STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (hereinafter referred to as this
"Agreement"), is entered into as of this 15th day of January, 2003, by and
among Lazarus Industries, Inc., a Utah corporation (hereinafter referred to as
"Lazarus"); American Dairy Holdings, Inc., a Delaware corporation,
(hereinafter referred to as "American"); and the persons listed on Schedule
1(a) to this Agreement, being all of the shareholders of American (hereinafter
referred to as the "Shareholders"), upon the following premises:
PREMISES
▇. ▇▇▇▇▇▇▇ is a non-operating public company which has been in
existence since 1985.
B. The Shareholders own all of the issued and outstanding shares
of common stock of American (the "American Stock"). American owns 100% of the
registered capital and members' equity of Heilongjiang Feihe Dairy Co.,
Limited, organized under the laws of the People's Republic of China ("Feihe
Dairy"). Feihe Dairy owns 100% of the registered capital and members' equity
of Heilongjiang Sanhao Dairy Co., Limited, organized under the laws of the
People's Republic of China ("Sanhao Dairy," and, together with Feihe Dairy,
the "Feihe Dairy Group").
C. The Shareholders have agreed to sell to Lazarus and Lazarus has
agreed to purchase the American Stock from the Shareholders in exchange for
shares representing ninety six percent (96%) of the total outstanding common
shares of Lazarus, including presently outstanding warrants and stock options
of Lazarus, pursuant to the terms and conditions set forth in this Agreement.
D. American will become a wholly-owned subsidiary of Lazarus.
AGREEMENT
NOW THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived herefrom, it is hereby agreed as
follows:
ARTICLE I
PLAN OF EXCHANGE
1.1 The Exchange. At the Closing (as defined in Section 1.3
below), each of the Shareholders hereby agrees to assign, transfer, and
deliver to Lazarus, free and clear of all liens, pledges, encumbrances,
charges, restrictions, or known claims of any kind, nature, or description,
the certificates evidencing the American Stock duly endorsed for transfer to
Lazarus or accompanied by stock powers executed in blank by the Shareholders,
and Lazarus agrees to acquire such shares on such date by issuing and
delivering in exchange therefore solely shares of Lazarus restricted common
stock, in the amount of 9,650,000 shares (subject to adjustment for
fractionalized shares as set forth below) of its common voting stock, par
value $0.001 (the "Lazarus Stock") to be issued to the Shareholders following
a one-for-nineteen (1 for 19) reverse stock split of the presently issued and
outstanding common stock of Lazarus, including its outstanding warrants and
stock options, in full satisfaction of any right or interest which each
Shareholder held in the American Stock. The Lazarus Stock will be issued to
the Shareholders with a restrictive legend as set forth on Schedule 1(a) and
Schedule 1(b) attached hereto. Any fractional shares that will result due to
such pro rata distribution will be rounded up to the next highest whole
number. As a result of the exchange of the American Stock in exchange for the
Lazarus Stock, American will become a wholly-owned subsidiary of Lazarus.
1.2 Anti-Dilution. For all relevant purposes of this Agreement,
the 9,650,000 shares of Lazarus Stock to be issued and delivered pursuant to
this Agreement, take into account the 19-for-1 reverse split provided for in
Section 1.1 and no further change or adjustment shall be made in connection
therewith. The number of shares of Lazarus Stock and all shares of stock
covered by existing American options shall be appropriately adjusted to take
into account any other stock split, stock dividend, reverse stock split,
recapitalization, or similar change in the Lazarus common stock, par value
$0.001, which may occur between the date of the execution of this Agreement
and the date of delivery of such shares.
1.3 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date"), within the five-day period commencing with
the last to occur of the following: the Lazarus shareholders' meeting
pursuant to Section 5.1, or February 15, 2003; provided however, that the
Closing shall in no event be after February 28, 2003, unless extended in
writing by the parties.
1.4 Closing Events. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any and all certificates, opinions, financial
statements, schedules, agreements, resolutions, rulings, or other instruments
required by this Agreement to be so delivered at or prior to the Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the transactions contemplated hereby If agreed to by the parties, the Closing
may take place through the exchange of documents by fax and/or express
courier.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF AMERICAN
As an inducement to, and to obtain the reliance of, Lazarus, American
represents and warrants as follows:
2.1 Organization. American is a corporation duly organized,
validly existing, and in good standing under the laws of the state of
Delaware. American has the corporate power and is duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances,
and orders of public authorities to own all of its properties and assets and
to carry on its business in all material respects as it is now being
conducted, including qualification to do business as a foreign corporation in
the states in which the character and location of the assets owned by it or
the nature of the business transacted by it requires qualification. Included
in the American Schedules (as hereinafter defined) are complete and correct
copies of the articles of incorporation, as amended, and bylaws of American as
in effect on the date hereof. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement in accordance with the terms hereof will not, violate any provision
of American's articles of incorporation or bylaws. American has taken all
action required by laws, its articles of incorporation, its bylaws, or
otherwise to authorize the execution and delivery of this Agreement. American
has full power, authority, and legal right and has taken all action required
by law, its certificate of incorporation, bylaws, and otherwise to consummate
the transactions herein contemplated.
2.2 Capitalization. The authorized capitalization of American
consists of 50,000,000 shares of common stock, $0.001 par value per share, of
which 10,000 shares are currently issued and outstanding. All issued and
outstanding shares are legally issued, fully paid, and non-assessable and not
issued in violation of the pre-emptive or other rights of any person.
American has not granted options, as set forth in the American Schedules.
2.3 Subsidiaries and Predecessor Corporations. American owns 100%
of all of the registered capital and members' equity of Feihe Dairy, and Feihe
Dairy ▇▇▇▇▇ 100% of the registered capital and members' equity of Sanhao
Dairy, both of, which are engaged in the dairy industry. American does not
have any other subsidiaries and does not own, beneficially or of record, any
shares of any other corporation. All of the operations of American are
through Feihe Dairy Group, and any references in this Agreement to American,
unless otherwise noted or apparent from the context, include Feihe Dairy
Group.
2.4 Financial Statements.
(a) On or before January 15, 2003, American will provide
to Lazarus the audited balance sheets of Feihe Dairy Group, at December 31,
2001 and 2000, and the related audited consolidated statements of operations,
stockholders' equity and cash flows of Feihe Dairy for the years ended
December 31, 2001 and 2000, together with notes to such statements and the
opinion of Henny Wee & Co., independent certified public accountants, with
respect thereto, and the unaudited consolidated balance sheet as of September
30, 2002 (the "most recent American balance sheet"), statement of operations,
stockholders' equity, and cash flow for the nine (9) months ended September
30, 2002, together with the notes thereto. All of these financial statements
will be included in the American Schedules.
(b) All such financial statements will have been prepared
in accordance with generally accepted accounting principles. The American
balance sheet presents fairly as of its date the financial condition of
American. American will not have, as of the date of such balance sheet,
except as and to the extent reflected or reserved against therein, any
liabilities or obligations (absolute or contingent) which should be reflected
in a balance sheet or the notes thereto, prepared in accordance with generally
accepted accounting principles, and all assets reflected therein will be
properly reported and present fairly the value of the assets of American in
accordance with generally accepted accounting principles. The statements of
income, stockholders' equity, and cash flows will reflect fairly the
information required to be set forth therein by generally accepted accounting
principles.
(c) American has filed all state, federal, and local
income tax returns required to be filed by it from inception to the date
hereof. Included in the American Schedules are true and correct copies of the
federal income tax returns of American filed since the date of inception.
None of such federal income tax returns has been examined by the Internal
Revenue Service. Each of such income tax returns reflects the taxes due for
the period covered thereby, except for amounts which, in the aggregate, are
immaterial.
(d) American does not owe any unpaid federal, state,
county, local, or other taxes (including any deficiencies, interest, or
penalties), except for taxes accrued but not yet due and payable, for which
American may be liable in its own right or as a transferee of the assets of,
or as a successor to, any other corporation or entity. Furthermore, except as
accruing in the normal course of business, American does not owe any accrued
and unpaid taxes to date of this Agreement.
(e) The books and records, financial and otherwise, of
American are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(f) American has good and marketable title to its assets
and, except as set forth in the American Schedules or the financial statements
of American or the notes thereto, has no material contingent liabilities,
direct or indirect, matured or unmatured.
2.5 Information. The information concerning American set forth in
this Agreement and in the American Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
2.6 Options or Warrants. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and unissued
American common stock, except options, warrants, calls or commitments, if any,
to which American is not a party and by which it is not bound.
2.7 Absence of Certain Changes or Events. Except as set forth in
this Agreement or the American Schedules, as of the most recent American
balance sheet, when received:
(a) there will not be (i) any material adverse change in
the business, operations, properties, assets, or condition of American; or
(ii) any damage, destruction, or loss to American (whether or not covered by
insurance) materially and adversely affecting the business, operations,
properties, assets, or condition of American;
(b) American will not have (i) amended its certificate of
incorporation or bylaws; (ii) declared or made, or agreed to declare or make,
any payment of dividends or distributions of any assets of any kind whatsoever
to stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the aggregate
are extraordinary or material considering the business of American; (iv) made
any material change in its method of management, operation, or accounting; (v)
entered into any other material transaction which is not in the ordinary
course of business; (vi) made any accrual or arrangement for payment of
bonuses or special compensation of any kind or any severance or termination
pay to any present or former officer or employee; (vii) increased the rate of
compensation payable or to become payable by it to any of its officers or
directors or any of its employees whose monthly compensation exceeds $1,000;
or (viii) made any increase in any profit sharing, bonus, deferred
compensation, insurance, pension, retirement, or other employee benefit plan,
payment, or arrangement made to, for, or with its officers, directors, or
employees; and
(c) American will not have (i) borrowed or agreed to
borrow any funds or incurred, or become subject to, any material obligation or
liability (absolute or contingent) except liabilities incurred in the ordinary
course of business, and except for capital raised by issuance of debt or
equity in a private placement or other capital raising transaction deemed
advisable by American and/or Feihe Dairy Group; (ii) paid any material
obligation or liability (absolute or contingent) other than current
liabilities reflected in or shown on the most recent American balance sheet,
and current liabilities incurred since that date in the ordinary course of
business; (iii) sold or transferred, or agreed to sell or transfer, any of its
assets, properties, or rights (except assets, properties, or rights not used
or useful in its business which, in the aggregate have a value of less than
$1,000), or canceled, or agreed to cancel, any debts or claims (except debts
or claims which in the aggregate are of a value of less than $1,000); (iv)
made or permitted any amendment or termination of any contract, agreement, or
license to which it is a party if such amendment or termination is material,
considering the business of American; or (v) issued, delivered, or agreed to
issue or deliver any stock, bonds or other corporate securities including
debentures (whether authorized and unissued or held as treasury stock).
2.8 Title and Related Matters. American has good and marketable
title to all of its properties, inventory, interests in properties, and
assets, real and personal, which will be reflected in the most recent American
balance sheet or acquired after that date (except properties, interests in
properties, and assets sold or otherwise disposed of since such date in the
ordinary course of business), free and clear of all liens, pledges, charges,
or encumbrances except (a) as such assets may be affected by laws of the
Republic of China; (b) statutory liens or claims not yet delinquent; (c) such
imperfections of title and easements as do not and will not materially detract
from or interfere with the present or proposed use of the properties subject
thereto or affected thereby or otherwise materially impair present business
operations on such properties; and (c) as described in the American Schedules.
Except as set forth in the American Schedules, American owns, free and clear
of any liens, claims, encumbrances, royalty interests, or other restrictions
or limitations of any nature whatsoever, any and all products it is currently
manufacturing, including the underlying technology and data, and all
procedures, techniques, marketing plans, business plans, methods of
management, or other information utilized in connection with American's
business. Except as set forth in the American Schedules, no third party has
any right to, and American has not received any notice of infringement of or
conflict with asserted rights of others with respect to any product,
technology, data, trade secrets, know-how, proprietary techniques, trademarks,
service marks, tradenames, or copyrights which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling, or finding, would have a
materially adverse affect on the business, operations, financial condition,
income, or business prospects of American or any material portion of its
properties, assets, or rights.
2.9 Litigation and Proceedings. Except as set forth in the
American Schedules, there are no actions, suits, proceedings, or
investigations pending or, to the knowledge of American after reasonable
investigation, threatened by or against American or affecting American or its
properties, at law or in equity, before any court or other governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind.
American does not have any knowledge of any default on its part with respect
to any judgment, order, writ, injunction, decree, award, rule, or regulation
of any court, arbitrator, or governmental agency or instrumentality or of any
circumstances which, after reasonable investigation, would result in the
discovery of such a default.
2.10 Contracts.
(a) American has provided, or will provide Lazarus on
reasonable request, copies of all material contracts, agreements, franchises,
license agreements, or other commitments to which American is a party or by
which it or any of its assets, products, technology, or properties are bound;
(b) All contracts, agreements, franchises, license
agreements, and other commitments to which American is a party or by which its
properties are bound and which are material to the operations of American
taken as a whole are valid and enforceable by American in all respects, except
as limited by bankruptcy and insolvency laws and by other laws affecting the
rights of creditors generally; and
(c) Except as described in the American Schedules,
American is not a party to or bound by, and the properties of American are not
subject to, any contract, agreement, other commitment or instrument; any
charter or other corporate restriction; or any judgment, order, writ,
injunction, decree, or award which materially and adversely affects, or in the
future may (as far as American can now foresee) materially and adversely
affect, the business, operations, properties, assets, or condition of
American.
2.11 Material Contract Defaults. American is not in default in any
material respect under the terms of any outstanding contract, agreement,
lease, or other commitment which is material to the business, operations,
properties, assets, or condition of American and there is no event of default
in any material respect under any such contract, agreement, lease, or other
commitment in respect of which American has not taken adequate steps to
prevent such a default from occurring.
2.12 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed
of trust, or other material contract, agreement, or instrument to which
American is a party or to which any of its properties or operations are
subject.
2.13 Compliance With Laws and Regulations. American has complied
with all applicable statutes and regulations of any federal, state, or other
governmental entity or agency thereof, except to the extent that noncompliance
would not materially and adversely affect the business, operations,
properties, assets, or condition of American or except to the extent that
noncompliance would not result in the incurrence of any material liability for
American.
2.14 Approval of Agreement. The board of directors of American has
authorized the execution and delivery of this Agreement by American, has
approved the transactions contemplated hereby, and approved the submission of
this Agreement and the transactions contemplated hereby to the shareholders of
American for their approval with the recommendation that the reorganization be
accepted.
2.15 Material Transactions or Affiliations. Set forth in the
American Schedules is a description of every material contract, agreement, or
arrangement between American and any predecessor and any person who was at the
time of such contract, agreement, or arrangement an officer, director, or
person owning of record, or known by American to own beneficially, 10% or more
of the issued and outstanding common stock of American and which is to be
performed in whole or in part after the date hereof or which was entered into
not more than three years prior to the date hereof. In all of such
transactions, the amount paid or received, whether in cash, in services, or in
kind, is, had been during the full term thereof, and is required to be during
the unexpired portion of the term thereof, no less favorable to American than
terms available from otherwise unrelated parties in arm's length transactions.
Except as disclosed in the American Schedules or otherwise disclosed herein,
no officer, director, or 10% shareholder of American has, or has had since
inception of American, any material interest, direct or indirect, in any
material transaction with American. There are no commitments by American,
whether written or oral, to lend any funds to, borrow any money from, or enter
into any other material transaction with, any such affiliated person.
2.16 American Schedules. American has delivered to Lazarus or will
deliver, as soon as practicable, the following schedules, which are
collectively referred to as the "American Schedules" and which consist of
separate schedules dated as of the date of execution of this Agreement and
instruments and data as of such date, all certified by the chief executive
officer of American as complete, true, and correct:
(a) a schedule containing complete and correct copies of
the certificate of incorporation, as amended, and bylaws of American in effect
as of the date of this Agreement;
(b) a schedule containing the financial statements of
American identified in paragraph 2.4(c);
(c) a schedule requested by Lazarus, containing true and
correct copies of all material contracts, agreements, or other instruments to
which American is a party or by which it or its properties are bound,
specifically including all contracts, agreements, or arrangements referred to
in Section 2.15;
(d) a schedule setting forth a description of any material
adverse change in the business, operations, property, inventory, assets, or
condition of American since the date of the most recent American balance
sheet, required to be provided pursuant to section 2.7 hereof; and
(e) a schedule setting forth any other information,
together with any required copies of documents, required to be disclosed in
the American Schedules by sections 2.1 through 2.16.
American shall cause the American Schedules and the instruments and data
delivered to Lazarus hereunder to be updated after the date hereof up to and
including the Closing Date.
ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF SHAREHOLDERS
As an inducement to, and to obtain reliance of Lazarus, the Shareholders
represent and warrant as follows:
3.1 Ownership of American Shares. Each American shareholder hereby
represents and warrants with respect to itself that it is the legal and
beneficial owner of the number of American shares set forth on Schedule 1(a)
of this Agreement, free and clear of any claims, charges, equities, liens,
security interests, and encumbrances whatsoever, and each such shareholder has
full right, power, and authority to transfer, assign, convey, and deliver its
American shares; and delivery of such shares at the closing will convey to
Lazarus good and marketable title to such shares free and clear of any claims,
charges, equities, liens, security interests, and encumbrances whatsoever.
3.2 Knowledge of Representations. To their best knowledge and
belief, the representations of American in Article II, above, are true,
accurate and complete.
ARTICLE IV
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF LAZARUS
As an inducement to, and to obtain the reliance of American and the
Shareholders, Lazarus represents and warrants as follows:
4.1 Organization. Lazarus is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Utah, and has
the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business in all material respects as it is now being conducted, and there is
no jurisdiction in which it is not qualified in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Lazarus Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation and
bylaws of Lazarus as in effect on the date hereof. The execution and delivery
of this Agreement does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of Lazarus' articles of
incorporation or bylaws. Lazarus has taken all action required by law, its
articles of incorporation, its bylaws, or otherwise to authorize the execution
and delivery of this Agreement, and Lazarus has full power, authority, and
legal right and has taken all action required by law, its articles of
incorporation, bylaws, or otherwise to consummate the transactions herein
contemplated.
4.2 Capitalization. Lazarus's authorized capitalization consists
of 50,000,000 shares of common stock, par value $0.001, of which 7,485,417
shares are issued and outstanding. All issued and outstanding shares are
legally issued, fully paid, and non-assessable and not issued in violation of
the pre-emptive or other rights of any person.
4.3 Subsidiaries. Lazarus does not have any subsidiaries and does
not own, beneficially or of record, any shares of any other corporation.
4.4 Financial Statements.
(a) Included in the Lazarus Schedules are the audited
balance sheets of Lazarus as of December 31, 2001 and 2000, and the related
audited statements of operations, stockholders' equity, and cash flow for the
two fiscal years ended December 31, 2001 together with the notes to such
statements and the opinion of HJ & Associates, independent certified public
accountants, with respect thereto; the unaudited balance sheets of Lazarus as
of September 30, 2002; and the related unaudited statements of operations,
stockholders' equity, and cash flow for the nine-month period ended September
30, 2002, together with the notes to such statements.
(b) All such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved. The Lazarus balance sheets present fairly as
of their respective dates the financial condition of Lazarus. Lazarus did not
have as of the date of any such Lazarus balance sheet, except as and to the
extent reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected in a balance sheet or the
notes thereto prepared in accordance with generally accepted accounting
principles, and all assets reflected therein are properly reported and present
fairly the value of the assets of Lazarus, in accordance with generally
accepted accounting principles. The statements of operations, stockholders'
equity, and cash flow reflect fairly the information required to be set forth
therein by generally accepted accounting principles.
(c) Lazarus has no liabilities with respect to the payment
of any federal, state, county, local, or other taxes (including any
deficiencies, interest, or penalties), except for taxes accrued but not yet
due and payable.
(d) Lazarus has filed all state, federal, or local income
tax returns required to be filed by it from inception to the date hereof.
Included in the Lazarus Schedules are true and correct copies of the federal
income tax returns of Lazarus filed since the date of inception. None of such
federal income tax returns have been examined by the Internal Revenue Service.
Each of such income tax returns reflects the taxes due for the period covered
thereby, except for amounts which, in the aggregate, are immaterial.
(e) The books and records, financial and otherwise, of
Lazarus are in all material respects complete and correct and have been
maintained in accordance with good business and accounting practices.
(f) Lazarus has good and marketable title to its assets
and, except as set forth in the Lazarus Schedules or the Financial Statements
of Lazarus or the notes thereto, has no material contingent liabilities,
direct or indirect, matured or unmatured.
4.5 Information. The information concerning Lazarus set forth in
this Agreement and the Lazarus Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
4.6 Options or Warrants. Except as set forth in Schedule 2, there
are no existing options, warrants, calls, or commitments of any character
relating to authorized and unissued stock of Lazarus, except options,
warrants, calls, or commitments, if any, to which Lazarus is not a party and
by which it is not bound.
4.7 Absence of Certain Changes or Events. Except as described
herein or in the Lazarus Schedules, since the date of the most recent Lazarus
balance sheet:
(a) there has not been (i) any material adverse change in
the business, operations, properties, assets, or condition of Lazarus (whether
or not covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or condition of Lazarus;
(b) Lazarus has not (i) amended its articles of
incorporation or bylaws; (ii) declared or made, or agreed to declare or make
any payment of dividends or distributions of any assets of any kind whatsoever
to stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the aggregate
are extraordinary or material considering the business of Lazarus; (iv) made
any material change in its method of management, operation, or accounting; (v)
entered into any other material transactions; (vi) made any accrual or
arrangement for or payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or employee;
(vii) increased the rate of compensation payable or to become payable by it to
any of its officers or directors or any of its employees whose monthly
compensation exceeds $1,000; or (viii) made any increase in any profit
sharing, bonus, deferred compensation, insurance, pension, retirement, or
other employee benefit plan, payment, or arrangement, made to, for, or with
its officers, directors, or employees;
(c) Lazarus has not (i) granted or agreed to grant any
options, warrants, or other rights for its stocks, bonds, or other corporate
securities calling for the issuance thereof; (ii) borrowed or agreed to borrow
any funds or incurred, or become subject to, any material obligation or
liability (absolute or contingent) except liabilities incurred in the ordinary
course of business; (iii) paid or agreed to pay any material obligation or
liability (absolute or contingent) other than current liabilities reflected in
or shown on the most recent Lazarus balance sheet and current liabilities
incurred since that date in the ordinary course of business and professional
and other fees and expenses incurred in connection with the preparation of
this Agreement and the consummation of the transactions contemplated hereby;
(iv) sold or transferred, or agreed to sell or transfer, any of its assets,
property, or rights (except assets, property, or rights not used or useful in
its business which, in the aggregate have a value of less than $1,000), or
canceled, or agreed to cancel, any debts or claims (except debts or claims
which in the aggregate are of a value of less than $1,000); (v) made or
permitted any amendment or termination of any contract, agreement, or license
to which it is a party if such amendment or termination is material,
considering the business of Lazarus; or (vi) issued, delivered, or agreed to
issue or deliver any stock, bonds, or other corporate securities including
debentures (whether authorized and unissued or held as treasury stock), except
in connection with this Agreement; and
(d) to the best knowledge of Lazarus, it has not become
subject to any law or regulation which materially and adversely affects, or in
the future may adversely affect, the business, operations, properties, assets,
or condition of Lazarus.
4.8 Title and Related Matters. Lazarus has good and marketable
title to all of its properties, interest in properties, and assets, real and
personal, which are reflected in the Lazarus balance sheet or acquired after
that date (except properties, interest in properties, and assets sold or
otherwise disposed of since such date in the ordinary course of business),
free and clear of all liens, pledges, charges, or encumbrances except (a)
statutory liens or claims not yet delinquent; (b) such imperfections of title
and easements as do not and will not materially detract from or interfere with
the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in the Lazarus Schedules.
4.9 Litigation and Proceedings. There are no actions, suits, or
proceedings pending or, to the knowledge of Lazarus, threatened by or against
or affecting Lazarus, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. Lazarus does not have any knowledge of any default on
its part with respect to any judgment, order, writs, injunction, decree,
award, rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality.
4.10 Contracts. Lazarus is not a party to any material contract,
agreement, or other commitment.
4.11 No Conflict With Other Instruments. The consummation of the
transactions contemplated by this Agreement will not result in the breach of
any term or provision of, or constitute a default under, any indenture,
mortgage, deed of trust, or other material agreement or instrument to which
Lazarus is a party or to which it or any of its assets or operations are
subject.
4.12 Governmental Authorizations. Lazarus has all licenses,
franchises, permits, and other government authorizations, that are legally
required to enable it to conduct its business operations in all material
respects as conducted on the date hereof. Except for compliance with federal
and state securities or corporation laws, as hereinafter provided, no
authorization, approval, consent, or order of, or registration, declaration,
or filing with, any court or other governmental body is required in connection
with the execution and delivery by Lazarus of this Agreement and the
consummation by Lazarus of the transactions contemplated hereby.
4.13 Compliance With Laws and Regulations. To the best of its
knowledge, Lazarus has complied with all applicable statutes and regulations
of any federal, state, or other applicable governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or conditions
of Lazarus or except to the extent that noncompliance would not result in the
incurrence of any material liability. This compliance includes, but is not
limited to, the filing of all reports to date with federal and state
securities authorities in connection with Lazarus's filing, approval and
completion of its recent offering of securities pursuant to Rule 402 of
Regulation C and Form S-18 promulgated by the U.S. Securities and Exchange
Commission.
4.14 Insurance. Lazarus owns no insurable properties and carries no
casualty or liability insurance.
4.15 Approval of Agreement. The board of directors of Lazarus has
authorized the execution and delivery of this Agreement by Lazarus and has
approved this Agreement and the transactions contemplated hereby.
4.16 Continuity of Business Enterprises. Lazarus has no commitment
or present intention to liquidate Lazarus or sell or otherwise dispose of a
material portion of Lazarus' business or assets following the consummation of
the transactions contemplated hereby.
4.17 Material Transactions of Affiliations. Except as disclosed
herein and in the Lazarus Schedules, there exists no material contract,
agreement, or arrangement between Lazarus and any person who was at the time
of such contract, agreement, or arrangement an officer, director, or person
owning of record or known by Lazarus to own beneficially, 10% or more of the
issued and outstanding common stock of Lazarus and which is to be performed in
whole or in part after the date hereof or was entered into not more than three
years prior to the date hereof. Neither any officer, director, nor 10%
shareholder of Lazarus has, or has had during the last preceding full fiscal
year, any known interest in any material transaction with Lazarus which was
material to the business of Lazarus. Lazarus has no commitment, whether
written or oral, to lend any funds to, borrow any money from, or enter into
any other material transaction with any such affiliated person.
4.18 Employment Matters. Lazarus has no employees other than its
executive officers.
4.19 Lazarus Schedules. Lazarus has delivered to American, or will
deliver as soon as practicable at American's request, the following schedules,
which are collectively referred to as the "Lazarus Schedules," which are dated
the date of this Agreement, all certified by an officer to be complete, true,
and accurate:
(a) a schedule containing complete and accurate copies of
the articles of incorporation and bylaws of Lazarus as in effect as of the
date of this Agreement;
(b) a schedule containing any filings with the U.S.
Securities and Exchange Commission (the "SEC"), not available on ▇▇▇▇▇;
(c) a schedule containing a copy of the federal income tax
returns of Lazarus identified in paragraph 4.4(d);
(d) a schedule setting forth the description of any
material adverse change in the business, operations, property, assets, or
condition of Lazarus since the date of the most recent Lazarus balance sheet,
required to be provided pursuant to section 4.7 hereof; and
(f) a schedule setting forth any other information,
together with any required copies of documents, required to be disclosed in
the Lazarus Schedules by sections 4.1 through 4.18.
Lazarus shall cause the Lazarus Schedules and the instruments and data
delivered to Lazarus hereunder to be updated after the date hereof up to and
including the Closing Date.
ARTICLE V
SPECIAL COVENANTS
5.1 Stockholder Meeting of Lazarus. As soon as practicable
following the execution of this Agreement, and prior to the Closing, Lazarus
shall call a special meeting of its shareholders to approve the following
proposals:
(a) the election of ▇▇. ▇▇▇▇ You-Bin and Mr. ▇▇▇ ▇▇▇ as
directors of Lazarus;
(b) a 19-for-1 reverse split or consolidation of the
outstanding common stock of Lazarus;
(c) the amendment to the articles of incorporation of
Lazarus to change its name to "American Dairy, Inc.," or such other name to be
determined by American (the "New Name");
(d) the approval of the 2003 Stock Option, SAR and Stock
Bonus Plan of Lazarus, attached as Schedule 3 hereto; and
(e) to take such other actions as the directors may
determine are necessary or appropriate, including (if necessary) the approval
of this Agreement and the transactions contemplated herein.
5.2 Consulting Agreement. At Closing, Lazarus will enter into a
Consulting Agreement with Danbury Investment, LC, an affiliate of ▇▇▇▇
▇▇▇▇▇▇▇, President, and a principal shareholder of Lazarus, in the form
attached hereto as Exhibit "A."
5.3 Access to Properties and Records. Lazarus and American will
each afford to the officers and authorized representatives of the other full
access to the properties, books, and records of Lazarus or American as the
case may be, in order that each may have full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the
other, and each will furnish the other with such additional financial and
operating data and other information as to the business and properties of
Lazarus or American, as the case may be, as the other shall from time to time
reasonably request.
5.4 Delivery of Books and Records. At the Closing, Lazarus shall
deliver to American the originals of the corporate minute books, books of
account, contracts, records, and all other books or documents of Lazarus now
in the possession of Lazarus or its representatives.
5.5 Special Covenants and Representations Regarding the Lazarus
Stock. The consummation of this Agreement and the transactions herein
contemplated, including the issuance of the Lazarus Stock to the shareholders
of American as contemplated hereby, constitutes the offer and sale of
securities under the Securities Act and applicable state statutes. Such
transaction shall be consummated in reliance on exemptions from the
registration and prospectus delivery requirements of such statutes which
depend, inter alia, upon the circumstances under which the American
shareholders acquire such securities. In connection with reliance upon
exemptions from the registration and prospectus delivery requirements for such
transactions, at the Closing, American shall cause to be delivered, and the
shareholders shall deliver to Lazarus, letters of representation in the form
attached hereto as Schedule 4.
5.6 Approval of Certain Shareholders. Lazarus hereby represents
that holders of in excess of 50% of the issued and outstanding stock of
Lazarus have agreed to vote in favor of the matters in Section 5.1, subject to
completion of due diligence and the material accuracy of the representations
and warranties in this Agreement. Lazarus will obtain a written agreement
from these shareholders, subject to these conditions, within ten (10) days of
this Agreement.
5.7 Third Party Consents and Certificates. Lazarus and American
agree to cooperate with each other in order to obtain any required third party
consents to this Agreement and the transactions herein and therein
contemplated.
5.8 Actions Prior to Closing.
(a) From and after the date of this Agreement until the
Closing Date and except as set forth in the Lazarus or American Schedules or
as permitted or contemplated by this Agreement, Lazarus and American
respectively, will each:
(i) carry on its business in substantially the
same manner as it has heretofore;
(ii) maintain and keep its properties in states of
good repair and condition as at present, except for depreciation due to
ordinary wear and tear and damage due to casualty;
(iii) maintain in full force and effect insurance
comparable in amount and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its
obligation under material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(v) use its best efforts to maintain and preserve
its business organization intact, to retain its key employees, and to maintain
its relationship with its material suppliers and customers; and
(vi) fully comply with and perform in all material
respects all obligations and duties imposed on it by all federal and state
laws and all rules, regulations, and orders imposed by federal or state
governmental authorities.
(b) From and after the date of this Agreement until the
Closing Date, neither Lazarus nor American will:
(i) make any change in their articles of
incorporation or bylaws;
(ii) take any action described in section 2.7 in
the case of American, or in section 3.7, in the case of Lazarus (all except as
permitted therein or as disclosed in the applicable party's schedules); or
(iii) enter into or amend any contract, agreement,
or other instrument of any of the types described in such party's schedules,
except that a party may enter into or amend any contract, agreement, or other
instrument in the ordinary course of business involving the sale of goods or
services.
5.9 Sales Under Rules 144 or 145, If Applicable.
(a) Lazarus will use its best efforts to at all times
comply with the reporting requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), including timely filing all periodic reports
required under the provisions of the Exchange Act and the rules and
regulations promulgated thereunder.
(b) Upon being informed in writing by any person holding
restricted stock of Lazarus as of the date of this Agreement that such person
intends to sell any shares under Rule 144 or Rule 145 promulgated under the
Securities Act (including any rule adopted in substitution or replacement
thereof), Lazarus will certify in writing to such person that it has filed all
of the reports required to be filed by it under the Exchange Act to enable
such person to sell such person's restricted stock under Rule 144 or 145, as
may be applicable in the circumstances, or will inform such person in writing
that it has not filed any such report or reports.
(c) If any certificate representing any such restricted
stock is presented to Lazarus' transfer agent for registration of transfer in
connection with any sale theretofore made under Rule 144 or 145, provided such
certificate is duly endorsed for transfer by the appropriate person(s) or
accompanied by a separate stock power duly executed by the appropriate
person(s) in each case with reasonable assurances that such endorsements are
genuine and effective, and is accompanied by an opinion of counsel
satisfactory to Lazarus and its counsel that such transfer has complied with
the requirements of Rule 144 or 145, as the cases may be, Lazarus will
promptly instruct its transfer agent to register such transfer and to issue
one or more new certificates representing such shares to the transferee and,
if appropriate under the provisions of Rule 144 or 145, as the case may be,
free of any stop transfer order or restrictive legend. The provisions of this
Section 5.9 shall survive the Closing and the consummation of the transactions
contemplated by this Agreement.
5.10 Indemnification.
(a) American and the Shareholders hereby agree to
indemnify Lazarus and each of the officers, agents and directors of Lazarus as
of the date of execution of this Agreement against any loss, liability, claim,
damage, or expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever), to
which it or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentation made under Article II of this Agreement.
The indemnification provided for in this paragraph shall survive the Closing
and consummation of the transactions contemplated hereby and termination of
this Agreement.
(b) Lazarus hereby agrees to indemnify American and each
of the officers, agents and directors of American as of the date of execution
of this Agreement against any loss, liability, claim, damage, or expense
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever), to which it or they may
become subject arising out of or based on any inaccuracy appearing in or
misrepresentation made under Article IV of this Agreement. The
indemnification provided for in this paragraph shall survive the Closing and
consummation of the transactions contemplated hereby and termination of this
Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF LAZARUS
The obligations of Lazarus under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
6.1 Accuracy of Representations. The representations and
warranties made by American and the Shareholders in this Agreement were true
when made and shall be true at the Closing Date with the same force and effect
as if such representations and warranties were made at and as of the Closing
Date (except for changes therein permitted by this Agreement), and American
and the Shareholders shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or complied with by
American and the Shareholders prior to or at the Closing. Lazarus shall be
furnished with a certificate, signed by a duly authorized officer of American
and dated the Closing Date, to the foregoing effect.
6.2 Officer's Certificates. Lazarus shall have been furnished with
a certificate dated the Closing Date and signed by a duly authorized officer
of American to the effect that no litigation, proceeding, investigation, or
inquiry is pending or, to the best knowledge of American threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement, or, to the extent not disclosed
in the American Schedules, by or against American which might result in any
material adverse change in any of the assets, properties, business, or
operations of American.
6.3 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial
condition, business, or operations of American nor shall any event have
occurred which, with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial condition, business, or
operations of American.
6.4 Good Standing. Lazarus shall have received a certificate of
good standing from the Secretary of State of the state of Delaware or other
appropriate office, dated as of a date within ten days prior to the Closing
Date certifying that American Dairy Holdings, Inc. is in good standing as a
corporation in the state of Delaware and has filed all tax returns required to
have been filed by it to date and has paid all taxes reported as due thereon.
6.5 Officer and Director Questionnaires. Lazarus shall have
received officer and director questionnaires completed and signed by each
executive officer and director of American in form and substance reasonably
satisfactory to Lazarus and its counsel which shall contain information for
use by Lazarus in reporting the transaction contemplated hereby on Form 8-K to
be filed with the Securities and Exchange Commission.
6.6 Other Items.
(a) Lazarus shall have received a shareholders list of
American containing the name, address, and number of shares held by each
American shareholder as of the date of Closing certified by an executive
officer of American as being true, complete, and accurate.
(b) Lazarus shall have received such further documents,
certificates, or instruments relating to the transactions contemplated hereby
as Lazarus may reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF AMERICAN AND THE SHAREHOLDERS
The obligations of American and the Shareholders under this Agreement
are subject to the satisfaction, at or before the Closing Date, of the
following conditions:
7.1 Accuracy of Representations. The representations and
warranties made by Lazarus in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Lazarus shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Lazarus prior to or at the
Closing. American shall have been furnished with a certificate, signed by a
duly authorized executive officer of Lazarus and dated the Closing Date, to
the foregoing effect.
7.2 Stockholder Approval. The stockholders of Lazarus shall have
approved this Agreement, the transactions contemplated hereby, and the other
matters described in Section 5.1.
7.3 Officer's Certificate. American shall have been furnished with
a certificate dated the Closing Date and signed by a duly authorized executive
officer of Lazarus to the effect that no litigation, proceeding,
investigation, or inquiry is pending or, to the best knowledge of Lazarus
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Agreement.
7.4 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial
condition, business, or operations of Lazarus nor shall any event have
occurred which, with the lapse of time or the giving of notice, may cause or
create any material adverse change in the financial condition, business, or
operations of Lazarus.
7.5 Good Standing. American shall have received a certificate of
good standing from the Secretary of State of the state of Utah or other
appropriate office, dated as of a date within ten days prior to the Closing
Date certifying that Lazarus is in good standing as a corporation in the state
of Utah and has filed all tax returns required to have been filed by it to
date and has paid all taxes reported as due thereon.
7.6 Other Items.
(a) American shall have received a shareholders list of
Lazarus, current at least ten (10) days prior to Closing, containing the name,
address and number of shares held by each such Lazarus Shareholder certified
by an executive officer of Lazarus as being true, complete and accurate.
(b) American shall have received such further documents,
certificates, or instruments relating to the transactions contemplated hereby
as American may reasonably request.
ARTICLE VIII
TERMINATION
8.1 Termination.
(a) This Agreement may be terminated by the board of
directors of either Lazarus or American at any time prior to the Closing Date
if:
(i) there shall be any actual or threatened
action or proceeding before any court or any governmental body which shall
seek to restrain, prohibit, or invalidate the transactions contemplated by
this Agreement and which, in the judgment of such board of directors, made in
good faith and based on the advice of its legal counsel, makes it inadvisable
to proceed with the exchange contemplated by this Agreement;
(ii) any of the transactions contemplated hereby
are disapproved by any regulatory authority whose approval is required to
consummate such transactions or in the judgment of such board of directors,
made in good faith and based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will be obtained
only on a condition or conditions which would be unduly burdensome, making it
inadvisable to proceed with the exchange; or
(iii) there shall have been any change after the
date of the latest balance sheets of Lazarus and American, respectively, in
the assets, properties, business, or financial condition of Lazarus and
American, which could have a materially adverse affect on the value of the
business of Lazarus and American respectively, except any changes disclosed in
the Lazarus and American Schedules, as the case may be, dated as of the date
of execution of this Agreement.
In the event of termination pursuant to this paragraph (a) of section 8.1, no
obligation, right, or liability shall arise hereunder, and each party shall
bear all of the expenses incurred by it in connection with the negotiation,
drafting, and execution of this Agreement and the transactions herein
contemplated.
(b) This Agreement may be terminated at any time prior to
the Closing by action of the board of directors of Lazarus if American shall
fail to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties of
American contained herein shall be inaccurate in any material respect. If
this Agreement is terminated pursuant to this paragraph (b) of section 8.1,
this Agreement shall be of no further force or effect, and no obligation,
right, or liability shall arise hereunder, except that American shall bear its
own costs as well as the costs incurred by Lazarus in connection with the
negotiation, preparation, and execution of this Agreement and qualifying the
offer and sale of securities contemplated hereby for exemption from the
registration requirements of state and federal securities laws.
(c) This Agreement may be terminated at any time prior to
the Closing by action of the board of directors of American if Lazarus shall
fail to comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties of
Lazarus contained herein shall be inaccurate in any material respect. If this
Agreement is terminated pursuant to this paragraph (c) of section 8.1, this
Agreement shall be of no further force or effect, and no obligation, right, or
liability shall arise hereunder, except that Lazarus shall bear its own costs
as well as the costs of American incurred in connection with the negotiation,
preparation, and execution of this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 Brokers. Lazarus and American agree that there were no finders
or brokers involved in bringing the parties together or who were instrumental
in the negotiation, execution, or consummation of this Agreement. Lazarus and
American each agree to indemnify the other against any claim by any third
person other than those described above for any commission, brokerage, or
finders' fee arising from the transactions contemplated hereby based on any
alleged agreement or understanding between the indemnifying party and such
third person, whether express or implied from the actions of the indemnifying
party.
9.2 Governing Law. This Agreement shall be governed by, enforced,
and construed under and in accordance with the laws of the United States of
America and, with respect to matters of state law, with the laws of Utah. Any
dispute arising under or in any way related to this Agreement will be
submitted to binding arbitration before a single arbitrator by the American
Arbitration Association in accordance with the Association's commercial rules
then in effect. The arbitration will be conducted in Salt Lake City, Utah.
The decision of the arbitrator will set forth in reasonable detail the basis
for the decision and will be binding on the parties. The arbitration award
may be confirmed by any court of competent jurisdiction.
9.3 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it
or sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Lazarus, to: Lazarus Industries, Inc.
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to American, to: American Dairy Holdings, Inc.
c/o American Eastern Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the
Shareholders, to: c/o ▇▇▇▇▇▇▇ ▇▇▇▇
American Eastern Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
9.4 Attorney's Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
9.5 Confidentiality. Each party hereto agrees with the other
parties that, unless and until the transactions contemplated by this Agreement
have been consummated, it and its representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director, or
employee, or from any books or records or from personal inspection, os such
other party, and shall not use such data or information or disclose the same
to others, except (i) to the extent such data or information is published, is
a matter of public knowledge, or is required by law to be published; and (ii)
to the extent that such data or information must be used or disclosed in order
to consummate the transactions contemplated by this Agreement.
9.6 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules
delivered pursuant to this Agreement.
9.7 Third Party Beneficiaries. This contract is solely between
Lazarus and American, and, except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor, or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
9.8 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof, including
this Agreement alone fully and completely expresses the agreement of the
parties relating to the subject matter hereof. There are no other courses of
dealing, understandings, agreements, representations, or warranties, written
or oral, except as set forth herein.
9.9 Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated.
9.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
9.11 Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and
no waiver by any party of the performance of any obligation by the other shall
be construed as a waiver of the same or any other default then, theretofore,
or thereafter occurring or existing. At any time prior to the Closing Date,
this Agreement may be amended by a writing signed by all parties hereto, with
respect to any of the terms contained herein, and any term or condition of
this Agreement may be waived or the time for performance hereof may be
extended by a writing signed by the party or parties for whose benefit the
provision is intended.
[signature pages follow]
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly
authorized, as of the date first above-written.
LAZARUS INDUSTRIES, INC.
ATTEST:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- ------------------------------------
Secretary or Assistant Secretary ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
AMERICAN DAIRY HOLDINGS, INC.
ATTEST:
/s/ By /s/ Leng You-Bin
-------------------------------- ------------------------------------
Secretary or Assistant Leng You-Bin, President
SHAREHOLDERS:
/s/ Leng You-Bin /s/ ▇▇▇ ▇▇▇▇▇-▇▇▇
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Leng You-▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇
/s/ ▇▇ ▇▇▇-Gang
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▇▇ ▇▇▇-Gang