Exhibit 10(h)i Acquisition Agreement Dated July 5, 2002
ACQUISITION AGREEMENT
This ACQUISITION AGREEMENT (the "Agreement") is made and entered into this 5th
day of July 2002 by and among HUAYANG INTERNATIONAL HOLDINGS, INC., a public
held corporation organized in the State of Nevada ("Buyer"), XX. XXXXX HONGWEI,
a citizen and resident of China ("Seller"), and JIAHE MEDICINE GROUP, a company
organized in the People's Republic of China (the "Company"). Buyer, Seller and
the Company are sometimes individually referred to herein as a "Party" arid
together as the "Parties."
WHEREAS, Buyer, directly and through one or more subsidiaries, intends to engage
in the pharmaceutical business in China;
WHEREAS, the Company is engaged in the pharmaceutical business in China;
WHEREAS, Seller directly owns 100% equity interest and registered capital
in the Company;
WHEREAS, Buyer intends to purchase with certain number shares of the common
stock of Buyer from Seller, and Seller desires to sell, assign, transfer and
deliver to Buyer, all of the equity interest and registered capital of the
Company ("Equity Interest") pursuant to the terms of this Agreement;
NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises and of
the mutual promises and covenants hereinafter set forth, and intending to be
legally bound, the parties hereby agree as follows:
A. PURCHASE AND PAYMENT
1. Purchase and Sale of the Equity Interest.
1.1 Subject to the terms and conditions of this Agreement, Buyer agrees to
purchase from Seller and Seller agrees to sell, assign, transfer and deliver to
Buyer all of the equity interest and registered capital of the Company at
closing of such acquisition transaction (the "Closing") to be held at the place
and on the date hereinafter provided (the "Closing Date").
1.2 The purchase and payment for the Equity Interest by Buyer, and the sale,
assignment, transfer and delivery of the Equity Interest by Seller, shall take
place on the Closing Date at the Closing in the manner hereinafter provided,
subject to the fulfillment of the conditions hereinafter provided.
2. Purchase Price.
The aggregate purchase price of the Equity Interest (the "Purchase Price"),
shall be certain number of authorized but unissued shares of the common stock of
Buyer (the "Shares"). The number of Shares issued comprising the Purchase Price
(the "Number of Shares") should be equal to the total shareholders' equity of
the Company, as shown on the most recent balance sheet of the Company after
adjustment in accordance with the United States Generally Accepted Accounting
principles, divided by the next book value of each share (total shareholder's
equity divided by total number of outstanding shares) of the commond stock of
Buyer, as calculated with the audited balance sheet of Buyer dated December 31,
2001. The Shares shall be issued to Seller without registration pursuant to
Section 4 (2) of the Securities Act of 1933, as amended (the "Act").
B. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby warrants and represents to Seller that, as of the date hereof, the
following statements are true and correct.
1. CORPORATE STATUS
The Buyer is (a) duly organized, validly existing and in good standing under the
laws of the State of Nevada; and (b) has full corporate power to own all of its
properties and carry on its business as it is now being conducted.
2. SHARES ISSUED AND OUTSTANDING
2.1 Buyer is authorized to issue 50,000,000 shares of common stock, US $0.02 par
value.
2.2 As of this date, Buyer has issued and outstanding 7,700,807 shares of common
stock. Buyer warrants that there are no other shares issued and outstanding
except as noted in this paragraph herein and that there are no options or
warrants outstanding.
2.3 As of the Closing Date, Buyer will have after issuing the Shares to the
Seller, a total of 7,700,807 shares plus the Number of Shares, as set forth in
Paragraph A.2, of common stock issued and warrants outstanding.
3. TRADING OF THE COMMON STOCK
As of this date, the common stock of Buyer is quoted on the OTC I Bulletin Board
in the United States under the symbol of XXXX.
0. THE SHARES OF COMMON STOCK ISSUED TO SELLER
The stock certificate for the Shares that Buyer will issue to Seller under this
Agreement shall indicate Seller as the sole owner of the Shares, which are fully
paid, non-assesible and free and clear of all encumbrances. The Shares will be
issued to Seller without registration pursuant to Section 4(2) of the Act.
5. CAPITAL STRUCTURE
The Buyer (a) is authorized by its charter and applicable law to issue capital
stock of the type and having par values as disclosed in Paragraph 2.1; (b) has
no issued and outstanding shares of its capital stock whatever, except as
specifically indicated in Paragraph 2.2, all of which such shares are fully paid
and non-assessable; (c) does not have authorized, issued or outstanding any
subscription, option, warrant, conversion or other rights to the issuance or
receipt of shares of its capital stock; (d) has all voting rights vested
exclusively in the presently issued and outstanding capital stock; and (e) has
outstanding no bonds, debentures or other similar evidences of indebtedness
except as specifically disclosed in its balance sheet as of December 31, 2001,
(and related notes thereto).
6. AUTHORITY TO BUY
Buyer have full right, power and authority to buy the Equity Interest of the
Company and deliver the Shares to the Seller in accordance with the terms of
this Agreement, and otherwise to consummate and close the transaction provided
for in this Agreement in the manner and upon the terms herein specified.
7. NO VIOLATION
The execution and carrying out of this Agreement will not conflict with, or
result in any breach of any of the terms, or create a charge or encumbrance upon
any of the properties or assets, or outstanding stock of Buyer pursuant to any
corporate charter, bylaw, indenture, mortgage or lease to which Buyer is a party
or by which it is bound. The execution and carrying out of this Agreement will
not violate any provision of law.
8. FINANCIAL STATEMENTS
At or prior to the date of this Agreement, the Buyer has delivered to the Seller
audited financial statements prepared in accordance with United States Generally
Accepted Accounting Principles as of December 31, 2001, and said financial
statements, including the related notes and explanatory notes, present fairly
the financial position of the Buyer at the date thereof and the results of its
operations for the periods therein indicated, in conformity with United States
Generally Accepted Accounting Principles applied on a basis consistent in each
case with that of the preceding year.
9. PERIOD SINCE MOST RECENT FINANCIALS
From the date of the most recent balance sheet included in the Buyer's Financial
Statements, the Buyer has:
9.1 Not suffered any material adverse change in its financial condition, assets,
liabilities or business.
9.2 Not made any distribution to its shareholders, as shareholders, of any
assets, by way of dividends, purchase of shares or otherwise.
9.3 Not mortgaged, pledged or granted a lien or encumbrance on any of its
properties or assets.
9.4 Not increased the rate of compensation for any of its officers or directors
nor for any executive employees. I
9.5 To the best knowledge of Buyer, it not incurred any liabilities, contingent
or otherwise, except those stated in the balance sheet of the Buyer as of
December 31, 2001, or described in any notes accompanying said balance sheet,
and current liabilities incurred in the ordinary and usual course of business
since the date of the said balance sheet.
10. HOTEL GROUP
At or prior to the date of this Agreement, Buyer has delivered to Seller a copy
of the Board Resolution of Buyer effecvtive June 28, 2002 approving the transfer
of the twenty percent interest in the Hotel Group owned by Buyer to a related
company to payoff a loan, which was past due, owed by Buyer to such related
company.
11. TRUTH OF REPRESENTATION
No representation by the Buyer made in this Agreement and no statement made in
any certificate or schedule furnished in connection with the transaction herein
contemplated contains or will contain any knowingly untrue statement of a
material fact or knowingly omits or will omit to state any material fact
reasonably necessary to make any such representation or any such statement not
misleading to a prospective holder of the Shares.
12. DISCLOSURE OF INFORMATION
Buyer is fully aware of the condition and prospects, financial and otherwise, of
the Company, having been supplied with such financial and other data relating to
the Company as Buyer considered necessary and advisable to enable it to form a
decision concerning the purchase herein provided.
C. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY
Seller and the Company hereby warrant and represent to Buyer that, as of the
date hereof, the following statements are true and correct.
1. CORPORATE STATUS
The Company is (a) duly organized, validly existing and in good standing under
the laws of the People's Republic of China; and (b) has full corporate power to
own all of its properties and carry on its business as it is now being
conducted.
2. CAPITAL STRUCTURE.
The Company (a) is duly organized with a registered capital of 5,576,000 RMB,
all of which is presently owned by Seller and are fully paid and non-assessable;
(b) has no other authorized or outstanding registered capital whatever, except
as specifically disclosed herein; (c) does not have authorized, issued or
outstanding any subscription, option, warrant, conversion or other rights to the
issuance or receipt of equity interest and shares of its registered capital; (d)
has all voting rights vested exclusively in the owner of its registered capital;
and(e) has outstanding no bonds, debentures or other similar evidences of
indebtedness except as specifically disclosed in its balance sheet as of
December 31, 2001, (and related notes thereto).
3. OWNERSHIP OF THE COMPANY AND AUTHORITY TO SELL
Seller is the sole owner of the company and owns all of the registered capital
of the Company. Seller owns such registered capital free and clear of all liens,
claims, debts, encumbrances and assessments, and any and all restrictions as to
sale, assignment or transferability thereof. Sellers has full rights, power and
authority to sell, transfer and deliver the Equity Interest and registered
capital to Buyer in accordance with the terms of this Agreement, and otherwise
to consummate and close the transaction provided for in this Agreement in the
manner and upon the terms herein specified.
4. NO VIOLATION
The execution and carrying out of this Agreement will not conflict with, or
result in any breach of any of the terms, or create a charge or encumbrance upon
any of the properties or assets of the Company pursuant to any corporate
charter, bylaw, indenture, mortgage or lease to which the Company or Seller is a
party or by which it is bound. The execution and carrying out of this Agreement
will not violate any provision of law.
5. GOVERNMENTAL CONSENT OR APPROVAL REQUIRED
All necessary consent, approval or authorization of any governmental or
regulatory authority as required for the valid authorization, execution and
delivery by the Company and Seller of this Agreement or for the consummation of
the transactions contemplated hereby shall have been obtained or made by Seller
and the Company prior to the Closing.
6. SHARES OF COMMON STOCK OF BUYER
6.1 Seller has been fully advised by Buyer that Buyer will issue the Shares to
Seller without registration in accordance with Section 4(2) of the Act and that
Buyer's reliance upon the statutory exemption is based in large part upon
Seller's representations made to Buyer.
6.2 Seller has the full right, power and authority to acquire and hold the
Shares in accordance with the terms of this Agreement and otherwise to
consummate and close the transaction provided for in this Agreement in the
manner and upon the terms herein specified.
7. FINANCIAL STATEMENTS
At or prior to the date of this Agreement, the Company has delivered to Buyer
and its auditors a copy of the Financial Statements of the Company which are
most recent financial statements available, and said financial statements,
including the related notes and explanatory notes, present fairly the financial
position of the Company at the date thereof and the results of its operations
for the periods therein indicated, in conformity with the Chinese accounting
principles applied on a basis consistent in each case with that of the preceding
year.
8. PERIOD SINCE MOST RECENT FINANCIALS
From the date of the most recent balance sheet included in the Company's
Financial Statements, the Company has not:
8.1 Suffered any material adverse change in its financial condition, assets,
liabilities or business.
8.2 Affirmatively waived, canceled or compromised any of its rights, debts or
claims of substantial value.
8.3 Transferred any equity interest, or issued rights or options to purchase or
convert into such equity interest, or other securities.
8.4 Made any distribution to its shareholders, as shareholders, of any assets,
by way of dividends, purchase of shares or otherwise.
8.5 Mortgaged, pledged or granted a lien or encumbrance on any of its properties
or assets.
8.6 Sold or transferred any of its assets, tangible or intangible, except
inventory and other assets sold or disposed of in the ordinary and usual course
of business.
8.7 Incurred any extraordinary losses, within the meaning of generally accepted
accounting principles, and/or incurred or become liable for any obligations or
liabilities except current liabilities, within the meaning of generally accepted
accounting principles, incurred in the ordinary and usual course of business, or
made any extraordinary expenditures, within the meaning of generally accepted
accounting principles, other than for additions and betterments to existing
plant, equipment and facilities.
8.8 Increased the rate of compensation for any of its officers or directors nor
for any executive employees.
8.9 Experienced any material adverse effect on its business, properties and
assets as the result of any fire, explosion, earthquake, flood, drought,
windstorm, accident, strike, embargo, confiscation of vital equipment, material
or inventory, cancellation of major contracts or lost customer whose business
with seller represents 5% or more of seller gross revenue, riot, activities of
armed forces, or acts of God or the public enemy.
8.10 To the best knowledge of Seller, the Company has not incurred any
liabilities, contingent or otherwise except those stated in the most recent
balance sheet of the Company or described in any notes accompanying said balance
sheet, and current liabilities incurred in the ordinary and usual course of
business since the date of the said balance sheet.
9. RELATED TRANSACTIONS
Except as set forth on the Company's Financial Statements, including the related
notes, no current or former owner, director, officer or employee of the Company,
nor any "associate" (as defined in the rules and regulations promulgated under
the Securities Exchange Act of 1934, as amended) of the Company and Seller, is
presently, or since the inception of the Company has been, directly or
indirectly through his or its affiliation with any other person or entity, a
party to any transaction with the Company providing for the furnishing of a
material amount of services by or to, or rental of real or personal property
from or to, or otherwise requiring cash payments to or by any such person. For
the purposes of this Agreement, a transaction of the type described in this
paragraph is sometimes herein referred to as a "Related Transaction".
10. TITLE TO ASSETS
The Company represents that it has good and marketable title to all of its
assets, which good and marketable title is free and clear of all mortgages,
pledges, liens, credit agreements, title retention agreements, security
agreements, taxes, claims, debts and other obligations and encumbrances.
11. PEACEABLE POSSESSION OF ASSETS
The ownership and possession of all of the assets of the Company have been
peaceable and undisturbed and the title thereto has never been disputed or
questioned to the knowledge of the Company; nor does the Company know of any
facts by reason of which the possession or title thereof by the Company might be
disturbed or questioned or by reason of which any claim to its assets might
arise or be set up adverse to the Company.
12. REGULATORY GOOD STANDING
The Company has all material rights, certificates, authorities, permits,
licenses, franchises and other authorizations necessary to and has complied in
material respects with all laws applicable to; the conduct of its business in
the manner and in the areas in which such business is presently being conducted
and all such certificates, authorities, rights, permits, licenses, franchises
and authorizations are valid, in good standing, in full force and effect, under
no orders of suspension or restraints, and subject to no disciplinary,
probationary or other orders. To the best of its knowledge, the Company has
engaged in no activity whatever which would cause or lead to proceedings
involving revocation, suspension, restraint, disciplinary action or any other
action whereby any of such certificates, authorities, rights, permits, licenses,
franchises or authorizations, or any part thereof, might be canceled,
terminated, suspended, impaired, lost or otherwise adversely affected, and no
action or proceeding looking to or contemplating any of the foregoing is pending
or to the Company's knowledge threatened. The foregoing shall not be deemed to
constitute a warranty or representation that the Company has not heretofore or
shall not hereafter suffer to be committed minor and unintentional violations of
any governmental regulations of such nature as not to cause either suspension or
revocation of the company's operating authority.
13. LITIGATION
The company is not a party to any pending or to its knowledge threatened suit,
action, proceeding, prosecution or litigation which might materially adversely
affect the financial condition, business, assets, properties, certificates,
rights, authorities, franchises or authorizations of the Company, or materially
interfere therewith, nor to the knowledge of the Company is there any threatened
or pending governmental investigation involving the Company or any of. its
operations, including inquiries, citations or complaints by any Government,
administration entity or agency, which would materially adversely affect the
financial condition, business, assets or properties of the Company; and there
are no outstanding, existing or pending judgments, orders, decrees, rulings,
directives, stipulations or other mandates of any court or any public or
quasi-public agency, body or official which have been in any way violated as
they relate to or affect the Company or any of the Company's properties,
businesses, operations, affairs or activities.
14. DEFAULTS
There are no material defaults on the part of the Company under any contract,
lease, mortgage, pledge, credit agreement, title retention agreement, security
agreement, lien, encumbrance or any other commitment, contract, agreement or
undertaking to which the Company is a party.
15. TAX RETURNS
All tax returns for taxes to which the Company, or its assets, operations or
income may be subject, due as of the date hereof, have been duly prepared and
filed in good faith and all taxes shown thereon have been paid or are accrued on
the books of the Company.
16. WITHHOLD TAXES
All taxes and other assessments and levies which the Company is required by law
to withhold or to collect have been duly withheld and collected and have been
paid over to the proper governmental authorities or are held by the Company for
such payment and all such withholding and collections and all other payments
unpaid and due in connection therewith are duly reflected in the balance sheet
of the Company.
1.7. LABOR PROBLEMS
No labor or labor union problems of any kinds are presently existing, suffered,
pending or threatened with respect to the Company, its employees, business
operations, assets or properties.
18. COMPLIANCE WITH LAW
All of the properties, assets and business operations of the Company conform in
material respects with all applicable ordinances, regulations, laws and
statutes, including but not limited to building, zoning, safety, environmental
and other such laws, rules, regulations and ordinances.
19. INFRINGEMENTS
The Company has never been charged with infringement or violation of any
adversely held patent, trademark, trade name, or copyright, with claims reading
on operations of the Company or on apparatus or methods employed by the Company
in effecting the same, which: would materially adversely affect any operation of
the company, nor is the Company using or in any way making use of any
confidential information or trade secrets, of any former employer or any present
or past employee of the Company except as a result of the acquisition of the
business of such former employer.
20. TRUTH OF REPRESENTATION
No representation by the Company and Seller made in this Agreement and no
statement made in any certificate or schedule furnished in connection with the
transaction herein contemplated contains or will contain any knowingly untrue
statement of a material fact or knowingly omits or will omit to state any
material fact reasonably necessary to make any such representation or any such
statement not misleading to a prospective purchaser of the Equity Interest.
D. COVENANTS OF SELLER AND THE COMPANY
Seller and the Company hereby covenant and agree as follows:
1. INSPECTION OF RECORDS
During the period from the date hereof through the Closing Date as that term is
hereinafter defined (the "Contract Period"), the Buyer shall have the right and
opportunity to make such examination and investigation of the Company's
business, properties and affairs as the Buyer may deem reasonably necessary or
desirable for all purposes relating to this Agreement and to that end,
throughout the Contract Period, Seller and the Company will allow and grant the
Buyer, its officers, counsel, accountants, auditors and executive employees
full, free and continuous access, during normal business hours and without
interference with the conduct of the Company's business, to all of the premises,
properties, contracts, commitments, leases, books, papers, documents,
instruments, books of account, minutes and other records of the Company and will
furnish and provide Buyer with all such financial and other statements and all
such additional information and particulars in respect of the business,
properties and affairs of the Company as the Buyer may, from time to time during
the Contract Period, reasonably request or require.
2. CONDUCT OF BUSINESS
During the period from the date hereof to the closing Date as that term is
hereinafter defined, the Company shall:
2.1 Conduct its business and operations solely in the usual, normal and ordinary
course;
2.2 Make no change of its registered capital;
2.3 Not sell, transfer or dispose of any of the equity interest and registered
capital, or issue any options or rights to purchase such equity interest and
registered capital;
2.4 Make no distributions to its owner of registered capital, as owner of its
registered capital, of any of its assets or properties by way of dividends,
purchase of shares, redemption or otherwise.
2.5 Not transfer to any person, firm or corporation any customers, customer
lists or customer accounts of the Company;
2.6 Make no increase of any kind in any salary, wages, bonus or compensation of
any officer, employee, representative or agent of the Company or pay any extra
compensation of any kind whatever to any of such persons;
2.7 Not sell, transfer or dispose of any of its business, properties or assets,
tangible or intangible, except for a full and fair consideration in the usual
and ordinary course of business;
2.8 Make no purchases or acquisitions of any real or personal property nor
increase or decrease inventory, except in the usual and ordinary course of its
business;
2.9 Not subject any of its business, property or assets whatever, tangible or
intangible, to any mortgage, lien, pledge, hypothecation or encumbrance in any
manner except for a full and fair consideration in the usual and ordinary course
of business;
2.10 Not borrow any money, make any unusual or extraordinary expenditures or
incur or become liable for any obligations or liabilities except current
liabilities in the usual and ordinary course of its business.
2.11 Not make any loans or advances or extend any credit except in the usual and
ordinary course of its business.
3. PUBLICITY
All notices to third parties and all other publicity concerning the transactions
contemplated by this Agreement shall be planned and coordinated jointly by Buyer
and by the Company.
4. WARRANTIES AND REPRESENTATIONS
The Company will promptly furnish to Buyer copies of any and all financial
statements of the Company prepared by or for the Company subsequent to the date
hereof, and will promptly furnish to and advise the Buyer of any and all
material information, details, facts and circumstances concerning the Company's
financial condition, or business arising subsequent to the date of this
Agreement by reason of which any changes, modifications, amendments, additions
or deletions from any Schedule annexed hereto or any warranty, representation,
covenant or condition recited herein would be necessary to render the same true
and correct in material respects and not materially false or misleading, as of
the date such information, details, facts and circumstances are furnished to the
Buyer.
E. FURTHER COVENANTS OF SELLER AND THE COMPANY
Seller and the Company hereby further covenant and agree as follows:
1. OBLIGATIONS AFTER CLOSING
After the Closing of the transaction comteplated by this Agreement, the Company
as a subsidiary of Buyer will continue to furnish and provide Buyer with all
financial statements and all material information and particulars in respect of
the business, properties and affairs of the Company, and will accept and assist
the review and audit by the accounting firm appointed by Buyer in accorance with
the securities laws and regulations and the US generally accepted accounting
principle.
2. COMPLIANCE WITH SECURITIES LAWS
After the Closing of the transaction comteplated by this Agreement, the Seller
as a shareholder of Buyer will comply with all the United States securities laws
and regulations as long as Seller remians a shareholder of Buyer. Seller also
covenets and agrees Seller will not sell the Shares issued by Buyer to Seller
under this agreement within one year from the Closing date.
F. CONDITIONS PRECEDENT TO CLOSING
All obligations of the Buyer under this Agreement are subject to the fulfillment
of each of the following conditions, in addition to the fulfillment of any and
all other conditions set forth in this Agreement:
1. EFFECTIVENESS OF WARRANTIES.
Each and everyone of the warranties and representations of Seller and the
Company as herein before set forth in Paragraph C hereof, shall be true at and
as of the Closing Date as though such representations were made at and as of
such time.
2. PERPORMANCE OF COVENANTS.
Each and every covenant herein made by Seller and the Company, as set forth in
Paragraph D, shall have been duly performed at or prior to the closing Date.
3. FINANCIAL CONDITION.
The financial condition and financial statements of the Company are such that:
3.1 The Company's financial statements prepared in accordance with united States
Generally Accepted Accounting principles and the audit as prepared by a
Certified Public Accounting firm in accordance with US Generally Accepted
Auditing Standards must be commenced as of or prior to the Closing Date.
3.2 During the period from the date of the Company's December 31, 2001 financial
statement to the Closing Date, there have been no material adverse changes in
the capital stock or long term debt, within the meaning of general accepted
accounting principles, of the Company or any material adverse change in the
financial condition or results of operations of the Company.
4. CORPORATE ACTION.
4.1 Prior to the Closing Date, the Board of Directors of the Company and of the
Buyer shall have duly adopted resolutions to the same effect with respect to the
aforesaid matters.
4.2 Prior to the Closing Date, a majority of shareholders of the Company and of
the Buyer shall have approved with a written consent the above Board of
Directors resolutions to the same effect with respect to the aforesaid matters.
5. TERMINATION.
In the event any of the foregoing conditions shall not be fulfilled prior to the
Closing, unless caused by any action or failure to act on the part of Buyer,
Buyer shall have the right to terminate the Agreement by notice thereof in
writing to Seller and the Company, and the parties hereto shall be restored as
far as possible to status quo, whereupon the parties hereto shall have no
further obligations or liabilities hereunder, one against the other, except for
the obligation of Buyer under Paragraph I hereof which shall survive a
termination of this Agreement.
G. INDEMNIFICATION
1. INDEMNIFICATION OF BUYER BY SELLER
Seller shall indemnify and hold harmless the Buyer from and against any losses,
damages or expenses which may be suffered or incurred by Buyer arising from or
by reason of the inaccuracy of any statement, representation or warranty of
Seller or the Company made herein or, in any schedule hereto or certificate
delivered in connection herewith, or the failure of Seller or the Company to
perform any agreement made by them herein. Buyer shall give Seller prior written
notice of any claim, demand, suit or action with respect to which indemnity may
be sought pursuant to this Paragraph. Seller, in every such case, shall have the
right at his sole expense and cost to participate in contesting the validity or
the amount of any such claim, demand, suit or action. In the event Buyer suffers
loss, damage or expense and is entitled to indemnification under this Paragraph,
the amount of any such loss, damage or expense shall be assessed against and
shall be paid by Seller. Seller shall have no liability under this Paragraph
unless a claim for indemnification is made by the Buyer prior to the twelve (12)
month anniversary of the Closing.
2. INDEMNIFICATION OF SELLER AND THE COMPANY BY BUYER
The Buyer shall indemnify the Company and Seller and shall hold the Company and
Seller harmless, on demand, from and against any losses, damages or expenses
which may be suffered or incurred by the Company or Seller arising from or by
reason of the inaccuracy of any statement, representation or warranty of the
Buyer made herein or in any document or instrument delivered by Buyer to Seller
or the Company in connection with the transactions herein contemplated, or the
failure of Buyer to perform any agreement or covenant made by it herein or in
any document or instrument delivered by Buyer to Seller or the Company in
connection with the transactions herein contemplated.
3. NO ASSUMPTION OF LIABILITIES BY BUYER
Except as provided under this Agreement, Buyer shall not assume any liabilities
of Seller connected to or associated with the Company or otherwise. Except those
listed on the most recent balance sheet of the Company, Buyer shall not assume
any other liabilities, contingent or not, of the Company orginated prior to or
resulted from an event that occurred prior to the Closing of the transaction
contemplated by this Agreement. Seller hereby agrees to indemnify, defend, and
hold Buyer harmless from and against any damages, liabilities, losses and
expenses (including reasonable attorneys' fees) of any kind or nature whatsoever
which may be sustained or suffered by Buyer based upon any liabilities of Seller
or the liabilities of the Company described in this Paragraph being claimed or
asserted against Buyer, as the case may be, or by reason of any claim, action or
proceeding asserted or instituted growing out of any matter or thing related to
such liabilities.
H. CLOSING
1. TIME AND PLACE
The Closing under this Agreement and all deliveries hereunder shall take place
at the office of the Buyer on July 15, 2002 or such other date as shall be
agreed upon by all the parties.
2. DELIVERY OF DOCUMENTS TO BUYER
At the Closing, Seller and the Company will deliver to Buyer the following
documents:
2.1 A written opinion, dated on the closing Date, of counsel representing the
Company to the effect that the Company has been duly organized and is on the
Closing Date validly existing as a company in good standing under the laws of
the People's Republic of China; that the Company is duly qualified or licensed
to d9 business in places where it does business; that the Equity Interest
delivered by Seller to Buyer at the Closing have been validly issued and are
fully paid, and non- assessable, and constitute all of registered capital and
voting power of the Company; that such counsel knows of no litigation,
proceeding or investigation pending or threatened against the Company or Seller
which might result in any material adverse change in the business, properties or
financial condition of the Company or which questions the validity of this
Agreement or of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, other than as represented elsewhere in
this Agreement; and that to the knowledge of such counsel the sale, transfer,
assignment and delivery by Seller to Buyer of the Equity Interest pursuant to
this Agreement will vest in Buyer all rights, title and interest in and to such
Equity Interest free and clear of all liens, encumbrances, and equities.
2.2 A written confirmation dated the Closing Date, by the accountant who
reviewed any and all of the financial statements of the Company and who most
recently examined the books and records of the Company confirming that during
the period from the date of the Company's most recent financial statement to the
Closing Date, there have been no material adverse changes in the capital stock
or long term debt, of the Company or any material adverse change in the
financial condition or results of operations of the Company.
2.3 A certificate of the Chief Executive Officer and the Chief Financial Officer
of the Company, dated the Closing Date certifying to the best of his knowledge,
in reasonable detail as Buyer may request on and as of said date, to the
fulfillment, as of the Closing Date, of each and every one of the conditions
precedent to the closing set forth in Paragraph F hereof, and specifically
setting forth each and every change, amendment, modification, omission or
addition to any provision hereof or schedule annexed hereto or furnished
hereunder, necessary to render each and every one of the provisions hereof or
schedules annexed hereto correct and accurate in material respects and not
materially false or misleading.
2.4 Documents evidencing all required approvals by relevent governmental or
regulatory authorities and by the Board of Directors of the Company.
2.5 Such additional copies or duplicate originals of the above described
documents and such other documents, undertakings and assurances as Buyer shall
reasonably require, all of which documents, undertakings and assurances shall be
delivered to Buyer sufficiently in advance of the Closing Date, as Buyer shall
reasonably require, so as to permit adequate inspection and examination thereof,
all of which documents, undertakings and assurances shall be in form
satisfactory to counsel to Buyer.
3. DELIEVERY OF DOCUMENTS TO SELLER
At the Closing, Buyer will deliver, or cause to be delivered, to Seller a stock
certificate representing certain numbner of shares of the common stock of Buyer,
as sset forth in Paragraph A.2 hereof, or an irrevocable instruction to Buyer's
stock transfer agent authorizing the issuance/transfer of certificates
representing certain numbner of shares of the common stock of Buyer to Seller,
as sset forth in paragraph A.2 hereof, together with a written opinion of the
counsel representing Buyer to the effect that issuance of the Shares is exempted
under Section 4(2) of the Act.
I. CONFIDENTIALITY
1. OBLIGATIONS OF CONDIDENTIALITY OF BUYER
All information and documentation provided or to be provided by the Company or
Seller to Buyer in connection with this Agreement and the transactions
contemplated hereby has been and shall be provided in the strictest confidence.
Pending the Closing, Buyer covenants and agrees not to use any of such
information or documentation in or for the benefit of any business engaged in
directly or indirectly by Buyer and not to furnish or disclose any of such
information or documentation to any person or company. If the transactions
contemplated by this Agreement are not consummated, Buyer covenants and agrees
to return all such information and documentation to the Company and not retain
any copies thereof, and Buyer further covenants and agrees to maintain the
confidentiality of such information and documentation and to neither use any of
it in or for the benefit of any business engaged in directly or indirectly by
Buyer nor furnish or disclose any of it to any person or company.
2. OBLIGATIONS OF CONFIDENTIALITY AND NON-COMPETITION OF SELLER
Unless the transactions contemplated by this Agreement are not consummated,
Seller covenants and agrees to maintain the confidentiality of information,
documentation and technology of the Company and to neither use any of it in or
for the benefit of any other business engaged in directly or indirectly by
Seller nor furnish or disclose any of it to any other person or company. After
the Closing of this Agreement, unless agreed by Buyer in writing, Seller shall
not engage in any business that will directly or indirectly compete with the
Company
J. GENERAL PROVISIONS
1. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
Unless otherwise expressly provided herein, the representations, warranties,
covenants, indemnities and other agreements herein contained shall be deemed to
be continuing and shall survive the consummation of the transactions
contemplated by this Agreement.
2. DILIGENCE
The parties hereto agree that each shall with reasonable diligence proceed to
take all actions which may be reasonably required to consummate the transaction
herein contemplated.
3. WAIVERS
Each party hereto may:
3.1 Extend the time for performance of any of the obligations of the other
party;
3.2 Waive in writing any inaccuracies in representations and warranties made to
it contained in this Agreement or any schedule hereto or any certificate or
certificates delivered by any of the other parties pursuant to this Agreement;
and
3.3 Waive in writing the failure of performance of any of the agreements,
covenants, obligations or conditions of the other parties herein set forth, or
alternatively terminate this Agreement for such failure.
4. NON-WAIVER
The waiver by any party hereto of any breach, default, inaccuracy or failure by
another party with respect to any provision in this Agreement or any schedule
hereto shall not operate or be construed as a waiver of any other provision
thereof or of any subsequent breach thereof.
5. FURTHER ASSURANCES
Each party hereto agrees to execute such further documents or instruments,
requested by the other party, as may be reasonably necessary or desirable to
effect the purposes of this Agreement and to carry out its provisions, at the
expense of the party requesting the same.
6. ENTIRE AGREEMENT
This Agreement constitutes a complete statement of all the arrangements,
understandings and agreements between the parties, and all prior memoranda and
oral understandings with respect thereto are merged in this Agreement. There are
no representations, warranties, covenants, conditions or other agreements among
the parties except as herein specifically set forth, and none of the parties
hereto shall rely on any statement by or on behalf of the other parties which is
not contained in this Agreement.
7. SEVERABILITY
If any part of this Agreement is deemed to be unenforceable the balance of this
Agreement shall remain in full force and effect.
8. GOVERNING LAW
Irrespective of the place of execution or performance of this Agreement, it
shall be governed by and construed in accordance with the laws of the State of
New York, United States of America applicable to contracts made and to be
performed in the United States, and cannot be changed, modified, amended or
terminated except in writing, signed by the parties hereto.
9. BENEFIT AND ASSIGNABILITY
This Agreement shall bind and inure to the benefit of the parties hereto and
their respective legal representatives, successors and assigns, provided,
however, that this Agreement cannot be assigned by any party except by or with
the written consent of the others. Nothing herein expressed or implied is
intended or shall be construed to confer upon or to give any person, firm or
corporation other than the parties hereto and their respective legal
representatives, successors and assigns any rights or benefits under or by
reason of this Agreement.
10. APPROVAL OF COUNSEL
The form of all legal proceedings and of all papers and documents used or
delivered hereunder, shall be subject to the approval of counsels to Buyer and
Seller.
11. COSTS
Whether or not the transaction contemplated hereby are consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by respective parties.
12. COUNTERPARTS
This Agreement shall be executed in four (4) counterparts in English and four
(4) counterparts in Chinese, each of which shall be deemed an original, but all
of which together shall constitute one and the same Agreement.
13. NOTICES
Any notices and other communications under this Agreement shall be in writing
and shall be considered given if delivered personally or mailed by certified
mail to the party, for whom such notice is intended, at the address indicated at
the outset hereof (or at such other address as such party may specify by notice
to the other parties hereto).
14. HEADINGS
The headings in this Agreement are intended solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
15. FURTHER ACTION
Any further action required or permitted to be taken under this Agreement,
including giving notices, executing documents, waiving conditions, and agreeing
to amendments or modifications, may be taken on behalf of a party by its Board
of Directors, its President or any other person designated by its Board of
Directors, and when so taken shall be deemed the action of such party.
(The remaining of this page is intentionally left blank)
IN WITNESS WHEREOF, the parties hereto have respectively executed this Agreement
the date first above written.
BUYER:
HUAYANG INTERNATIONAL HOLDINGS, INC.
By:______________________________________
Xxx Xxxxxx, Chairman, President and CEO
Address: 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 000000
Witness:_________________________________
Xxxx Xxx
SELLER:
XXXXX XXXXXXX
By:______________________________________
Xxxxx Xxxxxxx
Address:
Witness:_________________________________
Xxxx Xxxxx
THE COMPANY:
JIAHE MEDICINE GROUP
By:______________________________________
Xxxxx Xxxxxxx, Chairman and President
Address:
Witness:_________________________________
Xxxx Xxxxx
