STOCK PURCHASE AGREEMENT
MEMORANDUM OF AGREEMENT made as of the First day of July, 1999
BETWEEN:
Baik Suk Kim,
for and on behalf of the Shareholders of Bon Hyung, Inc.
(hereinafter called the "Seller")
OF THE FIRST PART
A N D:
Euro Cap Inc.
a corporation incorporated under the laws of the State of New York
(hereinafter called the "Purchaser")
OF THE SECOND PART
WHEREAS, the Seller controls and represents all of the authorized issued
and outstanding interest of all the shareholders of Bon Hyang Inc.,
(herein referred to as the "Corporation"), and;
WHEREAS, the Purchaser desires to acquire all of the outstanding
shares of the Corporation's Common Stock, and;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH THAT, in
consideration of the covenants, agreements, warranties, and payments herein
set out and provided for, the parties hereby respectively covenant and
agree as follows:
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ARTICLE 1.00 - DEFINED TERMS
1.1 When used herein or in any amendments hereto, the following terms
shall have the following meanings respectively.
"Agreement" means this agreement and all schedules attached to this
agreement. The term includes each case where it may be supplemented or
amended from time to time. The expressions "hereof", "herein", "hereto",
"Hereunder", "hereby" and similar expressions refer to this agreement, and
"Article", "section" and "subsection" mean and refer to the specified
Article, section, and subsection of this agreement.
"books and records" means the accounting books of original entry including
the general ledger, record of cash receipts and disbursements, purchase
journal and banking records.
"Business" means the business presently and heretofore carried on by the
Corporation, namely the purchase and operation of real estate interests in
Korea and such other ventures as the directors of the Corporation may
from time to time deem appropriate.
"Business day" means a day other than a Saturday, Sunday or a day that is a
statutory holiday.
"Closing" means the closing of the transaction for purchase and sale
contemplated herein.
"Closing Date" or "Date of Closing" means July 1, 1999 or such other
date as may be mutually agreed upon in writing by the parties hereto.
"Closing Financial Statements" has the meaning ascribed to it in section
4.1.1.
"Common Shares" means the issued and outstanding common shares in the
capital of the Corporation.
"Corporation" means the companies listed hereinabove as the Seller.
"EBIT" means net earnings before income taxes, as determined by the auditors,
in accordance with GAAP.
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"Exchange Shares" means 10,000,000 common.
"Financial statements" means, collectively, the Closing Financial Statements
defined hereinabove.
"Intercompany Transactions" means, collectively, all transactions of any
nature between the Corporation and any Person associated with or related to
the Corporation or otherwise not dealing with the Corporation on an arms-
length basis.
"GAAP" means generally accepted accounting principles in the United States,
as appropriate and as in effect from time to time, consistently applied.
"NASDAQ" means the National Association of Securities Dealers and
Quotations.
"Non Arm's Length Person" means any shareholder director, officer, employee,
affiliate, or associate (as defined in the Securities Act of 1933, as
amended) of the Corporation. This term includes any one or more of the Seller
or any other Person who does not deal at arm's length with the Corporation
or any one or more of the Seller within the meaning of such concept as used
in the Income Tax Act (USA).
"Person" includes an individual, a corporation, a joint venture, a
partnership, a trust or trustee, any unincorporated organization, an
association, or any other entity (including any governmental,
administrative, or regulatory authority).
"Permitted Liens" means, at any time, such Liens as the Purchaser may agree,
in writing, shall constitute a Permitted Lien for the purpose of this
Agreement.
"Purchased Shares" shall have the meaning attributed thereto in section 3.1
hereof.
"Requirements of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational, governing documents of
such Person. This term includes any law, treaty, regulation or rule, or
determination of an arbitrator or a court or other governmental authority or
agency, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
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"Rule 144" means rule 144 of the United States Securities and Exchange
Commission.
"SEC" means the Securities and Exchange Commission of the United States.
"Seller" shall mean, specifically for purposes of this agreement and
identifying the parties thereto, all of the shareholders of the Corporation.
"Subsidiary", in relation to any body corporate, means any corporation of
which issued and outstanding securities are held, other than by way of
security only, by such body corporate, and includes any corporation in like
relation to a Subsidiary.
"this agreement", "this agreement", "herein", "hereto", "hereunder", "hereof"
and similar expressions refer to the within agreement and not to any
particular portion thereof, and include the schedules referred to in
Article 2.00.
"Time of Closing" means two o'clock in the afternoon on the Closing Date.
ARTICLE 2.00 - SCHEDULES
2.1 The following schedules, at time of closing, shall be delivered and
attached to and incorporated in this Agreement by reference and deemed to be
part hereof:
Schedule 4.2.1 - Financial Statements of Corporation
Schedule 4.2.6 - Corporation's Shareholders
Schedule 4.2.22 - Outstanding Obligations of Corporation
Schedule 4.2.23 - Leases of Corporation
Schedule 4.2.26 - Insurance Policies of Corporation
Schedule 4.2.34 - Accounts List of Corporation
Schedule 5.2.1 - Financial Statements of Purchaser
Schedule 5.2.7 - Outstanding Rights to Securities of Purchaser
Schedule 5.2.22 - Outstanding Obligations of Purchaser
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Schedule 5.2.33 - Accounts List of Purchaser
Schedule 5.2.37 - Shareholder Credit Facility to Purchaser
Schedule 6.2.4 - Power of Attorney
Schedule 9.9 - Indemnification Agreement
ARTICLE 3.00 - PURCHASE AND SALE
3.1 Subject to the terms and conditions hereof, the Seller hereby agree to
sell, assign, and transfer to the Purchaser a 100% interest in the
Corporation ("the Purchased Shares"). The Purchaser covenants and agrees to
purchase from the Seller the Purchased Shares for an amount equal in the
aggregate to the Purchase Price of $5,000,000 dollars ($5,000,000), payable
as hereinafter set out. At time of Closing, the Purchased Shares will
constitute 100% of the interst of all members of the Corporation.
3.2 Subject to the hereinafter described conditions, the Purchaser
hereby agrees to exchange the equivalent of 10,000,000 shares of its Common
Shares on the Closing Date, provided, however that 2.0 million common shares
arereserved for raising capital for the Corporation, (providing the Seller, on
a fully diluted basis including shares reserved for sale to the public for
raising Capital, shall have a total of 7/10 interest in the Purchaser),
with $0.000025 par value (the "Exchange Shares"), with the Seller for all of
the Purchased Shares as follows:
(A) at Closing, the Purchaser will issue and deliver 10,000,000 shares of
its common stock to the Seller on a pari passu basis, and;
(B) at Closing and immediately following completion of the exchange
described in Section 3.2(A), the Purchaser shall call a special meeting of
its stockholders for the following purposes:
(1) new directors shall be elected and new bylaws shall
be adopted;
(2) Purchaser's entry into this agreement shall be ratified, provided,
however, that such ratification shall not be a condition subsequent but a
condition precedent to this agreement and that by executing this Agreement,
the Purchasers declare such ratification has been effected.
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3.3 The Seller hereby represent, warrant, covenant, and acknowledge the
following.
3.3(A) The Purchased Shares are being transferred without registration
under the provisions of Section 5 of the Act.
3.3(B) All of the Purchased Shares will bear legends restricting the
transfer, sale, conveyance, and hypothecation within the jurisdictional
boundaries of the United States. This provision is exclusive of when such
Exchange Shares are registered under the provisions of Section 5 of the act
and under applicable state and provincial securities laws. Moreover, an
opinion of legal counsel may be provided by the Purchaser to certify that
such registration is not required as a result of applicable exemptions
therefrom.
3.3(C) The Seller shall not transfer any of the Exchanged Shares except
in compliance with all applicable laws.
3.3(D) The Seller is acquiring the Exchanged Shares for their own
account, for investment purposes only and not with a view to further sale
or distribution, except as permitted by law.
3.3(E) The Seller have made themselves fully and completely familiar
with all aspects of the Purchaser's business, operations, and financial
statements and, immediately following closing on this Agreement, will assume
operational control thereof.
3.4 The Purchaser hereby represents, warrants, covenants and acknowledges
the following.
3.4(A) The Exchange Shares are being transferred without Registration
under the provisions of Section 5 of the Securities Exchange Act of 1934, as
amended (the "Act") or New York Blue Sky Law.
3.4(B) All of the Exchange Shares will bear legends restricting the
transfer, sale, conveyance, and hypothecation within the jurisdictional
boundaries of the United States. This provision is exclusive of when such
Exchange Shares are registered under the provisions of Section 5 of the act
and under applicable state and provincial securities laws. Moreover, an
opinion of legal counsel may be provided by the Purchaser to certify that
such registration is not required as a result of applicable exemptions
therefrom.
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3.4(C) The Purchaser shall not transfer any of the Purchased Shares
except in compliance with all applicable laws.
3.4(D) The Purchaser is acquiring the Purchased Shares for its own
account, for investment purposes only and not with a view to further sale or
distribution.
3.4.1 The Purchaser has 40,000,000 shares of capital stock, $0.000025 par
value, authorized, 500 of which will be the total outstanding and fully
diluted amount immediately prior to conclusion of this.
3.4.2 Except as described herein, the Purchaser has no other, outstanding
securities of any class or of any kind or character. There are no
outstanding subscriptions, options, warrants, or other agreements or
commitments obligating the Purchaser to issue or sell any additional shares
or options or rights with respect thereto or any securities convertible into
any shares of Stock of any class.
3.5 The Purchase Price shall be paid and satisfied in full by the delivery
of the issued Exchange Shares at the Times of Closing.
3.6 The certificates representing the shares being exchanged shall each bear
the following legend:
"THESE SHARES HAVE NEITHER BEEN REGISTERED WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION OR WITH THE
SECURITIES REGULATORY AUTHORITIES OF ANY STATE, PROVINCE, OR
NATIONAL AUTHORITY). CONSEQUENTLY, THESE SHARES MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THEY ARE
FIRST REGISTERED UNDER APPLICABLE STATE, PROVINCIAL AND
FEDERAL SECURITIES LAWS OR THE TRANSACTION'S EXEMPTION
THEREFROM IS DEMONSTRATED TO THE FULL SATISFACTION OF THE
CORPORAITON'S LEGAL COUNSEL."
ARTICLE 4.00 - COVENANTS, REPRESENTATIONS, AND WARRANTIES OF AND THE
CORPORATION
4.1 The Shareholders of the Seller hereby covenant, represent, and warrant,
and the Seller, jointly and severally, represent to the best of their
knowledge, as follows:
4.2.1 Delivered at Closing, warranted to be true and correct to the best
knowledge of the Seller, and made a part hereof as Schedule 4.2.1 are the
following:
(A) unaudited balance sheet of the Corporation to be acquired as of July 31,
1999, with the related statement of operations and unaudited statement of
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cash flow for the period ending June 30, 1999 (such balance sheets,
statements of operations, and other statements are referred to herein as
the "Corporation's Financial Statements").
4.2.2 Corporation has been duly incorporated and organized and is validly
subsisting and in good standing under the laws of Korea.
4.2.3 Corporation has the corporate power to own or lease its property and
carry on the Business. The Corporation is duly qualified as a corporation to
do business under the laws of Colorado, being the only jurisdictions in which
the nature of its business or the property owned or leased by it makes such
qualification necessary.
4.2.4 At Time of Closing, the authorized capital of the Corporation shall
consist of 2,000,000 shares with a par value of 10,000 Won per share.
4.2.5 At Time of Closing, the paid up capital of the said corporation
shall be 500,000 shares and will have been duly and validly
allotted and issued and outstanding as fully paid and non-assessable and
beneficially owned by the Seller.
4.2.6 All of the Purchased Shares are owned by the shareholders of the
Corporation as the beneficial owners of record as listed at Schedule 4.2.6.
Such listed shareholders have good and marketable title thereto, free and
clear of all mortgages, liens, charges, security interests, adverse claims,
pledges, encumbrances, and demands whatsoever. This provision includes
voting trusts, shareholders' agreements, options, or other agreements of
any kind. The Seller represent that said listed shareholders have the
absolute right to transfer the Purchased Shares, and they shall be enjoyed
by the Purchaser free from any interruption or disturbance subject only to
the terms and conditions herein.
4.2.7 The Corporation has no subsidiaries and owns no shares in the capital
of any other corporation and has not agreed to acquire any subsidiary or
any shares of the capital of any other corporation or to acquire or lease
any other business operations.
4.2.8 No person, firm, or corporation has any agreement, option, or any
right or privilege (whether by law, pre-emptive, or contractual) for the
purchase, subscription, allotment, or issuance of either any of the
authorized stock in the capital of the Corporation or of any securities of
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the Corporation. This provision includes convertible securities, warrants,
and convertible obligations of any nature.
4.2.9 Except with respect to product warranties provided by the
Corporation in the ordinary course of business, the Corporation is not a
party to or bound to any person, firm, or corporation. This provision
includes any agreement of guarantee, indemnification, assumption,
endorsement, or any other like commitment of obligations or liabilities
(contingent or otherwise) or indebtedness of any person, firm, or
corporation.
4.2.10 There are not now, nor will there be on Closing, any material
claims or potential or contingent claims against the Corporation for
product liability in respect of goods manufactured and/or sold by the
Corporation.
4.2.11 The Corporation's Financial Statements have been prepared in
accordance with GAAP and present fairly to include:
4.2.11(A) all the assets, liabilities (whether accrued, absolute,
contingent, or otherwise), and the financial condition of the Corporation
as at the respective dates of the Corporation's Financial Statements; and
4.2.11(B) the sales, earnings, and results of the operations of the
Corporation during the periods covered by the Corporation's
Financial Statements.
4.2.12 The corporate records and minute books of the Corporation
contain complete and accurate minutes of all meetings of and copies of all
by-laws and resolutions passed by the directors and shareholders of the
Corporation since the incorporation of the Corporation. All such meetings
have been duly called and held. The share certificate book with register of
shareholders, register of transfers, register of directors, and other
corporate registers of the Corporation are complete and accurate in all
material respects.
4.2.13 The Business has been carried on in the ordinary course since
January 1999. Since then, there has been no change in the business
operations, affairs, or condition of the Corporation, financial or
otherwise. This provision includes changes arising as a result of any
legislative or regulatory change, revocation of any license or right to do
business,fire, explosion, accident, casualty, labor trouble, flood,
drought, riot, storm, condemnation, act of God, or otherwise. This provision
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excludes changes occurring in the ordinary course of business, which changes
have not materially aversely affected and will not materially aversely
affect the organization, business, properties, prospects, and financial
condition of the Corporation or the ability of the Corporation to carry on
Business.
4.2.14 The books and records, financial and otherwise, of the
Corporation fairly and correctly set out and disclose, in all material
respects, the financial position and result of operations of the Corporation
as at the date hereof. All material, financial transactions of the
Corporation are accurately recorded in such books and records.
4.2.15 Execution of this Agreement by the Seller and delivery of the
Agreement by them to the Purchaser and their performance hereunder has been
duly authorized. No further action is necessary on the part of the Seller
to make this agreement valid and binding in accordance with its terms upon
the Seller.
4.2.16 The execution and the consummation of this transaction for
purchase and sale contemplated by this Agreement will not result in a breach
of any term or provision of or constitute any default under the constituting
documents, by-laws, or resolutions of the Corporation. This provision
includes any indenture, agreement, instrument, license, permit, or
understanding to which the Corporation or any one or more of the Seller
is a party or by which any one or more of them is bound. Nor will the
consummation of this transaction accelerate any commitment or obligation of
the Corporation or result in the creation of any lien or encumbrance upon
any of the assets or property of the Corporation.
4.2.17 This agreement and the consummation of the transactions
contemplated hereby will not result in the violation of any law or regulation
or any applicable order of any court, arbitrator, or governmental authority
having jurisdiction over the Corporation, the Seller, or their respective
properties or businesses.
4.2.18 No consent, authorization, license, franchise, permit, approval,
or order of any court, governmental agency or body, of any lessor, or of any
person is required for the acquisition by the Purchaser of the Purchased
Shares, including completion of any of the other transactions contemplated
hereby. This provision also includes the continuance of any rights of the
Corporation pursuant to any agreement affecting its assets or the Business
following closing.
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4.2.19 The Corporation will not, prior to the Closing Date, hire any new
employees, terminate any employee, or increase the salary or remuneration of
any employee except in the normal course of business.
4.2.20 The aggregate amount of salaries, pension, bonuses, rents, or
other remuneration of any nature paid or payable by the Corporation, subsequent
to the execution of this Agreement and up to the Time of Closing, will be
made only at the regular rates heretofore paid.
4.2.21 No capital expenditures, except in the ordinary course of
business, will be made or authorized by the Corporation after the date hereof
and up to the Time of Closing without the prior written consent of the
Purchaser.
4.2.22 Annexed hereto as Schedule 4.2.22 is a complete list of all
outstanding bonds, debentures, mortgages, notes or other evidence of
indebtedness or other security instruments of the Corporation. None of
which are presently in default, and the Corporation is not under any
agreement to and shall not create or issue any bonds, debentures, mortgages,
notes, or other evidence of indebtedness or other security agreements from
the date hereof until Closing without the written consent of the Purchaser.
4.2.23 The Corporation is not a party to any lease or agreement in the
nature of a lease, whether as lessor or lessee, except those leases
described in Schedule 4.2.23 hereto. The schedule specifies the parties
to each of such leases, their dates of execution and expiry dates, any
options to renew, any consents required, the locations of any leased lands
and premises, and the rental payable thereunder. Each of such leases is in
good standing and in full force and effect without amendment thereto, and
the Corporation is not in breach of any of the covenants, conditions, or
agreements contained in each such lease. There are no consents required
from or on behalf of any persons to the transaction contemplated by this
Agreement.
4.2.24 The Corporation is not a party to any conditional sales contract,
hire-purchase agreement, or other title retention agreement.
4.2.25 The Corporation is not, and will not be at the Time of Closing, a
party to any agreement to acquire or to acquire any beneficial interest in
any real or immovable property.
4.2.26 The Corporation maintains appropriate policies of insurance,
given the nature of the Business, and such insurance coverage will be continued
in full force and effect to and including the Date of Closing. The
Corporation is not in default with respect to any of the provisions
contained in any such insurance policy, and it has not failed to give any
notice or present any claim under any such insurance policy in due and
timely fashion.
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Schedule 4.2.26 hereto lists all insurance policies of the Corporation,
specifying the insurance company, insurance agent, policy number, type of
coverage, and amount of coverage.
4.2.27 There are no actions, suits, or proceedings, including product
warranty claims, pending or threatened against or affecting the
Corporation, at law or in equity or before or by any federal, provincial,
municipal, or other governmental department, commission, board, bureau,
agency, or instrumentality, domestic or foreign. The Seller are not
aware of any existing ground on which any such action, suit, or proceeding
might be commenced with any reasonable likelihood of success.
4.2.28 Except for agreements, contracts, and commitments in the ordinary
course of business, the Corporation is not a party to any outstanding
agreement, contract, or commitment, whether written or oral.
4.2.29 All vacation pay, bonuses, commissions, and other emoluments are
accurately reflected and have been accrued in the books of account of the
Corporation.
4.2.30 The Corporation is and at Closing will be in substantial
compliance in all jurisdictions in which it employs persons, with legislation
governing hours of work, termination and severance pay, vacation pay and
similar employee rights, the Worker's Compensation Act, and all such similar
statutes.
4.2.31 The uses of the real properties owned or leased by the
Corporation referred to in this agreement or the schedules hereto are not in
material breach of any statute, by-law, ordinance, regulation, covenant,
restriction, or official plan.
4.2.32 The Corporation owns, possesses, and has a good and marketable
title to its undertaking, property, and assets, being free and clear of any and
all mortgages, liens, pledges, charges, security interests, encumbrances,
actions, claims, or demands of any nature whatsoever or howsoever arising
except as listed at Schedule 4.2.22; the purchase price is based on and
directly correlates to the net tangible worth (being assets less liabilities)
of the Corporation, which the Corporation represents to be approximately
$7,000,000 upon audit.
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4.2.33 The conduct of the Business does not infringe upon the patents,
trade marks, trade names, or copyrights (domestic or foreign) of any other
person, firm, or corporation.
4.2.34 Annexed hereto as Schedule 4.2.34 is a true and complete list
showing the name of each bank, trust company, or similar institution in
which the Corporation has accounts or safe deposit boxes and the names of
all persons authorized to draw thereon or to have access thereto.
4.2.35 The Corporation is conducting the Business in compliance with all
applicable laws, rules and regulations of each jurisdiction in which the
Business is carried on, is not in breach of any such laws, rules or
regulations, except for breaches which in the aggregate are immaterial.
Also the Corporation is duly licensed, registered, or qualified in each
jurisdiction in which it owns or leases property or carries on the Business.
To enable the business to be carried on as now conducted and its property
and assets to be owned, leased, and operated, all such licenses,
registrations and qualifications are valid and subsisting and in good
standing. None of the same will be canceled or amended by virtue of the
transaction for purchase and sale provided for herein.
4.2.36 All facilities and equipment owned and used by the Corporation in
connection with the Business are in good operating condition and are in a
state of good repair and maintenance.
4.2.37 There are not now any loans or other indebtedness outstanding
between the Corporation and the Seller or either any current or former
directors, officers, shareholders, or employees of the Corporation or any
Non Arms Length Persons. This provision is exclusive of normal salaries,
bonuses, fringe benefits, and the obligation to reimburse for expense
incurred on behalf of the Corporation in the normal course of business or
otherwise disclosed in the Corporation's Financial Statements.
4.2.38 To the best of the Seller' knowledge, there are no liabilities of
the Corporation of any kind whatsoever, whether or not accrued and whether
or not determined or determinable, in respect of which the Corporation or
the Purchaser may become liable before, on, or after the Closing. This
provision is exclusive of liabilities disclosed on, reflected in, or
provided for in the Financial Statements or incurred in the ordinary course
of business. This provision is also exclusive of those liabilities
attributable to the period from the Corporation's Financial Statements
to the actual time of Closing and are not materially adverse, individually
or in the aggregate, to the Business, operations, affairs or financial
condition of the Corporation.
4.2.39 There is not now nor will there be at the Time of Closing any
application pending for the issuance of articles of amendment to the
originating documents of the Corporation.
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4.2.40 The Corporation is not in default in the filing of any corporate
return or report that may be required under any federal, provincial and/or
municipal law or regulation.
4.2.41 The Corporation has duly and timely filed all tax returns
required and has paid all taxes and installments of taxes which are due and
payable. This provision includes all assessments, reassessments, and all
other taxes, governmental charges, penalties, interest, and fines due and
payable by it on or before the date hereof. The income tax liability of the
corporation has been not reviewed or determined by the IRS or the applicable
State for all fiscal years up to and including the fiscal year to date.
Adequate provision has been made for taxes payable for the current period
of which tax returns are not yet required to be filed. There are no
agreements, waivers, or other arrangements providing for an extension of
time with respect to the filing of any tax return by, or payment of any tax,
governmental charge, or deficiency against the Corporation in respect of
taxes, governmental charges, or assessments, asserted by such authority.
The Corporation has withheld from each payment made to any of its officers,
directors, employees, former directors, officers, and employees the amount
of all taxes, including but not limited to income tax, and other deductions
required to be withheld therefrom. The Corporation has paid the same to
the proper tax or other receiving officers within the time required under
the applicable tax legislation.
4.2.42 The Seller have no information or knowledge of any facts relating to
the Seller, the Business, the Corporation, or the Purchased Shares which, if
known to the Purchaser, might reasonably be expected to deter the Purchaser
from completing the transaction of purchase and sale herein contemplated.
4.2.43 The Corporation shall prepare and file all documents and forms
necessary to effect the filing and registration of the combined companies
(with Euro Cap Corporation as the parent holding corporation) so as to
complete and receive approval of an effective registration statement for
NASDAQ SmallCap listing as soon as reasonable (i.e., within 90 days) from
the date of closing.
/s/ All items requested have been examined, and approved. BSK /s/
ARTICLE 5.00 - REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
5.1 The Purchaser covenants, represents, and warrants as follows and
acknowledges that the Seller are relying upon such covenants,
representations, warranties, and covenants in connection with the sale
by the Seller of the Purchased Shares.
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5.2.1 Delivered at Closing, warranted to be true and correct to the best
knowledge of the Purchaser, and made a part hereof as Schedule 5.2.1 are the
following:
(A) unaudited balance sheet of the Purchaser to be acquired for the fiscal
6 months of 1999, with the related statement of operations and
unaudited statement of cash flow for the same years, and;
(B) unaudited balance sheet of the Purchaser to be acquired as of March 31,
1999 (the "Purchaser's Interim Balance Sheet") with the related unaudited
statement of income and unaudited statement of cash flow for the one month
ended June 30, 1999 (such balance sheets, statements of operations, and
other statements are referred to herein as the "Purchaser's Financial
Statements").
5.2.2 Purchaser has been duly incorporated and organized and is validly
subsisting and in good standing under the laws of New York.
5.2.3 Purchaser has the corporate power to own or lease its property and
carry on the Business. The Corporation is duly qualified as a corporation
to do business under the laws of New York, being the only jurisdiction in
which the nature of its business or the property owned or leased by it makes
such qualification necessary.
5.2.4 At time of Closing, the authorized capital of the Purchaser shall
consist of 40,000,000 shares with a par value of $0.000025.
5.2.5 At time of Closing, the authorized issued capital of the Purchaser
shall be500 shares of its common stock (and no more) and will have
been duly and validly allotted and issued and outstanding as fully paid and
non-assessable and beneficially owned by the Purchaser.
5.2.6 The Purchaser has no subsidiaries and owns no shares in the capital
of any other corporation and has not agreed to acquire any subsidiary or any
shares of the capital of any other corporation or to acquire or lease any
other business operations.
5.2.7 Except as listed at Schedule 5.2.7, no person, firm, or corporation
has any agreement, option, or any right or privilege (whether by law, pre-
emptive, or contractual) for the purchase, subscription, allotment, or
issuance of either any of the authorized stock in the capital or any
securities of the Purchaser. This provision includes convertible securities,
warrants, and convertible obligations of any nature.
5.2.8 The Purchaser is not a party to or bound to any person, firm, or
corporation. This provision includes any agreement of guarantee,
indemnification, assumption, endorsement, or any other like commitment of
obligations or liabilities (contingent or otherwise) or indebtedness of any
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person, firm, or corporation.
5.2.9 There are not now, nor will there be on Closing, any material claims or
potential or contingent claims against the Purchaser for product liability.
5.2.10 The Purchaser's Financial Statements have been prepared in accordance
with GAAP and present fairly to include:
(A) all the assets, liabilities (whether accrued, absolute, contingent, or
otherwise), and the financial condition of the Purchaser as at the respective
dates of the Purchaser's Financial Statements, and;
(B) the sales, earnings, and results of operations during the periods covered
by the Corporation's Financial Statements.
5.2.11 The corporate records and minute books of the Purchaser contain
complete and accurate minutes of all meetings of and copies of all by-laws
and resolutions passed by the directors and shareholders of the Purchaser
since the incorporation of the Purchaser. All such meetings have been duly
called and held. The share certificate book with register of shareholders,
register of transfers, register of directors, and other corporate registers
of the Purchaser are complete and accurate in all material respects.
5.2.12 The Purchaser does not have an active business or operations.
5.2.13 The Purchaser has no inventory.
5.2.14 The books and records, financial and otherwise, of the Purchaser
fairly and correctly set out and disclose, in all material respects, the
financial position and result of operations of the Purchaser as at the date
hereof. All material, financial transactions of the Purchaser are
accurately recorded in such books and records.
5.2.15 The execution and delivery of this Agreement by the Purchaser as well
as the performance by the Purchaser hereunder have been duly authorized.
No further action will be necessary on the part of the Purchaser to make
this Agreement valid and binding in accordance with its terms upon the
Purchaser.
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5.2.16 The execution and the consummation of this transaction for purchase
and sale contemplated by this Agreement will not result in a breach of any
term or provision of or constitute any default under the constituting
documents, by-laws, or resolutions of the Purchaser. This provision
includes any indenture, agreement, instrument, license, permit, or
understanding to which the Purchaser is a party or by which any one or more
of them is bound. Nor will the consummation of this transaction accelerate
any commitment or obligation of the Purchaser or result in the creation of
any lien or encumbrance upon any of the assets or property of the Purchaser.
5.2.17 This agreement and the consummation of the transactions contemplated
hereby will not result in the violation of any law or regulation or any
applicable order of any court, arbitrator, or governmental authority having
jurisdiction over the Purchaser.
5.2.18 No consent, authorization, license, franchise, permit, approval, or
order of any court, governmental agency or body, of any lessor, or of any
person is required for the acquisition by the Purchaser of the Purchased
Shares, including completion of any of the other transactions contemplated
hereby. This provision also includes the continuance of any rights of the
Purchaser pursuant to any agreement affecting its assets or the Business
following closing.
5.2.19 The Purchaser will not, prior to the Closing Date, hire any new
employees, terminate any employee, or increase the salary or remuneration
of any employee except in the normal course of business.
5.2.20 The aggregate amount of salaries, pension, bonuses, rents, or other
remuneration of any nature paid or payable by the Purchaser, subsequent to
the execution of this Agreement and up to the Time of Closing, will be made
only at the regular rates heretofore paid.
5.2.21 No capital expenditures, except in the ordinary course of business,
will be made or authorized by the Purchaser after the date hereof and up to
the Time of Closing without the prior written consent of the Seller.
5.2.22 Annexed hereto as Schedule 5.2.22 is a complete list of all
outstanding bonds, debentures, mortgages, notes or other evidence of
indebtedness or other security instruments of the Purchaser. None of which
are presently in default, and the Purchaser is not under any agreement to
and shall not create or issue any bonds, debentures, mortgages, notes, or
other evidence of indebtedness or other security agreements from the date
hereof until Closing without the written consent of the Seller.
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5.2.23 The Purchaser is not a party to any lease or agreement in the nature
of a lease, whether as lessor or lessee.
5.2.24 The Purchaser is not a party to any conditional sales contract, hire-
purchase agreement, or other title retention agreement.
5.2.25 The Purchaser is not, and will not be at the Time of Closing, a party
to any agreement to acquire or to acquire any beneficial interest in any
real or immovable property.
5.2.26 The Purchaser does not maintain any insurance policies.
5.2.27 There are no actions, suits, or proceedings, including product
warranty claims, pending or threatened against or affecting the Purchaser,
at law or in equity or before or by any federal, provincial, municipal, or
other governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign. The Purchaser is not aware of any
existing ground on which any such action, suit, or proceeding might be
commenced with any reasonable likelihood of success.
5.2.28 Except for agreements, contracts, and commitments in the ordinary
course of business, the Purchaser is not a party to any outstanding
agreement, contract, or commitment, whether written or oral, except for the
Agreement of Purchase and Sale for all the outstanding shares of Bon Hyang
Inc. said Agreement as executed on or before July 1, 1999.
5.2.29 All vacation pay, bonuses, commissions, and other emoluments are
accurately reflected and have been accrued in the books of account of the
Purchaser.
5.2.30 The Purchaser is and at Closing will be in substantial compliance in
all jurisdictions in which it employs persons, with legislation governing
hours of work, termination and severance pay, vacation pay and similar
employee rights, the Worker's Compensation Act, and all such similar
statutes.
5.2.31 The Purchaser does not lease any real properties.
5.2.32 The Purchaser owns, possesses, and has a good and marketable title
to its undertaking, property, and assets, being free and clear of any and
all mortgages, liens, pledges, charges, security interests, encumbrances,
actions, claims, or demands of any nature whatsoever or howsoever arising.
5.2.33 The conduct of business does not infringe upon the patents, trade
marks, trade names, or copyrights (domestic or foreign) of any other person,
firm, or corporation.
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5.2.34 Annexed hereto as Schedule 5.2.33 is a true and complete list showing
the name of each bank, trust company, or similar institution in which the
Purchaser has accounts or safe deposit boxes and the names of all persons
authorized to draw thereon or to have access thereto.
5.2.35 The Purchaser exists in compliance with all applicable laws, rules
and regulations of each jurisdiction in which the Business is carried on,
is not in breach of any such laws, rules or regulations, except for breaches
in the aggregate are immaterial. Also the Purchaser is duly licensed,
registered, or qualified in each jurisdiction in which it owns or leases
property or carries on the Business. To enable the business to be carried
on as now conducted and its property and assets to be owned, leased, and
operated, all such licenses, registrations and qualifications are valid and
subsisting and in good standing. None of the same will be canceled or
amended by virtue of the transaction for purchase and sale provided for
herein.
5.2.36 All facilities and equipment owned or used by the Purchaser are in
good operating condition and are in a state of good repair and maintenance.
5.2.37 Except as specified at Schedule 5.2.37, there are not any loans or
other indebtedness outstanding between the Purchaser and either the Seller
or either any current or former directors, officers, shareholders, or
employees of the Purchaser or any Non-Arms Length Persons. This provision
is exclusive of normal salaries, bonuses, fringe benefits, and the
obligation to reimburse for expense incurred on behalf of the Purchaser
in the normal course of business.
5.2.38 There are no liabilities of the Purchaser of any kind whatsoever,
whether or not accrued and whether or not determined or determinable, in
respect of which the Purchaser may become liable before, on, or after the
Closing. This provision is exclusive of liabilities disclosed on, reflected
in, or provided for in the Financial Statements or incurred in the ordinary
course of business. This provision is also exclusive of those liabilities
attributable to the period from the Purchaser's Financial Statements to the
actual time of Closing and are not materially adverse, individually or in
the aggregate, to the Business, operations, affairs or financial condition
of the Purchaser.
5.2.39 There is not now nor will there be at the time of Closing any
application pending for the issuance of articles of amendment to the
originating documents of the Purchaser.
5.2.40 The Purchaser is not in default in the filing of any corporate return
or report that may be required under any federal, provincial and/or
municipal law or regulation.
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5.2.41 The Purchaser has duly and timely filed or has pending all tax
returns required and has paid all taxes and installments of taxes which are
due and payable. This provision includes all assessments, reassessments,
and all other taxes, governmental charges, penalties, interest, and fines
due and payable by it on or before the date hereof. The income tax
liability of the Purchaser has been not reviewed or determined by the IRS
or the applicable State for all fiscal years up to and including the fiscal
year to date.
5.2.42 The Purchaser has no information or knowledge of any facts relating
to the Purchaser which if known to the Seller might reasonably be expected
to deter the Seller from completing the transaction and sale herein
contemplated.
/s/ all items supplied, examined and approved /s/BSK
ARTICLE 6.00 - COVENANTS OF THE SELLER
6.1 The Seller covenant and agree with the Purchaser that on or before
the Closing Date they will do or cause to be done the following.
6.2.1 Take all necessary steps and proceedings required for all of the
Purchased Shares to be duly and regularly transferred to the Purchaser.
6.2.2 Until the time of Closing, continue to operate the business of the
Corporation prudently and in such a manner as to preserve and maintain the
goodwill of the Corporation.
6.2.3 All necessary corporate actions and proceedings by the Purchaser
shall have been taken to permit the due execution and delivery of this
Agreement and the valid transfer of the Purchased Shares to the Purchaser
ARTICLE 7.00 - COVENANTS OF THE PURCHASER
7.1 The Purchaser covenants and agrees with the Seller that, on or before
the Closing Date, it will do or cause to be done the following.
7.2.1 All necessary corporate actions and proceedings by the Purchaser shall
have been taken to permit the due execution and delivery of this Agreement
and the valid transfer of the Exchange Shares to the Seller.
7.2.2 Provide the Seller, at least four (4) days prior to the Closing Date,
with a list of all persons in possession of all of the keys, credit cards,
books, records, files, and other properties of the Purchaser. The Purchaser
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shall deliver to the Seller custody of all such keys, credit cards, books,
records, files, and other property in the possession of the Purchaser.
7.2.3 Cause such directors and officers of the Purchaser as the Seller may
specify to resign in favor of nominees of the Seller, such resignations to
be effective as at the time of Closing.
7.2.4 Up to the Time of Closing, continue to operate the businesses of the
Purchaser prudently and in such a manner as to preserve and maintain the
goodwill of the Purchaser.
ARTICLE 8.00 - SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES
8.1 The covenants, representations, and warranties of the Seller contained
in this Agreement and contained in any document or certificate given
pursuant hereto shall survive the Closing herein. Notwithstanding Closing,
this survival is inclusive of any investigation made by or on behalf of the
Purchaser and shall continue in full force and effect for the benefit of the
Purchaser following the Closing Date.
8.2 The covenants, representations and warranties of the Purchaser contained
in this Agreement and contained in any document or certificate given
pursuant hereto shall survive the Closing herein. Notwithstanding Closing,
this survival is inclusive of any investigation made by or on behalf of the
Seller and shall continue in full force and effect for the benefit of the
Seller following the Closing Date.
ARTICLE 9.00 - CONDITIONS OF CLOSING
9.1 The sale and purchase of the Purchase Shares is subject to the following
terms and conditions, each of which is hereby declared to be for the
exclusive benefit of the Purchaser to be fulfilled and performed at or
prior to the time of Closing.
9.2 The covenants, representations, and warranties of the Seller contained
in this Agreement or any schedule hereto or certificate or other document
delivered or given to the Purchaser pursuant to this Agreement, including
without limitation the representations and warranties contained in Article
4.00, shall be true and correct on and as of the Closing Date with the same
force and effect as if they had been made as of the date hereof, each and
every one of which is hereby deemed to be a condition.
9.3 The Seller shall provide at the time of Closing a certificate, dated the
Closing Date, to the effect that the covenants, representations, and
warranties of the Seller contained herein are true and correct on and as
of the Closing Date, with the same force and effect as though made on and
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as of such date, provided that the acceptance of such certificate and the
closing of the transaction herein provided for shall not be a waiver of the
said covenants, representations, and warranties, which shall continue in
full force and effect as provided herein.
9.4 The Seller shall have complied with all covenants and agreements herein
agreed to be performed or caused to be performed by them.
9.5 At the Closing Date, there shall have been no material adverse change
in the affairs, assets, liabilities, financial condition, or business of the
Corporation from that shown on or reflected in the Financial Statements.
9.6 Any consent, authorization, licence, franchise, permit, approval, or
order of any court or governmental agency or regulatory body required for
the acquisition by the Purchaser of the Purchased Shares shall have been
obtained.
9.7 The Purchaser shall provide at the time of Closing a certificate, dated
the Closing Date, to the effect that the covenants, representations, and
warranties of the Purchaser contained herein are true and correct on and
as of the Closing Date. This certificate shall have the same force and
effect as though made on and as of such date provided that the acceptance
of such certificate and the closing of the transaction herein provided for
shall not be a waiver of the said covenants, representations, and warranties
which shall continue in full force and effect as provided herein.
9.8 The Purchaser shall have complied with all covenants and agreements
herein agreed to be performed or caused to be performed by it.
9.9 The parties shall execute and deliver an indemnification agreement to be
annexed hereto as Schedule 9.9.
9.10 The parties shall not close and complete this transaction unless both
Seller and Purchaser have signed a written acknowledgement that the
exchange of shares between them does not create a taxable event for
either party.
9.11 The parties hereby agree that the scheduled closing shall be
conditional upon shareholder approval by the shareholders of both companies.
ARTICLE 10.00-CLOSING ARRANGEMENTS
10.1 The closing is scheduled to take place on July 1, 1999 and at the
Time of Closing at such offices as are agreed to in writing among the
parties hereto at least 24 hours prior to the said Closing.
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10.2 At the Time of Closing and upon fulfillment of all the conditions set
out in this Agreement, which have not been waived in writing by the Seller
or the Purchaser, the Seller shall deliver to the Purchaser proper
certificates for all the Purchased Shares.
ARTICLE 11.00-NOTICE
11.1 Any notice or other document to be given by any party hereto to any
other party shall be in writing and may be given by personal delivery or
by registered mail. Any notice directed to any party shall be addressed
to it as follows:
To the Purchaser:
At the address to be given for service, in writing
To the Seller and the Corporation:
Bon Hyang Inc.,
71 Stony Hill Road
Second Floor
Bethel, Connecticut 06801
11.2 Any notice or other document aforesaid, if delivered, shall be deemed
to have been given or made on the date on which it was delivered or, if
mailed, shall be deemed to have been given and received on the fourth (4th)
business day following the date on which it was mailed. Provided that if
there exists at the time of mailing of a notice hereunder or within four (4)
business days thereafter a labor dispute or other event which would affect
the normal delivery of the notice by an express or postal service, then such
notice will only be effective if actually delivered.
11.3 The parties hereto may change any address for notices hereunder, from
time to time, by notice given in accordance with the foregoing.
ARTICLE 12.00 - GENERAL
12.1 Time shall be of the essence of this Agreement.
12.2 This Agreement may be executed in one or more counterparts, each of
which when so executed shall constitute an original, and all of which
together shall constitute one and the same agreement.
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12.3 This Agreement, including the schedules hereto, constitutes the entire
agreement between the parties hereto. There are not and shall not be any
verbal statements, representations, warranties, undertakings, or agreements
between the parties, and this Agreement may not be amended or modified in
any respect except by written instrument signed by the parties hereto.
12.4 This Agreement shall be construed and enforced in accordance with and
the rights of the parties shall be governed by the laws of the State of
New York. Any and all disputes arising under this Agreement, whether as to
interpretation, performance or otherwise, shall be subject to the exclusive
jurisdiction of the Courts of the State of New York. Each of the parties
hereto irrevocably submit to the jurisdiction of the Courts of the State of
New York.
12.5 The headings used herein are inserted for convenience of reference
only and shall not affect the construction of or interpretation of this
Agreement.
12.6 Except as otherwise set out in this Agreement, each of the parties
hereto shall pay all of its own costs and expenses of the transaction of
purchase and sale, including all fees and expenses of its accountants,
counsel, and officers.
12.7 In the event that any Article or section of this Agreement is held to
be invalid or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect the remainder of the
provisions hereof. Any such part shall be fully severable, and this
Agreement shall be construed and enforced as if such invalid or
unenforceable part had not been inserted herein. The parties hereby agree
that they would have signed this Agreement without such invalid or
unenforceable part included herein.
12.8 In this Agreement, words importing the singular number only include
the plural and vice versa; words importing the masculine gender include the
feminine and vice versa.
12.9 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, legal personal representatives,
successors, and permitted assigns.
12.10 Where the date either for the expiration of any time period or for
the closing of anything hereunder expires or falls upon a day which is not a
Business Day, the time so limited extends to and the thing shall be done on
the day next following that is a Business Day.
12.11 The parties hereto agree that no disclosure or public announcement
with respect to this Agreement, or any of the transactions contemplated by
this Agreement, shall be made by any party hereto without the prior written
consent of the other parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
SIGNED, SEALED AND DELIVERED )
in the presence of )
) /s/Baik Suk Kim/s/
) SELLER
)
)
)
)
)
) /s/Baik Suk Kim/s/
PURCHASER
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