Exhibit 10.5
STOCK PURCHASE AGREEMENT
by and among
Ningbo Anxin International Trade Co. Ltd.
as Acquiror
Ningbo Xinyi Company, Limited
as Acquiree
and
Taiyuan Feng
the sole Shareholder of
Ningbo Xinyi Company, Limited
June 1, 2005
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into this
1st day of June 2005 by and among Ningbo Anxin International Trade Co. Ltd., a
Chinese Limited Liability Company (hereinafter referred to as "Anxin"), Ningbo
Xinyi Company, Limited (hereinafter referred to as the "Company" or "Xinyi"), a
Chinese Limited Liability Company and Taiyuan Feng, the sole shareholder of the
Company (hereinafter referred to as the "Shareholder").
RECITALS:
A. The Shareholder owns 100% of the issued and outstanding shares
of the capital stock of the Company.
B. Anxin is willing to acquire 100% of the issued and outstanding
capital stock of the Company, making the Company a subsidiary
of Anxin, and the Shareholder desire to exchange 100% of his
shares of the Company's capital stock for account receivables
in the amount of $ $2,601,906 that Anxin has.
C. The Company is doing in Ningbo, China and owns land, building
and equipment with a market value of $3,797,778 appraised by a
third party.
D. It is the intention of the parties hereto that: (i) Anxin
shall acquire 100% of the issued and outstanding capital stock
of the Company in exchange solely for account receivables in
the amount of $2,601,906 that Anxin has set forth below (the
"Exchange")
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE OF SHARES
1.1 Exchange of Shares. Anxin and the Shareholder hereby agree that the
Shareholders shall, on the Closing Date on June 1, 2005, exchange 100% of his
issued and outstanding shares of the capital stock of the Company (the "Xinyi
Shares") for account receivables in the amount of $$2,601,906 that Anxin has.
1.2 Delivery of Xinyi Shares. On the Closing Date, the Shareholder will
deliver to Anxin the certificates representing 100% of the Xinyi Shares, duly
endorsed (or with executed stock powers) so as to make Anxin the 100% owner
thereof. Anxin shall deliver to the account receivables in total of $2,601,906
to the shareholder.
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SHAREHOLDER
The Company and the Shareholder hereby represent and warrant as
follows:
2.1 Organization and Good Standing; Ownership of Shares. The Company
and its subsidiary are corporations duly organized, validly existing and in good
standing under the laws of China, and is entitled to own or lease its properties
and to carry on its business as and in the places where such properties are now
owned, leased or operated and such business is now conducted. The Company is
duly licensed or qualified and in good standing as a Chinese company where the
character of the properties owned by it or the nature of the business transacted
by it make such licenses or qualifications necessary. There are no outstanding
subscriptions, rights, options, warrants or other agreements obligating either
the Company or the Shareholder to issue, sell or transfer any stock or other
securities of the Company.
2.2 Ownership of Capital Stock. The Shareholder is the beneficial owner
of record and beneficially of all of the shares of capital stock of the Company,
all of which shares are free and clear of all rights, claims, liens and
encumbrances, and have not been sold, pledged, assigned or otherwise transferred
except pursuant to this Agreement.
2.3 Financial Statements, Books and Records. There has been previously
delivered to Anxin the unaudited balance sheet of the Company as of April 30,
2005 (the "Balance Sheet"). The Balance Sheet is true and accurate and fairly
represents the financial position of the Company as at such date, and has been
prepared in accordance with generally accepted accounting principles
consistently applied.
2.4 No Material Adverse Changes. Since the date of the Balance Sheet
there has not been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of the Company;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of the Company, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of the
Company's capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by the Company of any properties or
assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
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2.5 Taxes. The Company has prepared and filed all appropriate tax
returns for all periods prior to and through the date hereof for which any such
returns have been required to be filed by it and has paid all taxes shown to be
due by said returns or on any assessments received by it or has made adequate
provision for the payment thereof.
2.6 Compliance with Laws. The Company has complied with all federal,
state, county and local laws, ordinances, regulations, inspections, orders,
judgments, injunctions, awards or decrees applicable to it or its business
which, if not complied with, would materially and adversely affect the business
of the Company.
2.7 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of the Company;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which the Company is a party or by or to which it or any of its assets or
properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, the Company, or upon the properties or business of the Company; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a materially adverse effect on the business or operations of the Company.
2.8 Actions and Proceedings. There is no outstanding order,
judgment, injunction, award or decree of any court, governmental or regulatory
body or arbitration tribunal against or involving the Company.
2.9 Brokers or Finders. No broker's or finder's fee will be payable by
the Company in connection with the transactions contemplated by this Agreement,
nor will any such fee be incurred as a result of any actions by the Company or
the Shareholders.
2.10 Real Estate. The Company neither owns real property nor is a
party to any leasehold agreement.
2.11 Tangible Assets. The Company has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by the Company, any related capitalized items or
other tangible property material to the business of the Company (the "Tangible
Assets"). The Company holds all rights, title and interest in all the Tangible
Assets owned by it on the Balance Sheet or acquired by it after the date of the
Balance Sheet, free and clear of all liens, pledges, mortgages, security
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interests, conditional sales contracts or any other encumbrances. All of the
Tangible Assets are in good operating condition and repair taking into account
the age of the tangible assets and subject to fair wear and tear, and are usable
in the ordinary course of business of the Company and conform to all applicable
laws, ordinances and governmental orders, rules and regulations relating to
their construction and operation.
2.12 Liabilities. The Company does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, the Company will not have any
Liabilities, other than Liabilities fully and adequately reflected on the
Balance Sheet, except for Liabilities incurred in the ordinary course of
business.
2.13 Operations of the Company. From the date of the Balance Sheet on
April 30, 2005 and through the Closing Date on June 1, 2005 hereof the Company
has not and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of the Company except in the
ordinary course of business; or
(vi) materially increased the annual rate of compensation
of any executive employee of the Company;
(vii) increased, terminated, amended or otherwise modified any
plan for the benefit of employees of the Company;
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(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
2.14 Capitalization. The company has $1.5 million in registered
capital with one shareholder, Taiyuan Feng
2.15 Full Disclosure. No representation or warranty by the Company or
the Shareholder in this Agreement or in any document or schedule to be delivered
by them pursuant hereto, and no written statement, certificate or instrument
furnished or to be furnished to Anxin pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any fact necessary to make any statement herein or therein not materially
misleading or necessary to a complete and correct presentation of all material
aspects of the businesses of the Company.
2.16 Representations and Warranties on Closing Date. The
representations and warranties contained in this Section 2 shall be true and
complete on the Closing Date on June 1, 2005 with the same force and effect as
though such representations and warranties had been made on and as of the
Closing Date.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF ANXIN
Anxin hereby represents and warrants to the Company and the
Shareholders as follows:
3.1 Organization and Good Standing. Anxin is a corporation duly
organized, validly existing and in good standing under the laws of China and is
entitled to own or lease its properties and to carry on its business as and in
the places where such properties are now owned,
3.2 Financial Statements; Books and Records. There has been previously
delivered to the Company, the unaudited balance sheet of Anxin as March 31, 2005
(the "Balance Sheet") and the related statements of operations for the periods
then ended (the "Financial Statements"). The Financial Statements are true and
accurate and fairly represent the financial position of the Company as at such
dates and the results of its operations for the periods then ended, and have
been prepared in accordance with generally accepted accounting principles
consistently applied.
3.4 No Material Adverse Changes. Since the date of the Anxin
Balance Sheet on March 31, 2005, there has not been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of Anxin;
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(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of Anxin, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of Anxin
capital stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by Anxin of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
3.5 Taxes. Anxin has prepared and filed all appropriate tax returns of
every kind and category (including, without limitation, income taxes, estimated
taxes, excise taxes, sales taxes, inventory taxes, use taxes, gross receipt
taxes, franchise taxes and property taxes) for all periods prior to and through
the date hereof for which any such returns have been required to be filed by it
or the failure to make such filings and resulting liability would not be
material relative to the results of operations of Anxin. Anxin has paid all
taxes shown to be due by the said returns or on any assessments received by it
or has made adequate provision for the payment thereof.
3.6 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of the Articles of Incorporation or
By-Laws of Anxin;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which Anxin is a party or by or to which it or any of its assets or properties
may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, Anxin or upon the properties or business of Anxin; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a material adverse effect on the business or operations of Anxin.
3.8 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving Anxin.
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3.9 Brokers or Finders. No broker's or finder's fee will be payable by
Anxin in connection with the transactions contemplated by this Agreement, nor
will any such fee be incurred as a result of any actions by Anxin.
3.10 Assets The Company has full title and interest in all machinery,
equipment, furniture, leasehold improvements, fixtures, vehicles, structures,
owned or leased by the Company, any related capitalized items or other tangible
property material to the business of the Company (the "Tangible Assets"). The
Company holds all rights, title and interest in all the Tangible Assets owned by
it on the Balance Sheet or acquired by it after the date of the Balance Sheet,
free and clear of all liens, pledges, mortgages, security interests, conditional
sales contracts or any other encumbrances. All of the Tangible Assets are in
good operating condition and repair taking into account the age of the tangible
assets and subject to fair wear and tear, and are usable in the ordinary course
of business of the Company and conform to all applicable laws, ordinances and
governmental orders, rules and regulations relating to their construction and
operation.
3.11 Liabilities. Anxin does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Balance Sheet. As of the Closing Date, Anxin will not have any Liabilities,
other than Liabilities fully and adequately reflected on the ANXIN Balance Sheet
or ANXIN balance sheet dated March 31, 2005, except for Liabilities incurred in
the ordinary course of business.
3.12 Operations of ANXIN. Except as set forth on Schedule 3.11
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of ANXIN except in the ordinary
course of business; or
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(vi) materially increased the annual level of compensation
of any executive employee of ANXIN;
(vii) increased, terminated amended or otherwise modified any
plan for the benefit of employees of ANXIN;
(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
3.13 Authority to Execute and Perform Agreements. ANXIN has the full
legal right and power and all authority and approval required to enter into,
execute and deliver this Agreement and to perform fully their obligations
hereunder. This Agreement has been duly executed and delivered and is the valid
and binding obligation of ANXIN, enforceable in accordance with its terms,
except as may be limited by bankruptcy, moratorium, insolvency or other similar
laws generally affecting the enforcement of creditors' rights. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and the performance by ANXIN of this Agreement, in accordance with its
respective terms and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body, the Stockholders of ANXIN, or the approval or consent of any
other person;
(ii) conflict with or result in any breach or violation of any
of the terms and conditions of, or constitute (or with any notice or lapse of
time or both would constitute) a default under, any order, judgment or decree
applicable to ANXIN, or any instrument, contract or other agreement to which
ANXIN is a party or by or to which ANXIN is bound or subject; or
(iii) result in the creation of any lien or other encumbrance
on the assets or properties of ANXIN.
3.14 Full Disclosure. No representation or warranty by ANXIN
in this Agreement or in any document or schedule to be delivered by it pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished to the Company or the Shareholders pursuant hereto or in connection
with the execution or performance of this Agreement contains or will contain any
untrue statement of a material fact or omits or will omit to state any fact
necessary to make any statement herein or therein not materially misleading or
necessary to a complete and correct presentation of all material aspects of the
business of ANXIN.
3.15 Representations and Warranties on Closing Date. The
representations and warranties contained in this Section 3 shall be true and
complete on the Closing Date with the same force and effect as through such
representations and warranties had been made on and as of the Closing Date on
June 1, 2005.
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SECTION 4. COVENANTS OF COMPANY AND SHAREHOLDER
The Company and the Shareholders covenant to ANXIN as follows:
4.1 Conduct of Business. From the date hereof through the Closing Date,
the Shareholder and The Company shall conduct its business in the ordinary
course.
4.2 Preservation of Business. From the date April 30, 2005 through the
Closing Date, the Shareholder and the Company shall use its best efforts to
preserve its business organization intact, keep available the services of its
present employees, consultants and agents, maintain its present suppliers and
customers and preserve its goodwill.
4.3 Litigation. The Company shall promptly notify ANXIN of any
lawsuits, claims, proceedings or investigations which after the date hereof are
threatened or commenced against the Company or against any officer, director,
employee, consultant, agent, shareholder or other representative with respect to
the affairs of the Company.
4.4 Continued Effectiveness of Representations and Warranties. From the
date hereof through the Closing Date, the Shareholder and the Company shall
conduct its business in such a manner so that the representations and warranties
contained in Section 2 shall continue to be true and correct on and as of the
Closing Date and as if made on and as of the Closing Date, and shall:
(i) promptly give notice to ANXIN of any event, condition or
circumstance occurring from the date hereof through the Closing Date which would
render any of the representations or warranties materially untrue, incomplete,
insufficient or constitute a violation or breach of this Agreement; and
(ii) supplement the information contained herein in order that
the information contained herein is kept current, complete and accurate in all
material respects.
SECTION 5. COVENANTS OF ANXIN
ANXIN covenants to the Company and the Shareholder as follows:
5.1 Conduct of Business. From the date hereof through the Closing Date,
ANXIN shall conduct its business in the ordinary course and, without the prior
written consent of the Company, shall ensure that ANXIN does not undertake any
of the actions specified in Section 3.12 hereof.
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5.2 Preservation of Business. From the date hereof through the Closing
Date, ANXIN shall preserve its business organization intact and use its best
efforts to preserve ANXIN goodwill.
5.3 Litigation. ANXIN shall promptly notify the Company of any
lawsuits, claims, proceedings or investigations that after the date hereof are
threatened or commenced against ANXIN or against any officer, director,
employee, consultant, agent, or stockholder with respect to the affairs of
ANXIN.
5.4 Continued Effectiveness of Representations and Warranties. From the
date hereof through the Closing Date, ANXIN shall conduct its business in such a
manner so that the representations and warranties contained in Section 3 shall
continue to be true and correct on and as of the Closing Date and as if made on
and as of the Closing Date, and shall:
(i) promptly give notice to the Company of any event,
condition or circumstance occurring from the date hereof through the Closing
Date which would render any of the representations or warranties materially
untrue, incomplete, insufficient or constitute a violation or breach of this
Agreement; and
(ii) supplement the information contained herein in order that
the information contained herein is kept current, complete and accurate in all
material respects.
5.5 No Other Negotiations. From the date hereof until the earlier of
the termination of this Agreement or consummation of this Agreement, ANXIN will
not permit and will not authorize any officer or director of ANXIN or any other
person on its behalf to, directly or indirectly, solicit, encourage, negotiate
or accept any offer from any party concerning the possible disposition of all or
any substantial portion of the capital stock by merger, sale or any other means
or any other transaction that would involve a change in control of ANXIN, or any
transaction in which ANXIN contemplates issuing equity or debt securities.
SECTION 6. COVENANTS
6.1 Corporate Examinations and Investigations. Prior to the Closing
Date, the parties acknowledge that they have been entitled, through their
employees and representatives, to make such investigation of the assets,
properties, business and operations, books, records and financial condition of
the other as they each may reasonably require. No investigation by a party
hereto shall, however, diminish or waive in any way any of the representations,
warranties, covenants or agreements of the other party under this Agreement.
6.2 Expenses. Each party hereto agrees to pay its own costs and
expenses incurred in negotiating this Agreement and consummating the
transactions described herein.
6.3 Further Assurances. The parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such party shall use its best efforts to fulfill or obtain the
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fulfillment of the conditions to the Closing on Jun 30, 2004, including, without
limitation, the execution and delivery of any documents or other papers, the
execution and delivery of which are necessary or appropriate to the Closing.
6.4 Confidentiality. In the event the transactions contemplated by this
Agreement are not consummated, each of the parties hereto agree to keep
confidential any information disclosed to each other in connection therewith for
a period of one (1) year from the date hereof; provided, however, such
obligation shall not apply to information which:
(i) at the time of disclosure was public knowledge;
(ii) after the time of disclosure becomes public knowledge (except due to the
action of the receiving party);
(iii) the receiving party had within its possession at the time of disclosure.
(iv) the disclosure of which is required by law, the SEC or other competent
authority;
(v) which at the time of disclosure by one party written consents have been
obtained from the other parties.
SECTION 7. CONDITIONS PRECEDENT TO THE OBLIGATION OF ANXIN TO CLOSE
The obligation of ANXIN to enter into and complete the Agreement is
subject, at the option of ANXIN, to the fulfillment on or prior to the Closing
Date of the following conditions, any one or more of which may be waived by
ANXIN in writing.
7.1 Representations and Covenants. The representations and warranties
of the Company and the Shareholders contained in this Agreement shall be true in
all material respects on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date. The Company and the
Shareholders shall have performed and complied in all material respects with all
covenants and agreements required by this Agreement to be performed or complied
with by the Company and the Shareholders on or prior to the Closing Date. The
Company and the Shareholders shall have delivered to ANXIN, if requested, a
certificate, dated the Closing Date, to the foregoing effect.
7.2 Governmental Permits and Approvals; Corporate Resolutions. Any and
all permits and approvals from any governmental or regulatory body required for
the lawful consummation of the Closing shall have been obtained. The Board of
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Directors of the Company shall have approved the transactions contemplated by
this Agreement and the Company shall have delivered to ANXIN, if requested by
ANXIN, resolutions by its Board of Directors, certified by the Secretary of the
Company, authorizing the transactions contemplated by this Agreement.
7.3 Satisfactory Business Review. ANXIN shall have satisfied itself,
after ANXIN and its representatives have completed the review of the business of
the Company contemplated by this Agreement, that none of the information
revealed thereby or in the Balance Sheet has resulted in, or in the reasonable
opinion of ANXIN may result in, a material adverse change in the assets,
properties, business, operations or condition (financial or otherwise) of the
Company.
7.4 Certificate of Good Standing. ANXIN shall receive a certificate of
good standing dated 10 business days after the Closing Date to the effect that
the Company is in good standing under the laws of its jurisdictions of
incorporation.
7.5 Stock Certificates: At the Closing, the Shareholder will deliver
the certificates representing the Xinyi Shares, duly endorsed (or with executed
stock powers) so as to make ANXIN the 100% owner thereof within 10 business
days.
7.6 Other Documents. The Company and the Shareholder shall have
delivered such other documents, instruments and certificates, if any, as are
required to be delivered pursuant to the provisions of this Agreement or which
may be reasonably requested in furtherance of the provisions of this Agreement.
SECTION 8. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY AND SHAREHOLDER
TO CLOSE
The obligation of the Company and the Shareholders to enter into and
complete the agreement is subject, at the option of the Company and the
Shareholders, to the fulfillment on or prior to the Closing Date of the
following conditions, any one or more of which may be waived in writing by the
Company.
8.1 Representations and Covenants. The representations and warranties
of ANXIN contained in this Agreement shall be true in all material respects on
the Closing Date with the same force and effect as though made on and as of the
Closing Date. ANXIN shall have performed and complied with all covenants and
agreements required by the Agreement to be performed or complied with by ANXIN
on or prior to the Closing Date. ANXIN will deliver to the Company and the
Shareholders, if requested, a certificate, dated the Closing Date and signed by
an executive officer of ANXIN, to the foregoing effect within 10 business days
after the closing.
8.2 Governmental Permits and Approvals; Corporate Resolutions. Any
and all permits and approvals from any governmental or regulatory body required
for the lawful consummation of the Agreement shall have been obtained. The Board
of Directors of ANXIN shall have approved the transactions contemplated by this
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Agreement, and ANXIN will deliver to the Company and the Shareholder, if
requested, resolutions by their Board of Directors certified by the Secretary of
ANXIN authorizing the transactions contemplated by this Agreement within 10
business days after the closing.
8.3 Third Party Consents. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with ANXIN which
may be required in connection with the performance by ANXIN of their obligations
under such contracts or other agreements after the Closing shall have been
obtained.
8.4 Satisfactory Business Review. The Company and the Shareholders
shall have satisfied themselves, after the Company, the Shareholders and their
representatives and advisers have completed the review of business of ANXIN and
the information provided hereby or in connection herewith, or following any
discussions with management or representatives of ANXIN that none of the
information revealed thereby has resulted in or in the reasonable opinion of the
Company may result in a material adverse change in the assets, properties,
business, operations or condition (financial or otherwise) of ANXIN.
8.5 Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by any governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may in the
reasonable opinion of the Company and the Shareholder, have a materially adverse
effect on the assets, properties, business, operations or condition (financial
or otherwise) of ANXIN.
SECTION 9. INDEMNIFICATION
9.1 Obligation of ANXIN to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 9, ANXIN hereby
agrees to indemnify, defend and hold harmless the Company and the Shareholder
from and against any losses, liabilities, damages, deficiencies, costs or
expenses (including interest, penalties and reasonable attorneys' fees and
disbursements) (a "Loss") based upon, arising out of or otherwise due to any
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of ANXIN contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement.
9.2 Obligation of the Company and the Shareholder to Indemnify. Subject to the
limitations on the survival of representations and warranties contained in
Section 10, the Company and the Shareholder agree to indemnify, defend and hold
harmless ANXIN from and against any Loss, based upon, arising out of or
otherwise due to any inaccuracy in or any breach of any representation,
warranty, covenant or agreement made by any of them and contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
SECTION 10. THE CLOSING
The Closing shall take place not later than June 1, 2005. At the
Closing, the parties shall provide each other with such documents as may be
necessary or appropriate in order to consummate the transactions contemplated
hereby including evidence of due authorization of the Agreement and the
transactions contemplated hereby.
SECTION 11. MISCELLANEOUS
11.1 Waivers. The waiver of a breach of this Agreement or the failure
of any party hereto to exercise any right under this Agreement shall in no event
constitute waiver as to any future breach whether similar or dissimilar in
nature or as to the exercise of any further right under this Agreement.
11.2 Amendment. This Agreement may be amended or modified only by an
instrument of equal formality signed by the parties or the duly authorized
representatives of the respective parties.
11.3 Assignment. This Agreement is not assignable except by
operation of law.
11.4 Notices. Until otherwise specified in writing, the mailing
addresses of both parties of this Agreement shall be as follows:
ANXIN
Bldg 14
Suite A09, International Trading Center,
29 Dongdu Road
Ningbo, China 315000
86-574-56169308
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The Shareholder:
Jiangbei Investment Pioneering Park
Ningbo, China 31512
Xinyi
Jiangbei Investment Pioneering Park
Ningbo, China 31512
Any notice or statement given under this Agreement shall be deemed to have been
given if sent by registered mail addressed to the other party at the address
indicated above or at such other address that shall have been furnished in
writing to the addressor.
11.5 Governing Law. This Agreement shall be construed, and the legal
relations be the parties determined, in accordance with the laws of the State of
Nevada, thereby precluding any choice of law rules which may direct the
applicable of the laws of any other jurisdiction.
11.6 Publicity. No publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by either
party hereto at any time from the signing hereof without advance approval in
writing of the form and substance thereof by the other party except as required
to stay in compliance with the ANXIN reporting obligations under the Securities
Exchange Act of 1934.
11.7 Entire Agreement. This Agreement and the collateral agreements
executed in connection with the consummation of the transactions contemplated
herein contain the entire agreement among the parties with respect to the
purchase and issuance of the Genesis' Shares and the ANXIN Shares and related
transactions, and supersede all prior agreements, written or oral, with respect
thereto.
11.8 Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
11.9 Severability of Provisions. The invalidity or unenforceability of
any term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
11.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
Anxin
By:
Name: David Wu
Its: CEO and Chairman
Xinyi
By:
Name: Taiyuan Feng
Its: CEO and Chairman
Shareholder
Taiyuan Feng
6217-0100 324437.1