agreement), and any
term
or condition of this Agreement may be waived or the time for performance hereof
may be extended by a written consent by the party or parties for whose benefit
the provision is intended.
Section
7.12
Expenses. Prior
to the Closing,
the Sellers shall bear all expenses of themselves and COHQ and ANST shall bear
all expenses of the ANST Group, except as otherwise agreed between the
parties.
Section
7.13
Headings;
Context. The headings of the sections and paragraphs contained
in this Agreement are for convenience of reference only and do not form a part
hereof and in no way modify, interpret or construe the meaning of this
Agreement.
Section
7.14
Benefit. This
Agreement shall be binding upon and shall inure only to the benefit of the
parties hereto, and their permitted assigns hereunder. This Agreement
shall not be assigned by any party without the prior written consent of each
other party.
Section
7.15
Public
Announcements. Except as may be required by law, no party
shall make any public announcement or filing with respect to the Transactions
without the prior consent of the other party hereto.
Section
7.16
Severability. In
the event that any particular provision or provisions of this Agreement or
the
other agreements contained herein shall for any reason hereafter be determined
to be unenforceable, or in violation of any law, governmental order or
regulation, such unenforceability or violation shall not affect the remaining
provisions of such agreements, which shall continue in full force and effect
and
be binding upon the respective parties hereto.
Section
7.17
Failure of Conditions;
Termination. In the event that any of the conditions specified
in this Agreement shall not be fulfilled on or before the Closing date, each
of
the parties shall have the right either to proceed or, upon prompt written
notice to the other, to terminate and rescind this Agreement. In such
event, the party that has failed to fulfill the conditions specified in this
Agreement will be liable for the other party’s legal fees, as limited by Section
7.21 and Section 7.22. The election to proceed shall not affect the
right of such electing party reasonably to require the other party to continue
to use its efforts to fulfill the unmet conditions.
Section
7.18
Construction; Interpretation.
(a)
The language of this Agreement shall be construed as a whole, according to
its
fair meaning and intendment, and not strictly for or against any party hereto,
regardless of who drafted or was principally responsible for drafting the
Agreement or terms or conditions hereof.
(b)
In interpreting this Agreement, (i) the use of the word “including” shall, in
all cases unless expressly stated otherwise, be deemed to be followed by the
phrase “without limitation”; (ii) the reference to any Schedule or Exhibit
herein, whether or not so stated, shall be deemed to read “attached hereto, as
the same may be supplemented or updated by the relevant party or parties up
to
and including the Closing date; and (iii) the use of the phrases “Closing date”
or “date of the Closing” shall be deemed to mean “the date on which the
Transactions referenced herein are consummated, as the same may be extended
by
the parties in accordance with the provisions of this Agreement and, in the
event that the Closing shall be completed in multiple phases, then the date
on
which the last to of such phases is completed.”
Section
7.19
Execution Knowing
and
Voluntary. In executing this Agreement, the parties severally
acknowledge and represent that each: (a) has fully and carefully read
and considered this Agreement; (b) has been or has had the opportunity to be
fully apprized by its attorneys of the legal effect and meaning of this document
and all terms and conditions hereof; (c) is executing this Agreement
voluntarily, free from any influence, coercion or duress of any
kind.
Section 7.20
Amendment. At any time
after the
Closing date, this Agreement may be amended by a writing signed by all parties,
with respect to any of the terms contained herein, and any term or condition
of
this Agreement may be waived or the time for performance hereof may be extended
by a writing signed by the party or parties for whose benefit the provision
is
intended.
Section
7.21
Lock-Up and
Damages. The Sellers agree not to enter into any agreement,
discussion, negotiation with, or provide information to any other party for
the
purpose of any business transaction, merger, share exchange or business
combination and have agreed to pay damages of $50,000 to ANST in the event
the
Transactions fail to close as a result of the Sellers’ or COHQ’s material breach
of this Agreement. No damages will be paid by the Sellers or COHQ if the failure
to close the Transactions results from ANST’s or the Buyer’s failure to perform
or if applicable law or regulatory authorities prevent the closing of the
Transaction. This lock up and damages provision will be effective
until June 30, 2007, and may be extended with the written approval of all
parties.
Section
7.22
Damages for ANST’s or the
Buyer’s Breach. ANST agrees to pay damages to the Sellers in
the event the Transactions fail to close as a result of the ANST Group’s
material breach of this Agreement. No damages will be paid by the ANST if the
failure to close the Transactions results from COHQ’s or the Sellers’ failure to
perform or if applicable law or regulatory authorities prevent the closing
of
the Transaction. This lock up and damages provision will be effective
until June 30, 2007, and may be extended with the written approval of all
parties.
IN
WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their respective
duly authorized officers or representatives and entered into as of the date
first above written.
|
Contact
Information
|
CORP
HQ, INC.
|
|
|
See
Section 7.3
|
By:
|
/s/
Xxxxxx
Xxxxx
|
|
Name:
|
Xxxxxx
Xxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
AMERICAN
NANO SILICON TECHNOLOGY, INC.
|
||
|
See
Section 7.3
|
By:
|
/s/
Pu
Fachun
|
|
Name:
|
Pu
Fachun
|
|
|
Title:
|
President
|
|
|
NANCHONG
CHUNFEI NANO-SILICON
TECHNOLOGIES
CO. LTD.
|
||
|
See
Section 7.3
|
By:
|
/s/
Pu
Fachun
|
|
Name:
|
Pu
Fachun
|
|
|
Title:
|
Chief
Executive Officer
|
|
ANST
SHAREHOLDERS:
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
PU
FACHUN
|
|
|
By: /s/
Pu
Fachun
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
WARNER
TECHNOLOGY & INVESTMENT CORP.
|
|
|
By:
/s/ Xxxxxxx
Xxxx
|
|
|
|
Name:
XXXXXXX XXXX
|
|
|
|
Title:
President
|
|
|
|
000
Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
E-mail:
|
AMERICAN
UNION SECURITIES, INC.
|
|
|
By:
/s/ Xxxxx X.
Xxxx
|
|
|
|
Name:
XXXXX X. XXXX
|
|
|
|
Title:
President
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXXXXXX
XXXX
|
|
|
By:
/s/ Xxxxxxx
Xxxx
|
|
|
|
|
||
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXXXXX XX | |
|
|
|
|
| By: /s/ Xxxxxx Xx | ||
|
|
||
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXXXXXX XXXX | |
|
|
|
|
| By: /s/ Xxxxxxx Xxxx | ||
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXXX
XXXX
|
|
|
By:
/s/ Xxxx Xxxx
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXXXX
XXXXX
|
|
|
By:
/s/
Xxxxx Xxxxx
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XX
XXX
|
|
|
By:
/s/
Xx Xxx
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
REN
QI
|
|
|
By: /s/
Ren Qi
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
LIANG
MANCHU
|
|
|
By:
/s/ Liang
Manchu
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXX
XXXXXX
|
|
|
By:
/s/ Xxx
Xxxxxx
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
ZHANG
LI
|
|
|
By: /s/
Zhang
Li
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXXX
XXXXXX
|
|
|
By: /s/
Xxxx
Xxxxxx
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
LIU
XINGBANG
|
|
|
By:
/s/ Liu
Xingbang
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
YANG
KAIRUN
|
|
|
By: /s/
Yang
Kairun
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
XXXXX
XXXXXX
|
|
|
By:
/s/ Xxxxx
Xxxxxx
|
|
|
|
00
Xxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxx.xxx
|
YANG
JIAXIU
|
|
|
By:
/s/ Yang
Jiaxiu
|
|
|
|
Greenwich
Financial Group
00
Xxxxx Xxxx Xxxxx 0
Xxxxxxxx,
Xxxxxxxxxxx 00000
Telephone:
000-000-0000
Fax:
(000) 000-0000
Email:
XXXXxxx@xxx.xxx
|
XXXXXXXX
XXXXXX
|
|
|
By:
/s/ Xxxxxxxx
Xxxxxx
|
|
|
