EXHIBIT 2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (together with all schedules, exhibits and all
ancillary agreements contemplated herein, hereinafter referred to as this
"Agreement"), is entered into as of September 8, 2004 by and between American
Oriental Bioengineering, Inc., a Nevada corporation ("AOBO" or the "Company"),
and the Government of Heilongjiang Province of China ("Owner") and Heilongjiang
Songhuajiang Pharmaceutical Limited, a limited liability corporation organized
and existing in China ("HSPL"). Hereinafter, AOBO HSPL and the Owner are each
referred to individually as a "Party" and collectively as "Parties".
RECITALS
A. AOBO considers the acquisition of HSPL to be of great importance to
AOBO's expansion, and thus in the best interests of AOBO and its shareholders.
B. HSPL maintains title to certain assets, including, but not limited
to: (i) plant buildings, (ii) manufacturing equipment, (iii) land and land use
rights, (iv) the right to produce products arising from the operation of HSPL,
(v) the ownership rights to any intellectual property and patent owned by HSPL
as well as those arising from the operations of HSPL, and (vi) all raw material,
manufacturing in process, finished goods, customer list and sales and
distribution contracts before the closing of the transaction stipulated in this
Agreement.
C. AOBO desires to purchase 100% ownership interest of HSPL from the
Owner with the terms and conditions stipulated in this 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, it is hereby agreed as follows.
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF OWNER AND HSPL
As an inducement to, and to obtain the reliance of AOBO, Owner and HSPL
each represents and warrants as follows:
Section 1.01--OWNERSHIP OF HSPL. Owner is the sole legal and beneficial
owner of HSPL free and clear of any claims, charges, equities, liens, security
interests, or encumbrances whatsoever.
Section 1.02--VALID TRANSFER OF FULLY VESTED SHARES. Owner has full
right, power, and authority to transfer, assign, convey, and deliver its
ownership interest of HSPL. The delivery by Owner of the ownership interest of
HSPL with all of its assets (the "Company Assets") and liabilities at the
Closing (as described in Section 3.03 herein) will convey to AOBO good and
marketable title to HSPL and the Company Assets, free and clear of any claims,
charges, equities, liens, security interests, or encumbrances whatsoever.
Section 1.03--APPROVALS OF OWNER AND HSPL. Each of Owner and HSPL has
taken, or will have taken prior to Closing (as described in Section 3.03
herein), all actions required by law, or otherwise to authorize the execution
and delivery of this Agreement. Each of Owner and HSPL has or will have prior to
Closing (as described in Section 3.03 herein), the full power, authority, and
legal right, and has or will have prior to Closing (as described in Section 3.03
herein), taken all action required by law to consummate the transactions herein
contemplated.
Section 1.04--ENFORCEABLE OBLIGATION. The transactions contemplated by
this Agreement are the valid and binding obligations of Owner and HSPL,
enforceable against Owner and HSPL, by AOBO in accordance with the terms of this
Agreement.
Section 1.05--NO CONFLICTS. The execution and delivery by Owner and
HSPL of this Agreement, the performance by Owner and HSPL of their respective
obligations under this Agreement and the consummation of the transactions
contemplated hereby and thereby do not and will not: (i) conflict with or result
in a violation or breach of, (ii) constitute (with or without notice or lapse of
time or both) a default under, (iii) require Owner or HSPL to obtain any
consent, approval or action of, make any filing with or give any notice to any
person as a result or under the terms of, (iv) result in or give to any person
any right of termination, cancellation, acceleration or modification in or with
respect to, (v) result in or give to any person any additional rights or
entitlement to increased, additional, accelerated or guaranteed payments under,
or (vi) result in the creation or imposition of any lien upon Owner or HSPL or
any of their respective assets and properties under, any contract to which Owner
or HSPL is a party or by which any of the Company Assets is bound.
Section 1.06--GOVERNMENTAL AUTHORIZATIONS AND LICENSES. Each of Owner
and HSPL has, or will have upon Closing (as described in Section 3.03 herein),
all licenses, franchises, permits, and other governmental authorizations that
are legally required to enable it to conduct its business in all material
respects as conducted. 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 Owner and HSPL of
this Agreement and consummation by Owner and HSPL of the transactions
contemplated hereby.
Section 1.07--BINDING OBLIGATION. When executed by Owner and HSPL, this
Agreement, and all exhibits hereto and the representations and warranties
contained herein and therein will constitute a valid and binding obligation of
Owner and HSPL, jointly and severally, enforceable in accordance with its
respective terms.
Section 1.08--OPTIONS OR WARRANTS OR SUBSCRIPTIONS. There are no
existing options, warrants, calls, subscriptions or commitments of any character
relating to any equity securities of Owner or HSPL.
Section 1.09--COMPLIANCE WITH LAWS AND REGULATIONS. Owner and HSPL each
has complied with all applicable statutes and regulations in the relevant
jurisdiction except to the extent that noncompliance would not (i) materially
and adversely affect the business, operations, properties, assets, or condition
of Owner or HSPL or (ii) result in the occurrence of any material liability for
Owner or HSPL.
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Section 1.10--LITIGATION. There are no claims, actions, suits,
proceedings or investigations pending or threatened or reasonably anticipated
against or affecting Owner or HSPL or any assets or business of either Owner or
HSPL or this Agreement or any exhibit hereto, at law or in equity, by or before
any court, arbitrator or governmental authority, domestic or foreign.
Section 1.11--NO BANKRUPTCY. There has not been filed any petition or
application, nor any proceeding commenced by or against Owner or HSPL with
respect to any assets of Owner or HSPL under any law, domestic or foreign,
relating to bankruptcy, reorganization, fraudulent transfer, compromise,
arrangements, insolvency, readjustment of debt or creditors' rights, and no
assignment has been made by Owner or HSPL for the benefit of creditors
generally.
Section 1.12--NO OPTION PLAN. There is no share option plan or similar
plan to acquire any additional shares or units or other equity interests, as the
case may be, of Owner or HSPL or securities convertible or exercisable into or
exchangeable for, or which otherwise confer on the holder thereof any right to
acquire, any such additional shares or units or equity interests, as the case
may be.
Section 1.13--FINANCIAL STATEMENTS OF HSPL.
(a) Each set of financial statements (including, in each case,
any related notes thereto) contained in the unaudited financial statements of
HSPL previously provided to AOBO and incorporated herein by reference and made
an integral part hereof (the "HSPL Financial Statements"), was prepared in
accordance with China GAAP applied on a consistent basis throughout the periods
involved
(b) The HSPL Financial Statements are true, correct and
complete and accurately reflect the financial condition of HSPL as of each
period reflected therein. The HSPL Financial Statements fairly present the
financial condition of HSPL and the results of its operations and cash flows as
of the dates thereof. The HSPL Financial Statements include all adjustments
necessary to present fairly the information for such period.
(c) To the knowledge of Owner and HSPL, except as disclosed in
the HSPL Financial Statements, there has been no material change in the
financial condition, operations or business of HSPL since December 31, 2003.
(d) Except as otherwise disclosed in the HSPL Financial
Statements, HSPL does not have any material liabilities.
Section 1.14--TAX RETURNS. All required tax returns and information
returns and reports of or relating to any tax and the information and data
contained therein have been properly and accurately compiled and completed in
all material respects, and filed and paid in a timely manner with the
appropriate taxation authority for each of Owner and HSPL.
Section 1.15--GUARANTEES. Neither Owner nor HSPL has any outstanding
contracts or commitments guaranteeing (or indemnifying or making contribution to
others for breaches in connection with) the payment or collection or the
performance of the obligations of others, and none of them has entered into any
deficiency agreements, or issued any comfort letters, or otherwise granted any
material financial assistance to any person, firm, corporation or other entity.
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Section 1.16--NO NON-COMPETITION AGREEMENT. There is no restriction
agreement nor any non-solicitation or non-competition agreement or other
agreement restricting in any way the carrying on of the business of Owner or
HSPL binding upon Owner or HSPL.
Section 1.17--[RESERVED]
Section 1.18--PERSONAL PROPERTY; INTELLECTUAL PROPERTY.
(a) Each of Owner and HSPL has good and marketable title to
all of its respective assets and properties, free and clear of all encumbrances
or liens howsoever defined and such assets and properties consist of all of the
assets and properties required by each of Owner and HSPL to conduct its
respective businesses consistent with past practice. There are no material
defects, latent or patent, in the assets and properties addressed herein. The
machinery or equipment of HSPL are in proper operating condition and repair
(subject to normal wear and tear).
(b) Each of Owner and HSPL owns or has the right to use
pursuant to license, sublicense, agreement, or permission all intellectual
property used for the operation of HSPL's business as presently conducted, which
intellectual property shall for purposes of this Agreement include, but not be
limited to, all (i) patents and patent rights, trademarks and trademark rights,
trade names and trade name rights, copyrights and copyright rights, service
marks and service xxxx rights, and all pending applications for and registration
of the same; (ii) brand names, trade dress, business and product names, logos
and slogans, and (iii) proprietary technology, including all know-how, trade
secrets, quality control standards, reports (including test reports), designs,
processes, market research and other data, computer software and programs
(including source codes and related documentation), formulae, inventions and
other ideas, methodologies, and technical information, (iv) claims of the owner
of any intellectual property for infringement of its rights by a third party, no
matter when arising, and (v) other intellectual property (collectively, the
"Intellectual Property").
Each item of Intellectual Property owned or used by Owner and HSPL
immediately prior to the Closing hereunder will be owned or available for use by
Company on identical terms and conditions immediately subsequent to the Closing
hereunder. Each of Owner and HSPL has taken all necessary and desirable action
to maintain and protect each item of Intellectual Property that it owns or uses.
To the knowledge of Owner and HSPL, no third party has interfered with,
infringed upon, misappropriated, or violated in any material respect any
Intellectual Property. The Intellectual Property constitutes all the
intellectual property that is material to the conduct of the business of HSPL as
now conducted. HSPL has taken reasonable steps to protect its confidential
information and trade secrets.
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Section 1.19--NO MATERIALLY ADVERSE UNDISCLOSED FACTS. There is no fact
known to the management of Owner or HSPL which has not previously been disclosed
in writing to Company which may materially adversely affect Owner and HSPL or
any such company's respective assets, properties, business, prospects, operation
or condition (financial or otherwise), or which should be disclosed to Company
in order to make any of the warranties and representations herein true and not
misleading and no state of facts is known, to the management of Owner or HSPL,
which would operate to prevent Owner or HSPL from continuing to carry on either
of their businesses in the manner in which carried on at the date hereof.
Section 1.20--XXXXXXXX-XXXXX COMPLIANCE.
(a) HSPL and their subsidiaries maintains accurate books and
records reflecting its assets and liabilities and maintains proper and adequate
internal accounting controls which provide assurance that (i) transactions are
executed with management's authorization; (ii) transactions are recorded as
necessary to permit preparation of any requisite financial statements to
maintain accountability for its consolidated assets; (iii) access to HSPL's
assets is permitted only in accordance with management's authorization; (iv) the
reporting of HSPL 's assets is compared with existing assets at regular
intervals; and (v) accounts, notes and other receivables and inventory are
recorded accurately, and proper and adequate procedures are implemented to
effect the collection thereof on a current and timely basis.
(b) Neither Owner nor HSPL has, since September 30, 2001,
extended or maintained credit, arranged for the extension of credit, or renewed
an extension of credit, in the form of a personal loan to or for any director or
executive officer (or equivalent thereof) of either Owner, HSPL or any
subsidiary thereof.
(c) On or before Closing, each of Owner and HSPL and each of
its directors and its senior financial officers shall have consulted with
Owner's and HSPL's independent counsel, as appropriate, with respect to, and (to
the extent applicable to Owner or HSPL, as the case may be) is familiar in all
material respects with all of the requirements of the Xxxxxxxx-Xxxxx Act of
2002. Each of Owner and HSPL is in compliance with the provisions of the
Xxxxxxxx-Xxxxx Act of 2002 applicable to it as of the date hereof and has
implemented such programs and has taken reasonable steps, upon the advice of
Owner's and HSPL's independent counsel, respectively, to ensure Owner's and
HSPL's future compliance (not later than the relevant statutory and regulatory
deadlines therefor) with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 which
shall become applicable to Owner and HSPL after the Closing Date hereof.
(d) On or before Closing, HSPL shall maintain disclosure
controls and procedures required by Rule 13a-15 or 15d-15 under the Exchange
Act; such controls and procedures shall be effective to ensure that all material
information concerning Owner, HSPL and its subsidiaries is made known on a
timely basis to management of Owner and HSPL. Such disclosure controls will
remain in effect on the Closing Date hereof and made available to the parties
responsible for the preparation of Company's filings with the Commission and
other public disclosure documents.
Section 1.21--ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
contemplated by this Agreement or any transactions or developments contemplated
thereby, from the date of this Agreement until the completion of the Closing,
HSPL will, other than as has been disclosed in writing to Company: (i) incur any
liability or obligation whatsoever, secured or unsecured, direct or indirect,
other than in the ordinary and usual course of its business; (ii) enter into any
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contracts or agreements whatsoever, other than in the ordinary and usual conduct
and course of either of its businesses; (iii) change any of its accounting
methods, principles, practices or policies; (iv) cease to operate its
properties, if any, or fail to maintain any of its properties, rights and assets
consistently with past practices; (v) sell or otherwise in any way alienate or
dispose of any of its assets other than in the ordinary course of business and
in a manner consistent with past practices; (vi) modify its charter documents or
capital structure; (vii) make any dividend to any of its shareholders or to any
affiliate or associate thereof, or reserve or declare any dividend; (viii) other
than in the ordinary course of business, grant to any customer any special
allowance or discount, or change its pricing, credit or payment policies; (ix)
make any loan or advance, or assume, guarantee or otherwise become liable with
respect to the liabilities or obligations of any person, or (x) purchase or
otherwise acquire any shares or other equity security, as the case may be, in
any person.
Section 1.22--INFORMATION SUPPLIED. The information supplied by Owner
and HSPL specifically for inclusion in the information statement to be sent to
the shareholders of Company shall not contain any untrue statement of material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which it was made, not misleading or omit to state any
material fact necessary to correct any statement in any earlier communication to
the shareholders of Company with respect to this Agreement or any transaction or
development contemplated thereby or hereby, which has become false or
misleading.
Section 1.23--RELIANCE. All representations and warranties of Owner and
HSPL contained herein, shall be deemed to have been relied upon by Company
notwithstanding any investigation heretofore or hereafter made by Company or by
its counsel and shall survive the date hereof and continue in full force and
effect for the benefit of Company until the limitation period under any
applicable tax statute has expired or, in all other cases, until the first
anniversary of the date hereof.
Section 1.24--FULL DISCLOSURE. The representations and warranties of
Owner and HSPL contained in this Article I of this Agreement or to be furnished
in or in connection with documents mailed or delivered to the Company in
connection with the consummation of this Agreement, do not contain or will not
contain, any untrue statement of a material fact, or omit to state a material
fact required to be stated herein or therein or necessary to make the statements
herein or therein, in the light of the circumstances under which they were made,
not misleading.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND
WARRANTIES OF AOBO
As an inducement to, and to obtain the reliance of Owner and HSPL, AOBO
represents and warrants as follows:
Section 2.01--ORGANIZATION AND DUE AUTHORIZATION. AOBO is a corporation
duly organized, validly existing, and in good standing under the laws of the
state of Nevada 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. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated hereby will not violate any provision of AOBO's
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certificate of incorporation or bylaws. AOBO has taken all action required by
law, its certificate of incorporation, its bylaws, or otherwise to authorize the
execution and delivery of this Agreement, and AOBO has full power, authority,
and legal right and has taken all action required by law, its certificate of
incorporation, bylaws, or otherwise to consummate the transactions herein
contemplated.
Section 2.02--CAPITALIZATION AND OUTSTANDING SHARES. As of August 17,
2004, AOBO'S authorized capital currently consists of 60,000,000 shares of
common stock, par value $0.001 (the "Common Stock"), of which 33,941,827 shares
of Common Stock are issued and outstanding and 2,000,000 shares of preferred
stock, par value $0.001 (the "Preferred Stock"), of which 1,000,000 shares of
Preferred Stock are issued and outstanding. All issued and outstanding shares
are legally issued, fully paid, non-assessable and not issued in violation of
the pre-emptive or other rights of any person.
Section 2.03--APPROVAL OF AGREEMENT. The board of directors of AOBO has
approved this Agreement and the transactions contemplated herein
ARTICLE III
PURCHASE AND SALE, PURCHASE PRICE AND CLOSING
Section 3.01--PURCHASE AND SALE, THE PURCHASE PRICE. At Closing, Owner
agrees to assign, transfer, and deliver to AOBO, free and clear of all liens,
pledges, encumbrances, charges, restrictions or known claims of any kind,
nature, or description, the whole ownership interest (represented by shares) of
HSPL against a total purchase price of seven million two hundred and twenty nine
thousand US Dollars (US$7,229,000) ("Purchase Price"), to be paid at Closing by
AOBO by wire transfer or other immediately available funds. Furthermore, AOBO
shall assume all of the liabilities of HSPL, including but not limited to three
million six hundred and fourteen thousand US dollar (US$ 3,614,000) equivalent
bank loan of HSPL.
Section 3.02--[RESERVED]
Section 3.03--CLOSING. The closing ("Closing") of the transactions
contemplated by this Agreement shall be at a mutually convenient time as
determined by the Parties but no later than fourty five (45) days after the
signing of this Agreement ("Closing Date").
Section 3.04--CLOSING EVENTS. At the Closing, each of the Parties
hereto shall execute, acknowledge, and deliver (or shall ensure to be executed,
acknowledged, and delivered) the following:
(a) in the case of Owner, the proper filings and other
documentation to be executed by the Owner with relevant government authorities,
agencies and departments to transfer the whole ownership interest of HSPL duly
to AOBO; and
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(b) in the case of AOBO, the total Purchase Price of seven
million two hundred and twenty nine thousand US Dollars (US$7,229,000) to be
deposited in the designated bank account of the Owner.
(c) as soon as practical but no later than fifteen (15) days
after the Closing, the Owner has to arrange and effectuate all necessary
regulatory procedures with relevant Chinese government authorities.
Each Party shall also deliver such other items as may be reasonably
requested by the other Party and/or their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF AOBO
The obligations of AOBO under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 4.01--ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Owner and HSPL 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 and as of the Closing Date (except
for changes therein permitted by this Agreement), and Owner and HSPL shall have
performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by them prior to or at the Closing.
Section 4.02--NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business, or operations of HSPL nor shall any event have occurred
which, with the lapse of time or the giving of notice, may cause or create any
material adverse change in the financial condition, business or operations of
HSPL.
Section 4.03--AUDIT OF ACQUISITION. HSPL shall have caused the
preparation and subsequent audit of the consolidated financial statements of
HSPL for the annual period ended December 31, 2003 to be performed in accordance
with US GAAP to the reasonable satisfaction of AOBO for the purposes of the
transactions herein contemplated but no later than 90 days after the signing of
this Agreement, subject to extension by written approval from AOBO.
Section 4.04--CONSENTS, ETC. AOBO shall have received evidence, in form
and substance reasonably satisfactory to it, that such licenses, permits,
consents, approvals, authorizations, qualifications and orders of governmental
authorities, shareholders and other third parties as necessary in connection
with the transactions contemplated hereby have been obtained.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF OWNER AND HSPL
The obligations of Owner and HSPL under this Agreement are subject to
the satisfaction, at or before the Closing Date, of the following conditions:
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Section 5.01--ACCURACY OF REPRESENTATIONS. The representations and
warranties made by AOBO 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 AOBO shall have performed and complied
with all covenants and conditions required by this Agreement to be performed or
complied with by AOBO prior to or at the Closing.
Section 5.02--NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business, or operations of AOBO nor shall any event have occurred
which, with the lapse of time or the giving of notice, may cause or create any
material adverse change in the financial condition, business or operations of
AOBO.
ARTICLE VI
MISCELLANEOUS
Section 6.01--GOVERNING LAW. This Agreement shall be governed by,
enforced, and construed under and in accordance with the laws of the United
States of America and, with respect to the matters of state law, with the laws
of the State of New York, without regard to its conflicts of law principles.
Section 6.02--RESOLUTION OF DISPUTES.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, or the interpretation, breach, termination or
validity hereof, shall first be resolved through friendly consultation, if
possible. Such consultation shall begin immediately after one Party has
delivered to the respective Party a written request for such consultation (the
"Consultation Date"). If the dispute cannot be resolved within 30 days following
the Consultation Date, the dispute shall be submitted to arbitration upon the
request of either Party, with written notice to the other Party.
(b) ARBITRATION. The arbitration shall be conducted in New
York, New York under the auspices of the American Arbitration Association
("AAA") in accordance with the commercial arbitration rules and supplementary
procedures for international commercial arbitration of the AAA. There shall be
three arbitrators--one arbitrator shall be chosen by each party to the dispute
and those two arbitrators shall choose the third arbitrator. All arbitration
proceedings shall be conducted in English. Each party to the dispute shall
cooperate with the other in making full disclosure of and providing complete
access to all information and documents requested by the other party to the
dispute in connection with the arbitration proceedings. Arbitration shall be the
sole, binding, exclusive and final remedy for resolving any dispute between the
parties thereto; either party thereto may apply to any court of competent
jurisdiction in the State of New York for enforcement of any award granted by
the arbitrators.
(c) During the period when a dispute is being resolved, except
for the matter being disputed, the Parties shall in all other respects continue
to abide by the terms of this Agreement.
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Section 6.03--ATTORNEY'S 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
attorney's fees, incurred in connection therewith and in enforcing or collecting
any judgment rendered therein.
Section 6.04--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.
Section 6.05--ENTIRE AGREEMENT. This Agreement and any agreements,
documents and instruments to be executed and delivered pursuant hereto are
intended to embody the final, complete and exclusive agreement among the Parties
with respect to the subject matter of this Agreement, and are intended to
supersede all prior agreements, understandings and representations written or
oral, with respect thereto.
Section 6.06--SURVIVAL; TERMINATION. The representations, warranties,
and covenants of the respective Parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of three
months. All rights and obligations under this entire Agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators and
assigns of the Parties.
Section 6.07--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. For purposes of this Agreement,
facsimile signatures may be deemed originals.
Section 6.08--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 of 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 writing signed by all Parties hereto, 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 may be extended by a writing
signed by the Party or Parties for whose benefit the provision is intended.
Section 6.09--THIRD PARTY CONSENTS AND CERTIFICATES. The Parties agree
to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein contemplated.
Section 6.10--NOTICE. Any notice or other communication given hereunder
shall be deemed sufficient if in writing and sent by registered or certified
mail, return receipt requested, addressed to AOBO, at its principal office,
XX.000 XXXXX XXXX, XXXXXXX DISTRICT, HARBIN, CHINA, 150086, Attention: Xxxxxx
Xxx, Chairman and CEO, to Owner at the following address: No. 485,Nanzhi Road,
Daowai District, Harbin, Attention: General manager: Xxxxxx Xx. Notices shall be
deemed to have been given on the date of mailing, except notices of change of
address, which shall be deemed to have been given when received.
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Section 6.11--SEVERABILITY. In the event that any provision or any part
of any provision of this Agreement shall be void or unenforceable for any reason
whatsoever, then such provision shall be stricken and of no force and effect.
However, unless such stricken provision goes to the essence of the consideration
bargained for by a Party, the remaining provisions of this Agreement shall
continue in full force and effect, and to the extent required, shall be modified
to preserve their validity.
Section 6.12--NO THIRD PARTY RIGHTS. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and the
respective successors and assigns of the foregoing, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any Party, nor shall any provision hereof give any third
persons any right of subrogation or action over or against any Party.
Section 6.13--CONSTRUCTION. The language in all parts of this Agreement
shall in all cases be construed simply, according to its fair meaning, and not
strictly for or against any of the Parties. Without limitation, there shall be
no presumption against any Party on the ground that such Party was responsible
for drafting this Agreement or any part thereof.
Section 6.14--SECTION HEADINGS. The section headings of this Agreement
are for convenience of reference only and shall not be deemed to alter or affect
any provision hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Parties hereto have caused this Purchase
Agreement to be duly executed as of the day and year first above written.
AMERICAN ORIENTAL BIOENGINEERING, INC.
By: _______________________
Name: Xxxxxx Xxx
Title: Chairman and CEO
HEILONGJIANG SONGHUAJIANG PHARMACEUTICAL LIMITED
By: ____________________
Name:
Title:
OWNER The Government of Heilongjiang Province of China
By: ____________________
Name: Xxx Xxx Lu
Title: General Manager
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